         12-3866-cr
         United States v. White

                                  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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of August, two thousand thirteen.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                        -v.-                                              No. 12-3866-cr
18
19       JOHN RAYMOND ANTHONY WHITE,
20
21
22                                     Defendant-Appellant.
23
24
25
26       FOR APPELLEE:                 ALVIN BRAGG, JR., Assistant United States
27                                     Attorney (Brent S. Wible, Assistant
28                                     United States Attorney, on the brief),
29                                     for Preet Bharara, United States Attorney
30                                     for the Southern District of New York.
31
32       FOR APPELLANT:                LAWRENCE RUGGIERO, New York, NY.
33
1         Appeal from the United States District Court for the
2    Southern District of New York (Stein, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment is AFFIRMED.

6        Defendant-appellant John White appeals from a September

7    20, 2012 judgment of conviction entered by the United States

8    District Court for the Southern District of New York (Stein,

9    J.) following a jury trial.     We assume the parties’

10   familiarity with the facts and procedural history of the

11   case.

12       White was convicted on five counts associated with

13   making false statements in connection with applications for

14   government contracts set aside for veterans and one count of

15   witness tampering.   He argues primarily that the district

16   court’s admission of certain evidence was improper under

17   Federal Rules of Evidence 403 and 404(b).     "We review

18   evidentiary rulings for abuse of discretion."     United States

19   v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009).     "To find such

20   abuse, we must conclude that the trial judge's evidentiary

21   rulings were arbitrary and irrational."     Id. (internal

22   quotation marks omitted).     Evidence of a crime, wrong, or

23   other act is not admissible to prove a person’s character in

24   order to show that on a particular occasion the person acted

                                     2
1    in accordance with the character.     Fed. R. Evid. 404(b)(1).

2    Such evidence may, however, be admitted for other purposes,

3    such as proving intent or knowledge.     Fed. R. Evid.

4    404(b)(2); see also Mercado, 573 F.3d at 141.

5        After careful review, we conclude that the disputed

6    evidence was properly admitted.     Although White had

7    stipulated that he was not a veteran, he did not stipulate

8    as to his knowledge or intent in making the statements

9    associated with the contracts or contract applications that

10   formed the basis for the indictment.     The district court did

11   not abuse its discretion in determining that statements by

12   White in other contexts regarding his supposed veteran

13   status were relevant to the issues of knowledge and intent,

14   particularly where the evidence was admitted with limiting

15   instructions to the jury.

16       White also asserts that various statements made by the

17   Government in summation were improper.     Particularly where,

18   as here, no contemporaneous objection was made to statements

19   in summation, we remand for a new trial only where such

20   statements “amount to flagrant abuse” which “seriously

21   affects the fairness, integrity, or public reputation of

22   judicial proceedings.”   United States v. Carr, 424 F.3d 213,


                                   3
1    227 (2d Cir. 2005) (internal quotation marks omitted).     We

2    see no such abuse here.     Indeed, White does not identify any

3    specific remark by the Government that ostensibly meets this

4    standard.   Instead, his arguments regarding summation amount

5    to a generalized attack on the Government’s case, and on the

6    fact that the summation included references to the evidence

7    he contends was improperly admitted in the first place.     We

8    find no misconduct in the prosecution’s summation.

9        We have considered all of White’s arguments and find

10   them to be without merit.     For the reasons stated above, the

11   judgment of the district court is AFFIRMED.

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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