United States v. Cook

09-1650-cr
United States v. Cook
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RALPH K. WINTER,
9 JOHN M. WALKER, JR.,
10 Circuit Judges.
11
12
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14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 09-1650-cr
18
19 SCOTT MICHAEL COOK,
20 Defendant-Appellant.
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22
23 APPEARING FOR APPELLANT: CHRISTOPHER S. CIACCIO,
24 Rochester, New York.
25
26 APPEARING FOR APPELLEE: TIFFANY H. LEE, United States
27 Attorney’s Office for the
28 Western District of New York,
1
1 Rochester, New York, for
2 Kathleen M. Mehltretter, United
3 States Attorney for the Western
4 District of New York, Rochester,
5 New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Western District of New York (Siragusa, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Defendant-appellant Scott Cook was convicted of
15 producing and possessing child pornography. He appeals his
16 conviction and his sentence. We assume the parties’
17 familiarity with the underlying facts, the procedural
18 history, and the issues presented for review.
19
20 [1] Cook first argues that his trial counsel’s motion for
21 withdrawal should have been granted either because of an
22 ongoing fee dispute or, alternatively, because of a
23 perceived threat that Cook’s lawyer might have had to
24 testify at trial. Reviewing this claim de novo, United
25 States v. Feyrer, 333 F.3d 110, 115 (2d Cir. 2003), we find
26 no error. As to the fee dispute, withdrawal is generally
27 not warranted on that basis, see United States v. O’Neil,
28 118 F.3d 65, 71 (2d Cir. 1997); instead, if a lawyer’s
29 performance suffers on account of a fee dispute, the
30 appropriate remedy is to invoke ineffective assistance of
31 counsel, see Tueros v. Greiner, 343 F.3d 587, 594 (2d Cir.
32 2003). As to whether withdrawal was warranted by a risk
33 that counsel would be required to testify, there was no such
34 risk: The statement at issue was inadmissible hearsay, the
35 government’s offered stipulation would have mooted any need
36 for the testimony, and the victim (whose statement
37 ambiguously presented the issue) intended to testify in a
38 way that would have fully negated any need for the lawyer’s
39 testimony.
40
41 [2] Cook next argues that the district court erroneously
42 admitted into evidence certain photographs and testimony
43 showing that Cook engaged in sexual contact with Ashley,
44 sometimes after giving her alcohol. Our review is for abuse
45 of discretion, United States v. Wexler, 522 F.3d 194, 201-02
46 (2d Cir. 2008), and “reversal is warranted only if an error
47 affects a substantial right--that is, if the error had a
2
1 substantial and injurious effect or influence on the jury’s
2 verdict,” United States v. Rigas, 490 F.3d 208, 222 (2d Cir.
3 2007) (internal quotation marks and citations omitted).
4 Here, any error did not affect Cook’s substantial rights,
5 because a lot of other inculpatory evidence was introduced
6 at trial. Specifically, Cook twice admitted to taking
7 sexually explicit photographs of Ashley; Ashley testified
8 that Cook took naked pictures of her; and several sexually
9 explicit photographs of Ashley were seized from Cook’s
10 computer. Vacatur is therefore unwarranted, regardless of
11 whether the district court erred in admitting the challenged
12 evidence.
13
14 [3] Cook argues that his sentence was [i] procedurally
15 unreasonable because two sentencing enhancements were
16 improperly applied, and [ii] substantively unreasonable
17 because it was unduly harsh. We review the district court’s
18 factual findings for clear error and legal conclusions de
19 novo. United States v. Lewis, 386 F.3d 475, 479 (2d Cir.
20 2004).
21
22 Cook’s sentence was procedurally reasonable. The
23 imposition of the four-level enhancement provided for in
24 § 2G2.1(b)(2)(B) of the Sentencing Guidelines was supported
25 by evidence that Cook committed a sexual act on Ashley, and
26 Cook does not argue that the other prerequisite of the
27 Guideline was not satisfied. Similarly, the five-level
28 enhancement pursuant to § 2G2.2(b)(5) was supported by the
29 evidence adduced at trial showing that Cook touched Ashley
30 in sexually explicit ways on multiple occasions.
31
32 Cook’s argument as to the substantive reasonableness of
33 his sentence, which consists only of the assertion that the
34 sentence imposed was “unduly harsh and severe,” is
35 considered forfeited. Tolbert v. Queens Coll., 242 F.3d 58,
36 75 (2d Cir. 2001).
37
38 Finding no merit in Cook’s remaining arguments, we
39 hereby AFFIRM the judgment of the district court.
40
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
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