United States v. Oreckinto ( 2019 )

17-1589-cr
United States of America v. Oreckinto
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 29th day of May, two thousand nineteen.
PRESENT:
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
RICHARD J. SULLIVAN,*
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 17-1589-cr
Andrew Oreckinto,
Defendant-Appellant.
___________________________________
FOR APPELLEE: MICHAEL J. GUSTAFSON, Asst. U.S.
Atty., New Haven, CT (Marc H. Silverman,
Asst. U.S. Atty., New Haven, CT, on the
brief), for John H. Durham, U.S. Atty. for the
District of Connecticut.
FOR DEFENDANT-APPELLANT: TRACY HAYES, Asst. Federal Defender,
for Terence S. Ward, Federal Defender for
the District of Connecticut, New Haven, CT.
* Judge Richard J. Sullivan was a District Judge of the United States District Court for the
Southern District of New York, sitting by designation, at the time this case was heard.
Appeal from a judgment of the United States District Court for the District of Connecticut
(Meyer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Andrew Oreckinto appeals from the May 15, 2017 judgment of the
United States District Court for the District of Connecticut convicting him, following a jury trial,
of theft from an interstate shipment of cigarettes in violation of 18 U.S.C. § 659. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
presented for review.
Defendant raises two claims on appeal: (1) that the government did not present sufficient
evidence to prove that he stole an “interstate shipment” under Section 659, and (2) that the
government made improper statements and displayed inflammatory and prejudicial images to the
jury during summation. We address each claim in turn.
I. Sufficiency of the Evidence
We evaluate challenges to the sufficiency of the evidence de novo. See United States v.
Soler, 759 F.3d 226, 229 (2d Cir. 2014). “In so doing, we view the evidence presented in the light
most favorable to the government, and we draw all reasonable inferences in its favor.” United
States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008) (quoting United States v. Autuori, 212 F.3d 105,
114 (2d Cir. 2000)). Accordingly, we do not disturb a jury’s verdict unless “the evidence that the
defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could
find guilt beyond a reasonable doubt.” United States v. Cuti, 720 F.3d 453, 461 (2d Cir. 2013)
(quoting United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004)).
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Drawing all reasonable inferences in the government’s favor, we conclude that the
government presented sufficient evidence at trial to prove the following facts.
On March 19, 2011, Defendant broke into the New Britain Candy Company (“NBCC”)
warehouse located in Wethersfield, Connecticut, and stole approximately 8,000 cartons of
cigarettes worth nearly $300,000. NBCC is wholly owned and operated by General Equities Inc.,
which also operates a chain of convenience stores along the East Coast called Food Bag. NBCC
is the “Food Bag fulfillment center” – that is, it “supplies all the products that you see in Food
Bag[]” stores, including cigarettes, candy, and other grocery items. Gov’t App’x at 106–08. As
of February 2017, there were 51 Food Bag locations: 35 in Connecticut, five in New York, five in
Massachusetts, three in Florida, two in New Jersey, and one in Pennsylvania. NBCC supplies
products to the Connecticut, New York, Massachusetts, and New Jersey Food Bag stores, but not
the Florida or Pennsylvania Food Bag stores.
NBCC does not manufacture any of its own cigarettes but rather purchases them from two
“major vendors” – Philip Morris and R.J. Reynolds – located in “the Virginia/North Carolina area.”
Id. at 109. When a shipment of cigarettes is delivered to NBCC, NBCC opens the shipment, cuts
the 60-carton cases in half, and moves them to the mezzanine of the warehouse, where they are
placed “in what’s called a slot, which is basically a roll rack that a picker can pick the cigarette
from for a specific order.” Id. at 111. The cartons then remain in storage until they are ready for
shipment to one of the Food Bag stores. No cigarettes are sold directly to consumers at the NBCC
warehouse.
When a Food Bag store places a specific order, the order is transferred to NBCC’s
mainframe computer, which generates a “pick list” – a list that NBCC workers use to “actually pick
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the product that’s being shipped.” Id. at 169. After the cigarettes are picked out, NBCC applies
tax stamps to each carton, sends them out to NBCC’s delivery trucks, and creates an invoice for
each order. Individual Food Bag stores are ultimately billed for each shipment. NBCC turns over
its entire stock of cigarettes approximately once every week and a half.
