     13-1786
     United States v. Michel

                          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 19th day of March, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                              Circuit Judges,
 9                CHRISTINA REISS,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee,
16
17                    -v.-                                              No. 13-1786
18
19       HELENE MICHEL, AKA ELAINE ALLONCE, AKA
20       ELENE ALLONCE,
21
22                    Defendant-Appellant,
23


                *
               Chief Judge Christina Reiss, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1   ETIENNE ALLONCE,
 2
 3            Defendant.
 4   - - - - - - - - - - - - - - - - - - - -X
 5
 6   FOR DEFENDANT-APPELLANT:   DAVID A. BYTHEWOOD, Mineola, NY.
 7
 8   FOR APPELLEE:              CHARLES P. KELLY (David C.
 9                              James, on the brief) for Loretta
10                              E. Lynch, United States Attorney
11                              for the Eastern District of New
12                              York, New York, NY.
13
14        Appeal from a judgment of the United States District
15   Court for the Eastern District of New York (Bianco, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21        Helene Michel was convicted by a jury of health care
22   fraud, conspiracy to commit health care fraud, and wrongful
23   disclosure of health information, and was sentenced to,
24   inter alia, 144 months’ imprisonment. Michel claims that
25   the district judge denied her a fair trial and substantive
26   due process by (1) displaying bias during trial, (2)
27   precluding Michel from adequately presenting her defense,
28   and (3) relying on unproven facts at sentencing. We assume
29   the parties’ familiarity with the underlying facts, the
30   procedural history, and the issues presented for review.
31
32        “We review evidentiary rulings for abuse of
33   discretion.” United States v. Kelley, 551 F.3d 171, 174 (2d
34   Cir. 2009). “We will find an abuse of discretion only where
35   the trial judge ruled in an arbitrary or irrational
36   fashion.” Id. at 175 (internal quotation marks omitted).
37
38        “[T]he trial court may actively participate and give
39   its own impressions of the evidence or question witnesses,
40   as an aid to the jury, so long as it does not step across
41   the line and become an advocate for one side.” United
42   States v. Filani, 74 F.3d 378, 385 (2d Cir. 1996). “In its
43   participation at trial a district court should ask those
44   questions necessary for such purposes as clarifying
45   ambiguities, correcting misstatements, or obtaining
46   information needed to make rulings.” Id. at 386 (internal

                                  2
 1   quotation marks omitted). “In reviewing the trial
 2   transcript we must take care not to focus on isolated
 3   episodes, but to assess the trial court’s inquiries in light
 4   of the record as a whole.” Id.
 5
 6        If the defendant does not object to the district
 7   court’s questioning or evidentiary rulings, we review only
 8   for plain error. See id. at 387; United States v. Simels,
 9   654 F.3d 161, 168 (2d Cir. 2011). In conducting plain-error
10   analysis, we consider whether there was “(1) error, (2) that
11   is plain, and (3) that affects substantial rights.” Johnson
12   v. United States, 520 U.S. 461, 466-67 (1997) (internal
13   quotation marks and brackets omitted). If all three
14   conditions are met, we may then exercise “discretion to
15   notice a forfeited error, but only if (4) the error
16   seriously affects the fairness, integrity, or public
17   reputation of judicial proceedings.” Id. (internal
18   quotation marks and brackets omitted).
19
20        1.  Bias. Michel adduces numerous claims of the
21   district court’s bias against her. A review of the trial
22   and sentencing transcripts, however, establishes that the
23   district court’s impartiality was never compromised.
24
25        Many of Michel’s examples are trivial. The district
26   court’s request at a sidebar that counsel stop interrupting
27   each other could hardly be labeled improper admonishment.
28   Equally unobjectionable was the judge’s statement, outside
29   the presence of the jury and after a verdict of guilty had
30   been returned, that defense counsel’s belated objection to
31   the admission of certain brokerage records during the
32   forfeiture phase of the trial was “simply not fair” because
33   it led to unnecessary delay. App. 1055-56.
34
35        The district court’s comments during witness testimony
36   were also proper, and consistent with the court’s duty to
37   “clarify[] ambiguities, correct[] misstatements, [and]
38   obtain[] information needed to make rulings.” Filani, 74
39   F.3d at 386 (internal quotation marks omitted). The
40   district court did not “become an advocate” for the
41   government. Id. at 385. To the contrary, the district
42   court sustained defense objections when those objections
43   were meritorious. See, e.g., App. 104.
44
45        The district court also emphasized to the jury that the
46   court’s statements should not be taken to suggest an
47   outcome, and that the jury should draw no conclusions from

                                  3
 1   the court’s questioning. See App. 904-06; see also United
 2   States v. Mickens, 926 F.2d 1323, 1327-28 (2d Cir. 1991)
 3   (“Moreover, any possible prejudice to defendants-appellants
 4   was cured by the court’s cautionary instruction.”).
 5
 6        To the extent Michel challenges any of the underlying
 7   evidentiary rulings on the merits, none constitute an abuse
 8   of discretion and all are grounded in the Federal Rules of
 9   Evidence. For example, business records can be
10   authenticated by persons other than the custodian, see Fed.
11   R. Evid. 803(6)(D); and the court may conditionally admit
12   evidence subject to proof of the connecting facts, see id.
13   104(b). Michel does not point to a single evidentiary
14   ruling that was error, much less plain error suggesting
15   bias.
16
17        2.  Preclusion of Michel’s Defense. Michel argues
18   that the district court improperly precluded her trial
19   defense by ruling that, if Michel took the stand to discuss
20   her divorce from her co-defendant ex-husband, the government
21   would be able to cross-examine her regarding their marital
22   and business relationship and challenge her credibility.
23   The district court did not abuse discretion by allowing
24   cross-examination that goes to “matters affecting the
25   witness’s credibility.” Id. 611(b).
26
27        In any event, Michel’s challenge to this ruling is
28   unsustainable because she ultimately chose not to testify.
29   See Luce v. United States, 469 U.S. 38, 41-43 (1984) (“Any
30   possible harm flowing from a district court’s in limine
31   ruling permitting impeachment by a prior conviction is
32   wholly speculative . . . [w]hen the defendant does not
33   testify[.] . . . We hold that to raise and preserve for
34   review the claim of improper impeachment with a prior
35   conviction, a defendant must testify.”). We “cannot assume
36   that the adverse ruling motivated [the] defendant’s decision
37   not to testify.” Id. at 42.
38
39        3.  Sentencing. The district court found at
40   sentencing that Michel stole patient records from nursing
41   homes. Michel argues that no witness testified directly
42   that Michel stole anything. However, a court may use even
43   “acquitted conduct in determining a defendant’s” sentence,
44   as long as it finds the facts at sentencing by a
45   preponderance of the evidence. See United States v. Vaughn,
46   430 F.3d 518, 521, 525-26 (2d Cir. 2005). There was more
47   than enough circumstantial evidence presented at trial for

                                  4
 1   the district court to find by a preponderance of the
 2   evidence that Michel stole patient records.
 3
 4        The district court also stated at sentencing that it
 5   had observed Michel throughout trial and found her to be
 6   competent and alert. The remark runs counter to the
 7   defense’s suggestion that Michel’s “dissociative identity
 8   disorder” was a mitigating factor, but is consistent with
 9   the unanimous opinions of the medical experts, including one
10   specifically appointed by the district court to monitor
11   Michel during trial.
12
13        We have considered all of Michel’s remaining arguments
14   and conclude that they are without merit. The judgment of
15   the district court is hereby affirmed.
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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