17-3305
United States v. Grau


                        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 12th day of October, two thousand eighteen.

Present:        PETER W. HALL,
                GERARD E. LYNCH,
                          Circuit Judges,
                WILLIAM F. KUNTZ
                          District Judge.*


United States of America,

                Appellee,

v.                                                                              17-3305-cr


Armando J. Grau,

                Defendant-Appellant.


For Appellee:                        LOUIS A. PELLEGRINO, Assistant United States
                                     Attorney, (Anna M. Skotko, Assistant United States
                                     Attorney, of counsel), for Geoffrey S. Berman, United
                                     States Attorney for the Southern District of New
                                     York, New York, NY.

*
   William F. Kuntz, United States District Judge for the Eastern District of New York, sitting by
designation.  
For Appellant:                       COLLEEN P. CASSIDY, Federal Defenders of New
                                     York, Inc., Appeals Bureau, New York, NY.

         Appeal from a judgment entered September 29, 2017, in the United States

District Court for the Southern District of New York (Hellerstein, J.).

         UPON      DUE      CONSIDERATION,              IT    IS    HEREBY         ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

         Defendant Armando Grau appeals from a judgment of conviction entered in

the Southern District of New York (Hellerstein, J.) following a jury verdict finding

him guilty of one count of being a felon in possession of ammunition in violation of 18

U.S.C. § 922(g)(1). We assume the parties’ familiarity with the underlying facts, the

procedural history, the arguments presented on appeal, and the district court’s

rulings.

         Grau makes two arguments on appeal: first, that the district court erred when

it refused to give a proposed jury instruction that set out the defense’s theory of the

case, and second, that the court exceeded the bounds of its discretion when it excluded

the defense witness on relevance grounds.

    I.   The Jury Charge

         Grau asserts he was entitled to have the district court instruct the jury on the

defense theory of the case—that the government was required, but failed, to prove

beyond a reasonable doubt that Grau possessed a real bullet.1 United States v.


1
   The government argues that Grau waived, or at least forfeited, any claim of error in the jury
instructions. After the jury asked whether Grau needed to know that the bullet was real, the court
proposed a response, and Grau objected “to that charge.” App. at 306–07. After the court delivered
the response, defense counsel withdrew that objection. App. at 310. Grau thus waived this claim on

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Vaughn, 430 F.3d 518, 522 (2d Cir. 2005) (“A defendant is entitled to have his theory

of the case fairly submitted to the jury, as long as it has some foundation in the

evidence.”). We review de novo a district court’s jury instruction. Id.

        The court did not err in instructing the jury. When a defendant claims that

the district court failed to give his requested jury instruction, we will vacate a

conviction only if “(1) the requested instruction was legally correct; (2) it represents

a theory of the defense with basis in the record that would lead to acquittal; and (3)

the theory is not effectively presented elsewhere in the charge.” United States v.

Prawl, 168 F.3d 622, 626 (2d Cir. 1999) (quoting United States v. Vasquez, 82 F.3d

574, 577 (2d Cir. 1996)) (internal quotations omitted).

        Before explaining the statutory elements of the offense, the court instructed

the jury on Grau’s position:

               Defendant has pleaded not guilty to the indictment, and thus he
        denies the charge alleged against him. Specifically, he denies that he
        knowingly possessed a .38 caliber bullet designed to be used in a firearm.
        Therefore the government is obligated to prove each element of the
        offense that was charged before you could find the defendant guilty.

App. at 276. The court then instructed the jury on the elements the government must

prove, including knowing possession of ammunition:

              You must also find that the defendant knowingly possessed the
        ammunition, that is, that he knew that the ammunition was
        ammunition, as defined by the statute. Again, that definition is
        ammunition, cartridge cases, primers, bullets, or propellant powder
        designed for use in any firearm.


appeal in this single instance, but he did not waive or forfeit review of his objection to the original jury
instruction. Grau provided his proposed instruction in writing at the charging conference, see Fed. R.
Crim. P. 30(a), and “inform[ed] the court of the specific objection and the grounds for the objection
before the jury retire[d].” Id. at 30(d); see also United States v. Crowley, 318 F.3d 401, 412–14 (2d Cir.
2003) (explaining the requirements of a Rule 30 objection).  