Defendant argues that the evidence compelled a finding that the interstate shipment of
cigarettes from the Virginia and North Carolina manufacturers to the NBCC warehouse in
Connecticut terminated when NBCC took custody of the cigarettes. We disagree.
In reviewing Defendant’s evidentiary challenge, we begin by considering the relevant
statutory text. See, e.g., United States v. Carter, 801 F.2d 78, 81–82 (2d Cir. 1986). Contrary to
Defendant’s argument, the text and purpose of Section 659 strongly suggest that a shipment retains
its interstate character even after it is moved from a truck to a temporary storage facility. First,
Congress specifically included “warehouse[s]” and “storage facilit[ies]” in Section 659’s list of
entities from which “goods or chattels . . . which constitute an interstate or foreign shipment of
freight, express, or other property” could be stolen. 18 U.S.C. § 659. Furthermore, we have
repeatedly recognized that Congress enacted Section 659 “to protect and promote the flow of goods
in interstate commerce,” United States v. Berger, 338 F.2d 485, 487 (2d Cir. 1964), “and that the
carrying out of this purpose is not to be hampered by technical legal conceptions,” United States v.
Astolas, 487 F.2d 275, 279 (2d Cir. 1973); see also United States v. Bryser, 954 F.2d 79, 86 (2d
Cir. 1992) (“We have long disagreed with crabbed interpretations of this statute.”). Thus, “the
determination that a shipment is interstate is essentially a practical one based on common sense and
administered on an ad hoc basis.” Astolas, 487 F.2d at 279.
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Undertaking this practical determination here in light of Section 659’s text and purpose –
and drawing all reasonable inferences in the government’s favor – we conclude that there was
sufficient evidence for a jury to find that Defendant stole the cigarettes while they were temporarily
stored at the NBCC warehouse, and that the stolen cigarettes remained on an interstate journey from
the North Carolina and Virginia cigarette manufacturers to the individual Food Bag stores located
in Connecticut, New York, Massachusetts, and New Jersey. The evidence presented at trial, and
outlined above, amply supports this finding.2 In arguing otherwise, Defendant relies upon the
clause in Section 659 that provides that “the waybill or other shipping document of such shipment
shall be prima facie evidence of the place from which and to which such shipment was made.” 18
U.S.C. § 659. However, while the shipping documents at issue here could certainly have been
used as prima facie evidence that the NBCC warehouse was the cigarette shipment’s final
destination, such prima facie evidence can still be contradicted. See, e.g., Prima Facie Evidence,
Black’s Law Dictionary (10th ed. 2014) (defining “prima facie evidence” as “[e]vidence that will
establish a fact . . . unless contradictory evidence is produced”). Here, the government contradicted
the prima facie evidence by presenting evidence of NBCC’s role as a temporary storage point
between the manufacturers and the individual Food Bag convenience stores. In sum, a reasonable
jury could have found that – bills of lading notwithstanding – the interstate shipment of cigarettes
had not yet terminated upon its arrival at the NBCC warehouse.
2
The district court held that “the interstate shipment requirement of § 659 may be satisfied on the
basis of evidence concerning the routine and normal practices of a business to ship all or a
significant portion of its inventory to out-of-state locations.” Appellant Add. at 10. Because we
conclude that the cigarettes at issue were part of a broader interstate shipment originating at the
cigarette manufacturers in North Carolina and Virginia, pausing at the NBCC warehouse in
Connecticut, and concluding at the individual retail stores where they were to be sold, we need not
decide whether the district court erred in its broader statutory holding.
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Our conclusion is not altered by the fact that it was NBCC – not the individual Food Bag
stores – that placed the purchase orders for the cigarettes from the North Carolina and Virginia
manufacturers. Even though NBCC technically “owned” the cigarettes at the time of the burglary,
the evidence demonstrated that such ownership was transitory. To repeat, NBCC took ownership
of the cigarettes solely for the purpose of storing them before transporting them to the Food Bag
locations in Connecticut, New York, Massachusetts, and New Jersey. As our sister circuits have
explained, a middleman buyer’s intent to reship goods can render those goods an “interstate
shipment” while in the middleman’s possession and until they reach their final destination. See,
e.g., United States v. Skoczen, 405 F.3d 537, 544–45 (7th Cir. 2005) (holding that shipments
remained interstate while being stored by the United States Customs Service even though the
Customs Service was a cosigner on the bill of lading); United States v. Williams, 559 F.2d 1243,
1248 (4th Cir. 1977) (holding that a gasoline shipment remained interstate while it was in a “storage
facility for a short period of time prior to its delivery to local distributors”); cf. United States v.
