10-2146-cr (L)
United States v. Stinson

                                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 Asummary 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 5th day of April, two thousand twelve.

PRESENT:
            PIERRE N. LEVAL,
            ROBERT D. SACK,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________

UNITED STATES OF AMERICA,
                                         Appellee,

                           v.                                             Nos. 10-2146-cr (Lead)
                                                                               10-2265 (Con)
                                                                               10-3415 (Con)
MICHAEL STINSON, DAVID HARVIN, AND EUGENE STINSON,
AKA “NASTY,”
                                Defendants-Appellants.

______________________________________________


FOR DEFENDANTS-APPELLANTS:                       BRUCE ROBERT BRYAN, Bryan Law Firm, Syracuse,
                                                 New York; JEREMY GUTMAN, Jeremy Gutman,
                                                 Attorney at Law, New York, New York; Eileen
                                                 Frances Shapiro, Law Office of Eileen Shapiro,
                                                 Brooklyn, New York.
FOR APPELLEE:                                 ROBERT SPECTOR Assistant United States Attorney
                                              (Felice Duffy, on the brief,) for David Fein, United
                                              States Attorney for the District of Connecticut, New
                                              Haven, Connecticut.

       Appeal from the judgment of the United States District Court for the District of

Connecticut (Arterton, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

       This appeal arises out of the jury trial and conviction of Michael (“Michael”) Stinson and

his son, Eugene (“Eugene”) Stinson and the guilty plea of David Harvin.1 On March 9, 2010, a

jury found Eugene guilty of conspiracy to steal firearms from a federally licensed firearm dealer,

American Precision Manufacturing (“APM”), in violation of 18 U.S.C. §§ 922(u)(1), 924(i)(1) and

371; and theft of firearms from a federally licensed firearm dealer, in violation of 18 U.S.C. §§ 2,

922(u)(1) and 924(i)(1). The jury also found Michael guilty of the same and the additional

offense of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). On May 28, 2010, the district court sentenced Michael to 200 months’ imprisonment.

On August 16, 2010, the district court sentenced Eugene to 120 months’ imprisonment.

       Eugene appeals his conviction on the basis that the district court committed a number of

errors including mishandling, to Eugene’s detriment, Michael’s testimony suggestive of a

vicarious entrapment defense. Michael appeals his conviction on the grounds that his

non-guidelines sentence of 200 months’ incarceration is substantively unreasonable and that he

was entrapped by the government. Both defendants-appellants have filed, in addition to their

1
  We have granted Attorney Eileen Shapiro’s motion to be relieved as counsel for David Harvin,
pursuant to Anders v. California, 386 U.S. 738 (1967), and the government’s motion for summary
affirmance; and denied Harvin’s motion for the appointment of new counsel in an order filed
simultaneously with this one.

                                                 2
counseled briefs, pro se briefs raising a number of claims. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal. We

elaborate only where necessary to explain our decision to affirm the judgments of conviction.

Eugene’s Appeal

       In his counseled brief, Eugene argues that the jury was erroneously permitted to consider

Michael’s testimony suggesting that Michael was vicariously entrapped by Eugene. In the first

instance, Michael testified that Eugene had approached him and told Michael that Ameed

Stevenson, the government’s cooperating witness, had access to firearms through Stevenson’s job

at APM and wanted to get Eugene involved in an opportunity to steal some of those firearms.

Michael explained that he had been hesitant to get involved with Stevenson. Michael’s counsel

then inquired about Eugene’s response to that hesitation and before Michael answered, Eugene’s

counsel objected. The district court sustained the objection. Eugene now asserts that district

court should have either struck the testimony or given the jury a curative or limiting instruction.

Eugene’s counsel neither asked for the testimony to be stricken nor requested a curative or limiting

instruction. We therefore review for plain error. United States v. Jakobetz, 955 F.2d 786,

801-802 (2d Cir. 1992); see also United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (“[A]n

appellate court may, in its discretion, correct an error not raised at trial only where the appellant

demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to

reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary

case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’”). Because the

district court sustained the objection before Michael could answer the question, the district court

                                                   3
did not err, much less plainly err, in not striking the testimony or otherwise instructing the jury

with specific regard to the testimony.