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             In this case, the government has to prove beyond a reasonable
      doubt that the defendant knew that the bullet sticking out of the
      gun, . . . was a bullet designed for use in a firearm.

App. at 279.

      Here, the district court’s instruction was sufficient to present the defense

theory. The court conveyed to the jury, in the language of 18 U.S.C. § 922(g)(1), that

in order to convict, the jury needed to find beyond a reasonable doubt that Grau knew

that he possessed live ammunition designed for use in a firearm, and that Grau’s

position was that the government failed to prove that he did. While Grau points to

the court’s refusal to charge the jury with his language, he does not indicate how the

statutory language and expanded instruction quoted above fails to encapsulate the

defense theory that Grau did not know the bullet was real. “Although a defendant is

entitled to have the court charge the jury on any defense theory for which a

foundation existed in the record, he is not necessarily entitled to have that instruction

communicated to the jury in the language of his choice.” United States v. Coplan, 703

F.3d 46, 87 (2d Cir. 2012).

      Moreover, because we review a district court’s instruction “in light of the

charge in its entirety and the arguments made at trial.” Vaughn, 430 F.3d at 522–

24 (citing United States v. Velez, 652 F.2d 258, 261 n. 5 (2d Cir. 1981) (noting in

passing that failure to charge defense theory, though important, was not prejudicial,

“since defense counsel forcefully argued” the issue in summation)),         even if the

instruction itself fell short of presenting the defense theory, the defense summation

and Judge Hellerstein’s later answers to the jury’s questions “fairly put the issue” to



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the jury. Id. at 523. The summation focused at length on “real” bullets. App’x at

248–64. And Judge Hellerstein confirmed for the jury that his instruction regarding

ammunition—“designed for use in any firearm”—encompassed knowing the bullet

was real. App’x at 309–10.

II.   The Defense Witness

       Grau also argues that the district court erred when it excluded the sole witness

he intended to call—a paralegal who would testify that replica and fake bullets were

readily available online. We review a district court’s evidentiary rulings for abuse of

discretion. United States v. Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010). We grant

a district court broad deference on evidentiary rulings, “mindful of its superior

position to assess relevancy and to weigh the probative value of evidence against its

potential for unfair prejudice.” Id.

      The district court did not exceed the bounds of its discretion. “Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than it would

be without the evidence; and (b) the fact is of consequence in determining the action.”

Fed. R. Evid. 401. “[S]o long as a chain of inferences leads the trier of fact to conclude”

that the evidence “affects the mix of material information, the evidence cannot be

excluded” on relevance grounds. United States v. Quattrone, 441 F.3d 153, 188 (2d

Cir. 2006).

      The record does not support any chain of inferences connecting the paralegal’s

testimony to evidence of Grau’s knowledge—the consequential fact in dispute. Nor

could the paralegal establish this link through the proffered testimony. As a lay



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witness, the paralegal may only testify on matters of personal knowledge. Fed. R.

Evid. 701. Her testimony would not competently establish the relative availability of

replica bullets in the marketplace, but only that someone set to a specific research

task to find replica bullets could do so. Nor is her testimony probative of Grau’s

knowledge of the relative availability of replica bullets or whether he relied on that

knowledge when finding the gun in the park. The crucial links in the inferential

chain could only be supplied by an expert or a witness with personal knowledge. The

paralegal was neither. The district court did not exceed its broad discretion in

excluding the defense witness and the exhibits she would introduce.

         We have considered Grau’s remaining arguments and find them to be without

merit.

         Accordingly, the judgment of the district court is AFFIRMED.



                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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