Garber, 626 F.2d 1144, 1152 (3d Cir. 1980) (holding that shipments from Chile to Connecticut had
not reached their “final destination,” and thus were still “foreign” for purposes of Section 659, while
paused in Philadelphia, in light of the shipper’s “active pursuit” of alternative purchasers).
Accordingly, on the record here, there was sufficient evidence to support the jury’s finding
that Defendant stole an interstate shipment of cigarettes in violation of 18 U.S.C. § 659.
II. Prosecutorial Misconduct
Defendant also challenges his conviction on the grounds that the government made
improper statements and displayed inflammatory images to the jury during its summation.
Specifically, Defendant argues (1) that the prosecutor misstated the law in summation when
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asserting that the theft “affected interstate commerce” and that “the interstate piece of the case”
could be satisfied if the theft interfered with future shipments, Appellant Br. at 39 (quoting Gov’t
App’x at 755, 808); (2) that, also during summation, the prosecutor improperly showed the jury an
image of the Defendant framed as their target, as well as an image of the Defendant with the caption
“Guilty,” Appellant Br. at 41; Doc. No. 21-1 at 5–6; and (3) that such errors substantially prejudiced
him. We review these claims de novo, see United States v. Daugerdas, 837 F.3d 212, 227 (2d Cir.
2016), and find no prejudicial error.
A defendant who “seeks to overturn his conviction based on alleged
prosecutorial misconduct in summation bears a ‘heavy burden.’” United States v. Farhane, 634
F.3d 127, 167 (2d Cir. 2011) (quoting United States v. Feliciano, 223 F.3d 102, 123 (2d Cir. 2000)).
The defendant must show not simply that a particular summation comment
was improper, but that the comment, viewed against the entire argument to the jury,
and in the context of the entire trial, was so severe and significant as to have
substantially prejudiced him . . . such that the resulting conviction was a denial of
due process.
United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012) (internal quotation marks, alterations, and
citations omitted). Further, because Defendant did not object to the prosecutor’s statements during
summation, we may not grant a new trial based on such statements “absent flagrant abuse.” United
States v. Sheehan, 838 F.3d 109, 128 (2d Cir. 2016) (quoting United States v. Zichettello, 208 F.3d
72, 103 (2d Cir. 2000)).
The prosecutor’s statements during summation fell well short of flagrant abuse. Even if
the prosecutor misstated the law on one occasion by referencing “interstate commerce” as a proxy
for the “interstate shipment” element, the prosecutor also repeatedly and properly instructed the
jury that it had to find the existence of an interstate shipment. Further, the prosecutor presented a
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proper interstate shipment theory to the jury, namely, that the cigarettes were still on an interstate
journey from the manufacturers to the individual Food Bag stores when they were stolen from the
warehouse. Thus, even if the prosecutor also referenced an erroneous interstate shipment theory,
when “viewed against the entire argument to the jury, and in the context of the entire trial,”
Williams, 690 F.3d at 75 (internal quotation marks omitted), the prosecutor’s conduct did not result
in substantial prejudice or amount to a flagrant abuse.
With respect to the slides that the prosecutor showed to the jury during summation, we find
no error, let alone prejudicial error. The slides at issue were not unduly provocative, nor did they
suggest that the jury should find Defendant guilty simply because the prosecutor said so.
Moreover, the district court specifically and correctly instructed the jury that it was “appropriate
for any party . . . to use this kind of demonstrative exhibit in connection with their closing
arguments,” and that the slideshow was “not evidence itself.” Gov’t App’x at 749; see United
States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir. 1990) (“In summation counsel are free to make
arguments which may be reasonably inferred from the evidence presented.”); see also, e.g., United
States v. Ruiz, 710 F.3d 1077, 1082–84 (9th Cir. 2013) (holding that the prosecutor’s use of a
PowerPoint presentation during summation to argue that the defendant was guilty did not result in
substantial prejudice). Thus, even if the prosecutor’s use of the slides was improper, any error did
not substantially prejudice Defendant.
We find that Defendant’s remaining arguments are without merit. Accordingly, we
AFFIRM the judgment of conviction entered by the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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