United States v. Smith

14-3530
United States v. Smith
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 3rd day of
November, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v.
14-3530
Kevin Patrick Smith,
Defendant-Appellant.
_____________________________________
FOR DEFENDANT- APPELLANT: Arza Feldman, Feldman & Feldman,
Uniondale, NY; Kevin Patrick Smith,
pro se, White Deer, PA.
FOR APPELLEE: Hadassa Robyn Waxman, Brian A.
Jacobs, Assistant United States
Attorneys, for Preet Bharara, United
States Attorney Office for the
Southern District of New York, New
York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Buchwald, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED in part and VACATED in
part, and REMANDED for further proceedings consistent with this order.
Kevin Patrick Smith appeals from a judgment of conviction and sentence entered in the
United States District Court for the Southern District of New York (Buchwald, J.). A jury found
Smith guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), but
failed to reach a verdict on a second charge of attempted bank robbery. Smith was sentenced to
96 months’ imprisonment, followed by three years of supervised release with certain conditions.
Smith now appeals his conviction on several grounds, as well as the imposition of a special
condition of supervised release which restricts his access to credit.
Smith first argues that the District Court erred in denying his motion for a mistrial due to
prosecutorial misconduct. During its rebuttal summation, the Government argued that the timing
of Smith’s arrest was designed to protect “the safety of the citizens of New York – and New Paltz.”
App. 53. Smith contended before the District Court and again on appeal that a “safe streets”
argument, i.e., that Smith was so dangerous he must be arrested to protect public safety, was an
improper emotional appeal to jurors’ generalized fear of crime. We review the denial of a motion
for a mistrial for abuse of discretion. United States v. Deandrade, 600 F.3d 115, 118 (2d Cir.
2010). But a prosecutor’s improper remark warrants a new trial only if the defendant has suffered
“substantial prejudice.” United States v. Banki, 685 F.3d 99, 120 (2d Cir. 2011). In determining
whether alleged misconduct has caused “substantial prejudice,” we consider “[1] the seriousness
of the misconduct, [2] the measures adopted by the trial court to cure the misconduct, and [3] the
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certainty of conviction absent the improper statements.” Id. (quoting United States v. Parker, 903
F.2d 91, 98 (2d Cir. 1990)).
We find that the District Court was within its discretion to deny Smith’s motion for a
mistrial. First, the challenged remark did not rise to the level of serious misconduct, but was
instead a fair response to the defendant’s arguments. In his summation, defense counsel disputed
that Smith’s actions were sufficient to constitute an attempted bank robbery, which counsel
described as being when “someone goes into a bank with a gun,” or “is 20 feet away and gets cold
feet.” App. 55 (District Court quoting defense counsel’s summation). As the District Court
correctly noted, by describing an “attempt” in these terms, counsel opened the door to the
Government’s rebuttal argument that it was necessary to arrest Smith before he reached the bank
that was his intended target. See, e.g., United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998)
(“Under the invited or fair response doctrine, the defense summation may open the door to an
otherwise inadmissible prosecution rebuttal. In particular, where the defense summation makes
arguments and allegations against the government, the prosecutor may respond to them in
rebuttal.” (citation omitted)).
Even if the Government’s remark was improper, though, Smith was not substantially
prejudiced by it. The challenged remark comprised a single sentence of the Government’s
rebuttal summation, and referenced safety concerns in only a generalized manner. Moreover, the
remark did not directly concern the gun charge of which Smith was actually convicted. The
District Court instructed the jury that it needed to decide the case based solely on the evidence, not
including the arguments made in summation. And the evidence of Smith’s guilt on the gun
charge was overwhelming, as discussed below. Accordingly, the Government’s remark during
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summation does not warrant reversal of Smith’s conviction. See United States v. Shareef, 190
F.3d 71, 78 (2d Cir. 1999) (“[W]e have been reluctant to reverse where the transgression was
isolated . . . and the evidence against the defendant was strong.”).
Representing himself pro se, Smith also challenges the sufficiency of the evidence to
support his conviction and alleges that there was error in the grand jury proceedings. We review
challenges to the sufficiency of evidence de novo, “view[ing] the evidence in the light most
favorable to the government, drawing all inferences in the government’s favor and deferring to the
jury’s assessments of the witnesses’ credibility.” United States v. Sabhnani, 599 F.3d 215, 241
(2d Cir. 2010) (quoting United States v. Parkes, 497 F.3d 220, 225 (2d Cir. 2007)). The jury’s
verdict will be sustained if “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Romano, 794 F.3d 317, 335 (2d Cir. 2015)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We find no merit in Smith’s pro se arguments. First, there was ample evidence to support
his conviction on the gun charge. The FBI found five guns and assorted ammunition at a storage
unit rented in Smith’s name. Before his arrest, Smith told the FBI’s informant that he kept one of
his guns, the .44 Magnum he intended to use during the robbery, at an Extra Space Storage facility.
Smith also gave the informant a business card with the facility’s name. The conversation was
recorded and later replayed to the jury. At the time he was arrested, Smith was carrying another
Extra Storage Space business card, as well as a key that matched the lock at the Extra Storage
Space unit where the guns were found. Surveillance video at the facility showed Smith filling out
rental paperwork, paying for the unit, and placing items inside it. The unit itself contained a box
with a shipping label containing Smith’s name and address, in addition to the guns and
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ammunition. This evidence was more than sufficient to support Smith’s conviction on the
weapons charge.
We also find Smith’s claim regarding inaccuracies in the grand jury testimony to be
without merit. Smith claims that the FBI agent who investigated his case lied during his
testimony to the grand jury in claiming that the informant was not paid. But the agent’s testimony
was not inaccurate; during his testimony before the grand jury, the agent noted that the informant
was “not being paid for the information.” Supp. Pro Se Br. 22. At trial, the agent clarified that
the informant was reimbursed for expenses and received “subsistence” payments, but again
asserted that the informant was not compensated directly for providing information. There was
thus no error in the testimony that warrants overturning Smith’s conviction.
Finally, with the assistance of counsel, Smith challenges a special condition of supervised
release restricting his access to credit “unless [he] is in compliance with [his] installment payment
schedule.” App. 87. Conditions of supervised release are generally reviewed for abuse of
discretion. United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010). “When the defendant does
not object to the conditions, however, we review only for plain error,” unless there was no
opportunity to raise a contemporaneous objection, in which case we may “relax” the standard and
employ “a less rigorous plain error review.” Id.
Because no financial penalties were imposed on Smith, there was no installment payment
schedule associated with his sentence. The Government consents to a limited remand on this
issue. We agree, and remand for reconsideration of this special condition in accordance with the
procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). If the District
Court decides to retain the condition, it should explain its reasoning. Should the District Court
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retain the condition, Smith may restore this appeal by notice to the Clerk of this Court within 30
days of the District Court’s order. If the District Court vacates the condition, that will terminate
the appeal.
We have considered all of Smith’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM in part, VACATE in part, and REMAND the case for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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