United States v. Ferreira

14-4174(L)
United States v. Ferreira
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of June, two thousand seventeen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES,
13 Appellee,
14
15 -v.- 14-4174(L)
16 14-4317(CON)
17 MELANIE FERREIRA,
18 Defendant-Appellant.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: JONATHAN I. EDELSTEIN, Edelstein &
22 Grossman; New York, NY.
23
24 FOR APPELLEE: NICHOLAS S. FOLLY (Brian R. Blais,
25 on the brief), for Joon H. Kim,
26 Acting United States Attorney for
1
1 the Southern District of New York;
2 New York, NY.
3
4 Appeal from a judgment of the United States District Court
5 for the Southern District of New York (Seibel, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
8 DECREED that the judgment of the district court be AFFIRMED.
9
10 Melanie Ferreira appeals from a judgment of conviction
11 entered in the United States District Court for the Southern
12 District of New York (Seibel, J.) pursuant to jury verdict. We
13 assume the parties’ familiarity with the underlying facts, the
14 procedural history, and the issues presented for review.
15 Ferreira was charged with (1) wire fraud in violation of
16 18 U.S.C. §§ 1343 and 2, (2) filing false claims in violation
17 of 18 U.S.C. §§ 287 and 2, (3) bank fraud in violation of 18
18 U.S.C. §§ 1344 and 2, and (4) obstructing and impeding the due
19 administration of the internal revenue laws in violation of 26
20 U.S.C. § 7212(a). On appeal, and with the benefit of counsel,
21 Ferreira argues (1) that it was error to allow her to represent
22 herself (or to allow her to continue representing herself), (2)
23 that several of the district court’s evidentiary rulings
24 deprived her of a fair trial, and (3) that the district court
25 should have granted her request for a reasonable adjournment
26 to spend more time preparing for trial.
27 At her initial presentment in April 2013, Ferreira elected
28 to appear pro se, and appeared along with standby counsel from
29 the Federal Defenders of New York. Magistrate Judge Lisa M.
30 Smith explained in detail the risks of proceeding pro se and
31 “strongly recommend[ed]” that Ferreira accept the assistance
32 of counsel, App. 29, but found that she was competent and made
33 a knowing and voluntary waiver of her right to counsel.
34 At a conference in July 2013, Judge Cathy Seibel told
35 Ferreira that it was a “monumentally bad idea” to waive the right
36 to counsel, App. 129, explained at length the difficulties of
37 criminal trial (and, if convicted, of sentencing), and warned
38 Ferreira that she would not be able to argue later that she should
2
1 not have been permitted to appear pro se. Ferreira indicated
2 that she understood.
3 In December 2013, Ferreira appeared at a conference on
4 pretrial motions and objected to having standby counsel. Judge
5 Seibel told her that she had the right to represent herself and
6 to make no use of standby counsel, but that she could not refuse
7 standby counsel altogether. Standby counsel told Judge Seibel
8 that she had asked the Government to calculate the applicable
9 Sentencing Guidelines range so that Ferreira would “understand
10 . . . how much jail time she actually faces,” and the Government
11 did inform her. App. 218. Judge Seibel further explained to
12 Ferreira that the actual sentence could be anything from “zero
13 up to the statutory maximum.” App. 219.
14 At a final pretrial conference in January 2014, Judge Seibel
15 again revisited Ferreira’s decision to proceed without counsel,
16 and again warned Ferreira that she would not be able to appeal
17 on the basis of ineffective assistance. Ferreira again declined
18 representation.
19 At trial, the Government put on evidence showing (inter
20 alia) that Ferreira’s 2008 tax return fraudulently claimed a
21 refund of $440,924; that the IRS wired those funds to Ferreira’s
22 bank account and Ferreira rapidly depleted them, often in amounts
23 just under $10,000; that Ferreira filed a similar fraudulent
24 tax return the following year (at which point the IRS discovered
25 the fraud); that Ferreira caused an associate to forge a
26 cashier’s check for $316,966.05 to satisfy a mortgage on
27 Ferreira’s home; and that Ferriera drew checks to satisfy her
28 mortgage ($305,000) and to satisfy tax debts ($759,033.05) on
29 an account that she had closed years earlier. Ferreira
30 presented no defense at trial. The jury returned a guilty
31 verdict on all four counts. Ferreira was sentenced principally
32 to concurrent terms of 51 months’ incarceration on the first
33 three counts and a concurrent term of 36 months’ incarceration
34 on the fourth.
35 1. A defendant has the right to defend herself without
36 the assistance of counsel if the decision to waive the right
37 to counsel is made knowingly with full awareness of the
38 consequences. Faretta v. California, 422 U.S. 806, 835–36
3
1 (1975). Whether that standard is satisfied “depends upon the
2 particular facts and circumstances of the case and
3 characteristics of the defendant.” United States v. Fore, 169
4 F.3d 104, 108 (2d Cir. 1999). We review “a district court’s
5 conclusions regarding the constitutionality of a defendant’s
6 waiver” de novo and “its supporting factual findings” for clear
7 error. United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993).
