         11-2975-cr
         United States v. Nappy

                                 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 6th day of May, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                J. CLIFFORD WALLACE,*
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                            Appellee,
16
17                      v.                                                          11-2975-cr
18
19       JOHN F. NAPPY,
20
21                                            Defendant-Appellant.
22
23
24       FOR APPELLANT:                JESSE M. SIEGEL, New York, NY.
25
26       FOR APPELLEE:                 ANTONIA M. APPS, Assistant United States
27                                     Attorney (Iris Lan, Assistant United
28                                     States Attorney, on the brief), for Preet
29                                     Bharara, United States Attorney for the
30                                     Southern District of New York, New York,
31                                     NY.

                *
                The Honorable J. Clifford Wallace, of the United States Court of
         Appeals for the Ninth Circuit, sitting by designation.
 1        Appeal from the United States District Court for the
 2   Southern District of New York (McKenna, J.).
 3
 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

 5   AND DECREED that the judgment of the United States District

 6   Court for the Southern District of New York is AFFIRMED.

 7       Defendant-Appellant John F. Nappy (“Nappy”) appeals

 8   from his judgment following jury convictions for obstructing

 9   a grand jury proceeding in violation of 18 U.S.C. §§ 1503

10   and 2 and mail fraud under 18 U.S.C. §§ 1341 and 2.     Nappy

11   contends the evidence was insufficient to convict him, the

12   district court erred by refusing to grant a new trial based

13   on newly-discovered evidence, and the Government's rebuttal

14   summations were improper.   We assume the parties’

15   familiarity with the underlying facts, the procedural

16   history, and the issues presented for review.

17       This Court will “uphold a conviction so long as any

18   rational trier of fact could have found the essential

19   elements of the crime beyond a reasonable doubt.” United

20   States v. Hassan, 578 F.3d 108, 122 (2d Cir. 2008)(internal

21   quotation marks omitted).   Nappy first claims that the

22   Government’s proof is insufficient to establish that he

23   supplied a fraudulent Jason Lawson & Company stockholder


                                   2
 1   list to the grand jury with the requisite "corrupt" intent

 2   because the government did not prove that he believed the

 3   list to be false or that he provided it for the purpose of

 4   misleading the grand jury.    At trial, however, the

 5   Government adduced evidence that he had never mentioned

 6   stock ownership in Jason Lawson to some of the stockholders

 7   on the list, that Nappy's tax returns for the same time

 8   period only listed five of the ten purported stockholders,

 9   and that Nappy provided a similar but modified list during a

10   related civil case.   Further, the Government offered letters

11   purporting to be from Nappy’s clients and giving him full

12   authority over their investment. The clients testified that

13   the letters were forgeries.    Nappy submitted these letters

14   shortly before providing the stockholder list and

15   affirmatively vouched for their accuracy.

16     Considering the evidence as a whole—the inherently

17   self-serving nature of the documents, the victims' testimony

18   denying any relationship with Jason Lawson & Company, and

19   the contemporaneous submission of the forged letters—a

20   rational juror could conclude that Nappy submitted a false

21   stockholder list in an attempt to mislead the grand jury.

22

                                    3
 1       Second, Nappy claims the evidence contradicts any

 2   inference that he caused an order to be placed for Ms.

 3   Cascione or that he knew that there were insufficient funds

 4   available to place that order.    At trial, however, the

 5   Government offered evidence that Nappy was the de facto head

 6   of Channel Securities, was primarily the one who handled

 7   trading, especially of options, and, as the mastermind of

 8   the scheme to misappropriate clients' money, was in a

 9   position to know if there was money left in the account.

10   Nappy also admitted that, during the same time frame, he

11   personally placed a $10,000 stock order for Ms. Cascione—a

12   transaction that she requested during the same conversation

13   in which she requested the $40,000 bond order.    The jury

14   could have reasonably inferred that if Nappy knew about one

15   of the requested transactions, he would have known about,

16   and approved, both.   Indeed, Nappy's statement that the

17   transaction "would be okay if there was profits in the

18   account," could be interpreted, as the government suggests,

19   as an admission that Nappy approved the transfer and was

20   aware that the account was insufficiently funded.

21       Nappy also claims that the district court erred in

22   denying his Rule 33 motion for a new trial based on a

                                   4
 1   “newly-discovered” stock certificate in the name of Ms.

 2   Dressner, one of Nappy’s clients.   To obtain a new trial

 3   based on newly-discovered evidence, Nappy must "show[] that

 4   the evidence is in fact 'new', i.e., it could not have been

 5   discovered, exercising due diligence, before or during

 6   trial, and that the evidence is so material and

 7   non-cumulative that its admission would probably lead to an

 8   acquittal."   United States v. Siddiqi, 959 F.2d 1167, 1173

 9   (2d Cir. 1992)(internal quotation marks omitted).

10   Defendant's burden of proof at the district court level is

11   high: "The ultimate test is whether letting a guilty verdict

12   stand would be a manifest injustice. . . .   There must be a

13   real concern that an innocent person may have been

14   convicted." United States v. Persico, 645 F.3d 85, 109 (2d

15   Cir. 2011) (internal quotation marks omitted).    His burden

16   on appeal is even higher: "[D]enial of such a motion will

17   not be reversed except for abuse of discretion." Id.

18       In dismissing the motion, the district court assumed,

19   arguendo, that the stock certificate was "new."     We agree

20   with the Government that the “newness” and authenticity of

21   this certificate are highly suspect. Nappy took nearly seven

22   years to find it even though he would have likely known of

                                   5
 1   its existence.     Further, of all the clients, Ms. Dressner

 2   was the only one who testified to having knowledge about

 3   Jason Lawson & Company stock; thus, she would have

 4   presumably remembered receiving such a certificate.

 5   Regardless, the district court correctly found that the

 6   stockholder certificate was not "so material and

 7   non-cumulative that its admission would probably lead to an

 8   acquittal." Rather, "[t]he stock certificate, like the

 9   Stockholder List, was simply a document created and kept by

10   Nappy. . . .     [T]he certificate does not show, any more than

11   the Stockholder List, that Nappy actually believed that Ms.

12   Dressner was a stockholder."     United States v. Nappy, No.

13   94-cr-656(LMM), 1999 WL 476281, at *2 (S.D.N.Y. July 8,

14   1999)(internal quotation marks omitted).     Indeed, the lack

15   of certificates for Nappy’s other client-victims would

16   likely raise more questions than the existence of this one

17   would answer.

18       Finally, Nappy alleges that in both trials the

19   Government's attorney made improper comments in rebuttal

20   summation that unfairly maligned defense counsel and

21   "vouched" for the credibility of its witnesses.     This Court

22   has held that, to warrant reversal, the prosecutorial

                                     6
 1   misconduct must cause “substantial prejudice by so infecting

 2   the trial with unfairness as to make the resulting

 3   conviction a denial of due process." United States v. Elias,

 4   285 F.3d 183, 190 (2d Cir. 2002)(internal quotation marks

 5   omitted).   To meet this standard, a prosecutor’s summation

 6   remarks must constitute “egregious misconduct.” Id.   We hold

 7   that the prosecutor’s remarks here fell short of such a

 8   standard and were generally responsive to arguments made by

 9   defense counsel.   See United States v. Carr, 424 F.3d 213,

10   227 (2d Cir. 2005); United States v. Perez, 144 F.3d 204,

11   210 (2d Cir. 1998).

12        For the foregoing reasons, the judgment of the district
13   court is hereby AFFIRMED.
14
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17

18




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