United States v. Sialeu , 524 F. App'x 734 ( 2013 )

11-3455-cr
United States v. Sialeu
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 “SUMMARY ORDER”). A PARTY CITING 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 3rd day of May, two thousand thirteen.
Present:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 11-3455-cr
JULIENNE SIALEU,
Defendant-Appellant.
_________________________________________
For Appellee: Michael A. Levy, Justin Anderson, Jennifer G. Rodgers,
Assistant United States Attorneys, for Preet Bharara, United
States Attorney for the Southern District of New York, New
York, NY.
For Defendant-Appellant: Julienne Sialeu, pro se, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Julienne Sialeu, proceeding pro se, appeals from a judgment of
conviction dated August 24, 2011, entered following a bench trial and conviction for
willfully and knowingly filing false reports of her assets, household composition, and
household income in violation of 18 U.S.C. § 1001 and fraudulently obtaining housing
subsidies in violation of 18 U.S.C. § 641. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
Starting with Sialeu’s challenge to the sufficiency of the evidence against her, our
review of sufficiency of the evidence claims is “exceedingly deferential.” United States v.
Hassan, 578 F.3d 108, 126 (2d Cir. 2008). We view the evidence in the light most
favorable to the government and affirm if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Aguilar, 585
F.3d 652, 656 (2d Cir. 2009) (internal quotation marks omitted). Here, the evidence
demonstrated that Sialeu acted knowingly in making false statements on her applications
for housing benefits. On appeal, she appears primarily to allege without elaboration that
the evidence against her was insufficient because the government’s witnesses testified
erroneously and that the evidence against her had been falsified. Sialeu has provided no
reason to believe that the evidence presented at trial was false; her counsel did not object to
the admission of documentary evidence against her; and it is the duty of the finder of fact,
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not a reviewing court, to determine the weight to be accorded to evidence and the
credibility of witnesses. See United States v. O’Connor, 650 F.3d 839, 855 (2d Cir. 2011).
Because Sialeu’s challenge to the sufficiency of the evidence is essentially an unsupported
attack on the credibility determinations made by the district court, this challenge fails.
Turning next to Sialeu’s waiver of her right to a trial by jury, we review the
effectiveness of such a waiver de novo. See United States v. Carmenate, 544 F.3d 105, 107
(2d Cir. 2008). A waiver of the right to trial by jury must be knowing, voluntary,
intelligent, made in writing, consented to by the Government, and approved by the trial
court. See id.; Fed. R. Crim. P. 23(a). The trial court is not constitutionally required to
conduct a colloquy, but it must evaluate the waiver under all the circumstances of the case.
See Carmenate, 544 F.3d at 107-08. Here, Sialeu’s counsel expressed concern that a jury
might view Sialeu’s psychiatric condition unfavorably, and stated that Sialeu was “very
comfortable with the idea of a bench trial.” The district court reviewed with Sialeu the
rights attendant to trial by jury, and Sialeu confirmed that she understood, or at least
thought she understood, each one. She affirmatively stated that she did not want a jury
trial, and, when asked by the court “who do you want to try your case,” she responded that
she “want[ed]” and “had faith in” the district court. Although Sialeu had taken her daily
dose of antidepressant and antipsychotic medications that day, which could have arguably
made it more difficult for her to understand her rights, given the full circumstances in the
record, we agree with the district court that Sialeu’s waiver was knowing, voluntary, and
intelligent.
Next we consider Sialeu’s claim that witnesses perjured themselves at her trial, in
order to be granted a new trial on the grounds that a witness committed perjury a defendant
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must show that the witness actually committed perjury, that the perjury was material, that
the government knew or should have known of the perjury during trial, and that the
perjured testimony remained undisclosed during trial. See United States v. Josephberg,
562 F.3d 478, 494 (2d Cir. 2009). Here, Sialeu asserts, in only conclusory terms, that the
witnesses committed perjury, and she has made no specific allegations of government
misconduct. As above, her primary objection appears to be that the district court
determined that the government’s witnesses were more credible than she was, which is not
cognizable upon appellate review. See O’Connor, 650 F.3d at 855. Her claim that witness
perjury requires a new trial fails.
Finally, we decline to address Sialeu’s claims of ineffective assistance of counsel;
we prefer such arguments be made in a motion brought under 28 U.S.C. § 2255. See
United States v. Wellington, 417 F.3d 284, 288 (2d Cir. 2005) (citing Massaro v. United
States, 538 U.S. 500, 504 (2003)).
We have considered all of Sialeu’s remaining arguments and find them to be
without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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