       In the second instance, Michael testified that, on the night of the theft, Eugene told Michael

that there were guns in the APM warehouse. Eugene’s counsel initially objected to the testimony

and asked for it to be stricken from the record. At sidebar Eugene’s counsel argued that

permitting Michael to testify with regard to statements Eugene made concerning the guns would

“undermine my entire predisposition case,” and he proposed that Michael’s counsel be permitted

to lead Michael through his testimony and suggested “[m]aybe if the question posed to Michael is

more directed in a yes or no manner, did you do something as a result of, you know, being told

something by your son?” When later asked by the district court if he wanted the testimony

stricken or a limiting instruction given to the jury, Eugene’s counsel stated that he wished not to

draw attention to the issue and expressly decided against asking the district court strike the answer

or give a limiting instruction. Eugene now argues Michael’s testimony was so prejudicial to him

that it deprived Eugene of a fair trial as it implied an admission of guilt on Eugene’s part, and, as

clarified during oral argument, Eugene asserts that the district court should have stricken the

testimony when his counsel initially objected.

       We find no error in the district court’s delay in ruling on the objection in order to make a

conscientious assessment of whether the statements were relevant and admissible, in the course of

Michael’s defense, as a co-conspirator’s statement in furtherance of a conspiracy. United States

v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998) (“Under Rule 403, relevant evidence may be excluded

when its probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

                                                  4
needless presentation of cumulative evidence. A district court is obviously in the best position to

do the balancing mandated by Rule 403 [, and] [w]e will second-guess a district court only if there

is a clear showing that the court abused its discretion or acted arbitrarily or irrationally. To avoid

acting arbitrarily, the district court must make a ‘conscientious assessment’ of whether unfair

prejudice substantially outweighs probative value.”) (internal quotations and citations are

omitted). Moreover, on Eugene’s objection to this testimony, there were essentially three

remedies available to him―mistrial, striking of the testimony (with or without instructions to the

jury), or a limiting instruction. Eugene expressly declined the court’s offer to strike the evidence

or give a limiting instruction, and he did not request a mistrial. Accordingly, he “did not afford

the court an available opportunity to do something about the problem.” United States v. Bautista,

252 F.3d 141, 147 (2d Cir. 2001). This amounted to a waiver of his objection. Cf. United States

v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (“The law is well established that if, ‘as a tactical

matter,’ a party raises no objection to a purported error, such inaction ‘constitutes a true “waiver”

which will negate even plain error review.’” (quoting United States v. Kon Yu-Leung, 51 F.3d

1116, 1122 (2d Cir. 1995)).

Eugene’s Pro Se Appeal

       In his pro se brief, Eugene raises a number of claims including allegations that the

government and its agents violated his due process rights; the government misrepresented

evidence during its closing argument; the government committed Brady and Jencks Act violations;

the trial court abused its discretion; Stevenson perjured himself at trial; and that Eugene was

entrapped as a matter of law.



                                                  5
       Eugene’s due process challenge is linked generally to his allegation that the government

and its agents, namely the ATF and APM, violated his right to due process of law in the following

ways: (1) the government allowed APM owners to tip off its employees about the investigation

into the original firearms theft and to participate in the subsequent sting operation; (2) law

enforcement agents showed Stevenson a photo lineup with Eugene’s picture in it; (3) the law

enforcement agents relied on information provided by Stevenson, who Eugene claims was not

reliable; (4) on the night of the charged theft, ATF Special Agent Scott Riordan forced Stevenson,

against his will, to open a door at APM for Michael and Harvin; and (5) the affidavit in support of

Eugene’s arrest warrant contained the false statement that Eugene had sold a firearm to another

confidential informant on October 7, 2009 and that Special Agent Riordan testified in grand jury to

the same false statement. Also, Eugene asserts that the district court erred by admitting evidence

from Michael’s cell phone because the ATF agent searched that telephone without a warrant.

Eugene did not raise any of these claims below, and thus we review for plain error.

       Eugene has not identified an error, much less a plain one, rising to the level of a deprivation

of his due process rights. He did not move to suppress any evidence obtained as a result of the

ATF’s investigation and sting operation. See United States v. Yousef, 327 F.3d 56, 144 (2d Cir.

2003) (holding that issues not raised in pre-trial suppression motion are waived). He advances

only conclusory statements and identifies no evidence to support his claims that Agent Riordan

and Stevenson were lying. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993). Any

allegation of misconduct or interference by the ATF in the transaction between Stevenson and

Eugene was embodied in Eugene’s entrapment defense — an argument he made to the jury on

which the jury was instructed, and which the jury ultimately rejected. Additionally, with regard

                                                  6
to Michael’s cell phone, leaving aside whether he has standing to challenge it, the Government did

obtain a search warrant for the phone, which Michael acknowledged at trial.