8 We will affirm the district court’s conclusion “if any reasonable
9 view of the evidence supports it.” Id. at 11 (quotation marks
10 omitted).
11 The record is clear that Ferreira was repeatedly warned of
12 the consequences and dangers of representing herself, and that
13 Ferreira nevertheless repeatedly declined the assistance of
14 counsel. Both judges concluded that she was competent to make
15 that decision and did so knowingly.
16 A district court need not “resort to any particular
17 talismanic procedures” to establish that a defendant understands
18 the consequences of waiver, United States v. Culbertson, 670
19 F.3d 183, 193 (2d Cir. 2012) (internal quotation marks omitted),
20 and Ferreira makes no persuasive argument that she failed to
21 understand what she was told. The district court did not err
22 by permitting Ferreira to exercise her right to
23 self-representation. Nor is there merit to Ferreira’s
24 contention that during the course of trial she effectively asked
25 to have a lawyer.
26 2. Ferreira argues that three evidentiary rulings
27 deprived her of a fair trial: (1) the admission pursuant to
28 Federal Rule of Evidence 404(b) of testimony from Ferreira’s
29 accountant about her earlier reluctance to report cash income
30 to the IRS; (2) the admission of documents in Ferreira’s
31 possession relating to anti-government, anti-tax, and anti-IRS
32 views; and (3) the admission of evidence (to which Ferreira made
33 no contemporaneous objection) that two associates to whom she
34 transferred fraudulently obtained funds made cash withdrawals
35 in amounts just under $10,000. In light of the district court’s
36 superior position to weigh probative value of evidence against
37 the risk of unfair prejudice, we review its evidentiary rulings
38 for abuse of discretion. See, e.g., United States v.
39 Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010); United States v.
4
1 Guang, 511 F.3d 110, 121 (2d Cir. 2007). We review evidentiary
2 decisions to which the defendant made no contemporaneous
3 objection for plain error. United States v. Pierce, 785 F.3d
4 832, 840 (2d Cir. 2015).
5 “Other acts” evidence is inadmissible for the purpose of
6 showing a defendant’s criminal propensity, but such evidence
7 is admissible under Rule 404(b) for other purposes so long as
8 it is not substantially outweighed by the danger of unfair
9 prejudice. See United States v. Paulino, 445 F.3d 211, 221 (2d
10 Cir. 2006). The district court reasoned that testimony from
11 Ferreira’s former accountant was probative to show that Ferreira
12 knew of her obligations, understood that her conduct was wrong,
13 and acting knowingly and intentionally, not by mistake or
14 accident. The district court found that this probative value
15 was not outweighed by unfair prejudice, in part because the
16 failure to report cash income, though illegal, is relatively
17 common and therefore not highly prejudicial. The district court
18 instructed the jury on the proper use of this evidence twice
19 during the testimony and in greater detail in the jury charge.
20 Ferreira makes no persuasive argument that she was unfairly
21 prejudiced by this testimony or that its admission was an abuse
22 of discretion.
23 Nor did the district court abuse its discretion by admitting
24 evidence of Ferreira’s anti-government, anti-tax, and anti-IRS
25 views. Intent was a critical issue at trial, and Ferreira’s
26 views on these subjects undercut the argument that her actions
27 resulted from a good-faith misunderstanding of her obligations.
28 The evidence was not unduly prejudicial.
29 Ferreira did not object to the admission of evidence that
30 two of her associates to whom she transferred fraudulently
31 obtained funds withdrew those funds in amounts just small enough
32 to avoid triggering bank reporting obligations; so we review
33 the decision to allow introduction of that evidence only for
34 plain error. This evidence was probative of awareness that the
35 overall scheme was known to be illicit by its participants. It
36 was not unduly prejudicial: Ferreira, who did the same thing,
37 would not be tainted by the conduct of her associates. The
38 admission of this evidence was not plainly erroneous.
5
1 3. Five days before the scheduled start of trial, Ferreira
2 sought a 90-day adjournment to review recently produced evidence
3 and because of her mother’s terminal illness. The district
4 court observed that most of the recently produced evidence was
5 cumulative, granted a six-day adjournment nevertheless, and
6 invited Ferreira to advise the court if the material yielded
7 anything significant. Ferreira’s motion for adjournment on the
8 first day of trial was denied.
9 “Trial judges necessarily require a great deal of latitude
10 in scheduling trials,” and have “broad discretion . . . on matters
11 of continuances.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983).
12 “The denial of a defendant’s request for a continuance will not
13 be reversed absent a showing both of arbitrariness and of
14 prejudice to the defendant.” United States v. Arena, 180 F.3d
15 380, 397 (2d Cir. 1999) (abrogated on other grounds by Scheidler
16 v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403 n.8 (2003)).
17 Ferreira has shown neither arbitrariness nor prejudice, and we
18 find no abuse of discretion in the district court’s denial of
19 (a longer) adjournment.
20 Accordingly, and finding no merit in appellant’s other
21 arguments, we hereby AFFIRM the judgment of the district court.
22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
6