16-3864
United States v. Graham

                               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.

        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
9th day of April, two thousand eighteen.

Present:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
                                Circuit Judges.
                         1
            DENISE COTE,
                        District Judge.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                                  16-3864

CLYDEDORO GRAHAM,

                        Defendant-Appellant.2
_____________________________________________________

Appearing for Appellant:         Lawrence Gerzog, New York, N.Y.

Appearing for Appellee:          Douglas S. Zolkind, Assistant United States Attorney (Kathryn
                                 Martin, Daniel B. Tehrani, Assistant United States Attorneys, on
                                 the brief), for Geoffrey S. Berman, United States Attorney for the
                                 Southern District of New York, New York, N.Y.


1
  Judge Denise Cote, United States District Court for the Southern District of New York, sitting
by designation.
2
  The Clerk of Court is respectfully ordered to amend the caption as above.
Appeal from the United States District Court for the Southern District of New York (Roman, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Appellant Clydedoro Graham appeals from the October 27, 2016 judgment of the United
States District Court for the Southern District of New York (Roman, J.). A jury found Graham
guilty of three counts under 18 U.S.C. § 1594(c) (Conspiracy to Commit Sex Trafficking), 18
U.S.C. § 1594(a) (Attempted Sex Trafficking), and 18 U.S.C. § 1201(a) (Kidnapping). We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

         Graham raises two issues on appeal. First, he argues that the district court erred in
denying his motion to suppress statements made to the police. “On appeal from a challenged
suppression order, we review a district court’s findings of fact for clear error, and its resolution
of questions of law and mixed questions of law and fact de novo.” United States v. Bohannon,
824 F.3d 242, 247-48 (2d Cir. 2016) (emphasis omitted), cert denied, 137 S. Ct. 628 (2017).
Additionally, “[b]ecause [Graham] appeals from a judgment of conviction entered after a jury
trial, the . . . facts are drawn from the trial evidence and described in the light most favorable to
the government.” United States v. Wilson, 709 F.3d 84, 85 (2d Cir. 2013).

         The court did not err when it determined that Graham’s Fifth Amendment rights were not
violated during his custodial interrogation. The parties agree that Graham was in custody at the
time of his interrogation by Detective Cartagena, but Graham and Detective Cartagena offered
conflicting accounts of what took place in the interrogation room. Specifically, Officer Cartagena
testified that he read Graham his Miranda rights immediately after introducing himself, that he
read the rights from a Miranda card that was then signed by both Graham and himself with a
date and time, and that he immediately ceased questioning Graham at the moment Graham first
asked for an attorney. Graham recounted a very different version of the interview. In Graham’s
version of events, he asked for a lawyer immediately upon entering the interrogation room,
Detective Cartagena never read him his Miranda rights, and it was not his signature on the
Miranda card. The court was thus forced to make a credibility determination regarding the
witnesses and determined that Graham’s testimony was “not credible,” based on both his
assessment of Graham’s testimony and the comparison of handwriting samples regarding the
Miranda card. Supp. App’x at 133. The court also explicitly credited the testimony of Detective
Cartagena. Id.

        “When a district court’s factual finding is based upon a credibility determination, we are
mindful that particularly strong deference should be granted to the finding in light of the
factfinder’s unique ability to assess the witness.” Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir.
2003) (internal quotation marks omitted) (quoting United States v. Mendez, 315 F.3d 132, 135
(2d Cir. 2002)). In Ortega, we found clear error in the district court’s credibility finding, when it
“focus[ed] exclusively on the credibility of [the witness’] recantation and, in so doing, [did] not
give proper weight to the other evidence of [the witness’] perjury” at trial. Id. at 108. In
discrediting Graham’s testimony, the district court made a holistic determination based upon
conflicting witness statements and the physical evidence of the signatures. There is no basis to



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find clear error in the court’s credibility determination. Accordingly, we affirm the district
court’s decision on the second set of statements made during Graham’s custodial interrogation.

          Any other errors made by the district court regarding the suppression motion would have
been harmless and should therefore be “disregarded” on review. See Fed. R. Evid. 103(a); Fed.
R. Crim. P. 52(a). “Under harmless error review, we ask whether we can conclude with fair
assurance that the errors did not substantially influence the jury.” United States v.
Oluwanisola, 605 F.3d 124, 133 (2d Cir. 2010) (quoting United States v. Ivezaj, 568 F.3d 88, 98
(2d Cir. 2009)) (internal quotation marks omitted). Given the overwhelming evidence presented
at trial, which we must review in the light most favorable to the government because this appeal
follows a jury conviction, Wilson, 709 F.3d at 85, we determine any legal error would have been
harmless. The government presented testimony from the victim herself, as well as co-conspirator
Alisa Papp. The government presented numerous text messages between Graham and other co-
conspirators discussing the trickery and measures taken to force the victim to remain in the
apartment. For example, the doorknob had been removed so she could not escape the apartment.
Further, the statements made by Graham at his apartment and at the police station were all
exculpatory, rather than potentially inculpatory. Accordingly, any errors would have been
harmless because Graham’s statements could not have “substantially influence[d] the jury.”
Oluwanisola, 605 F.3d at 133.

         Graham’s second argument on appeal is that the district court erred in not permitting him
to elicit hearsay testimony from a defense witness during redirect. We review evidentiary
decisions made by the district court for an abuse of discretion and will reverse only if there was
“manifest error” in the judgment of the court. United States v. Miller, 626 F.3d 682, 688 (2d Cir.
2010) (quoting Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010)). Absent an
exception to the general rule, hearsay is not permitted in trial testimony. See Fed. R. Evid. 802
(“Hearsay is not admissible unless any of the following provides otherwise: a federal statute;
these rules; or other rules prescribed by the Supreme Court.”). Graham appears to suggest that
the government “opened the door” to the admission of hearsay through its cross-examination, but
the door only “opens” for the purpose of admitting inadmissible evidence in order to cure the
admission of other inadmissible evidence. See United States v. Rosa, 11 F.3d 315, 335 (2d Cir.
1993) (“To be admissible under this doctrine, the evidence that allegedly ‘opened the door’ must
in fact have been inadmissible. Properly admitted evidence does not open the door to
inadmissible evidence.”). Because Graham does not challenge the admissibility of the
government’s cross-examination, the attempted hearsay testimony could not have fit this
exception to the general rule. It was therefore proper for the court to exclude it during trial.

        We have considered the remainder of Graham’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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