United States v. Greenfield , 75 F. App'x 813 ( 2003 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment is AFFIRMED.

Michael Roth appeals from a judgment entered in the United States District Court for the Southern District of New York (Keenan, J.). Roth was convicted by a jury of conspiracy to commit mail fraud in connection with an insurance fraud scheme and sentenced to 30 months imprisonment. We affirm for the following reasons.

1. Roth argues that he suffered prejudice by reason of the district court’s failure to admit into evidence a document characterizing the testimony of a coconspirator. Evidentiary decisions are reviewed for abuse of discretion. See United States v. Tocco, 135 F.3d 116, 127 (2d Cir.1998). A witness may not be charged with a third party’s characterization of his pretrial statements unless the witness has subscribed to them. United States v. Rubin, 609 F.2d 51, 62 (2d Cir.1979). And such characterizations may not be used for impeachment purposes. United States v. Leonardi, 623 F.2d 746, 756-57 (2d Cir.1980). Here there was no evidence that Waldman had even reviewed Agent Trigg’s notes. We see no abuse of discretion in the exclusion.

Roth also contends he was prejudiced by the failure of Agent Trigg to testify as to Waldman’s prior statements. We see no merit to this because, as the district court observed, there was no inconsistency between Waldman’s testimony and his prior statements.

2. Roth has failed to show any prosecutorial misconduct. First, Roth fails to show that Agent O’Grady, co-defendant Waldman or Shaya Dov committed perjury, let alone that the prosecution suborned it. Nor has Roth succeeded in showing that the Government improperly introduced prejudicial evidence at the suppression hearing; assuming such conduct could justify relief on appeal, we conclude that the district court admitted the challenged evidence as relevant to the issue of whether Roth was tricked into speaking with Agent O’Grady.

In addition, defense counsel failed to object at trial to the Government’s argument in summation that codefendant Waldman lacked the incentive to falsely implicate Roth during a proffer session, and this claim is subject to plain error review. See United States v. Canniff, 521 F.2d 565, 572 (2d Cir.1975). Even if we were to assume that there was misconduct, it could not rise to the level of “egregious misconduct” required to demonstrate a due process violation. United States v. Shareef, 190 F.3d 71, 78 (2d Cir.1999).

3. We affirm the district court’s denial of Roth’s Fed.R.Crim.P. 33 motion substantially for the reasons stated by the district court. United States v. Roth, 01 CR. 401(JFK), 2003 WL 289615 (S.D.N.Y. Feb. 10, 2003).