       Eugene argues that the district court abused its discretion in applying a two-level

enhancement pursuant to U.S.S.G. § 3B1.1 for his role in the offenses of conviction, and a

six-level enhancement pursuant to U.S.S.G. § 2K2.1 because the offense involved twenty-nine

firearms. At sentencing the district court determined that the evidence introduced at trial

established that Eugene organized the theft and recruited Michael to help him and that, on the night

of the theft, Michael and Harvin snuck into APM in the middle of the night, packed up twenty-nine

guns in four duffle bags and carried sixteen of them out of APM with every intent to return

immediately and steal the remaining thirteen firearms. Additionally, the district court determined

that all twenty-nine firearms taken from APM and placed in duffle bags brought by Michael and

Harvin were attributable to Eugene based on the “video . . . of the theft and based on Michael

Stinson’s testimony that he intended to go back” and because Eugene was a co-conspirator. The

district court did not abuse its discretion in applying either enhancement.

       We have conducted an independent review of the record and have considered all of

Eugene’s remaining claims on appeal and find each to be without merit. His judgment of

conviction is AFFIRMED.

Michael’s Appeal

       Michael initially raised three issues in his counseled brief―whether the district court erred

in finding certain prior convictions sufficient for finding that Michael is an armed career criminal,

whether Michael was entrapped, and whether the district court’s below guidelines sentence of 200



                                                 7
months’ imprisonment is unreasonable. In his reply brief, he conceded that his prior convictions

form a sufficient basis for the district court’s armed career criminal determination.

       Michael continues to assert that he was entrapped as a matter of law. The entrapment

defense has two elements: “(1) government inducement of the crime, and (2) lack of predisposition

on the defendant’s part.” United States v. Bala, 236 F.3d 87, 94 (2d Cir. 2000) (internal quotation

marks omitted).

       Michael argues that Stevenson, at the government’s direction, lured Michael to APM under

the guise that Stevenson would provide Michael with scrap metal. Stevenson then conducted a

bait and switch with the scrap metal and guns and directed Michael to “take the guns” – a

command that Michael instantly obeyed. This was, in Michael’s view, inducement. See

Jacobson v. United States, 503 U.S. 540, 548 (1992) (“Government agents may not originate a

criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and

then induce commission of the crime so that the Government may prosecute.”). Even if we

agreed with Michael that Stevenson’s single direction to “take the guns” was sufficient evidence of

government inducement, the government otherwise proved that Michael was predisposed beyond

a reasonable doubt to engage in the crime. Predisposition may be shown by evidence of: “(1) an

existing course of criminal conduct similar to the crime for which the defendant is charged, (2) an

already formed design on the part of the accused to commit the crime for which he is charged, or

(3) a willingness to commit the crime for which he is charged as evidenced by the accused's ready

response to the inducement.” United States v. Brunshtein, 344 F.3d 91, 101–02 (2d Cir. 2003).

Michael’s ready response to the inducement demonstrated that he was ready and willing without

persuasion to commit the crime. Michael’s own testimony was that it only took him a “split

                                                 8
second” after Stevenson said, “[t]ake the guns” to decide that he was no longer interested in scrap

metal and would receive a greater financial benefit by selling the guns. On this record, we do not

agree that Michael was entrapped as a matter of law.

       Michael next argues that a non-guidelines sentence of 200 months’ incarceration was

substantively unreasonable because (1) he suffers from severe medical conditions and therefore is

entitled to a more lenient sentence; and (2) being 53, he presents a lower risk of recidivism than

younger offenders and accordingly is entitled to a lesser sentence. “We review sentences for

abuse of discretion, a standard that ‘incorporates de novo review of questions of law (including

interpretation of the [Sentencing] Guidelines) and clear-error review of questions of fact.’”

United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (quoting United States v. Legros, 529

F.3d 470, 474 (2d Cir. 2008)). In so doing, we must “take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing

in mind the institutional advantage of district courts.” United States v. Cavera, 550 F.3d 180, 190

(2d Cir. 2008). A sentence is substantively unreasonable only in the “rare case” where the

sentence would “damage the administration of justice because the sentence imposed was

shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v.

Rigas, 583 F.3d 108, 123 (2d Cir. 2009), cert. denied, 131 S. Ct. 140 (2010).

       At sentencing, the district court reviewed Michael’s medical history including diagnoses,

medication, and Michael’s prison medical records. In light of Michael’s medical history, the

district court gave Michael a non-guidelines sentence. The district court’s decision not to afford

Michael’s medical conditions additional weight did not result in substantive error. See Cavera,

550 F.3d at 191 (observing that “we do not consider what weight we would ourselves have given a

                                                 9
particular [sentencing] factor” but instead “whether the factor, as explained by the district court,

can bear the weight assigned it under the totality of circumstances in the case.”) Additionally, the

district court considered and rejected Michael’s claim that his age reflected a lower risk of

recidivism. Her decision was based on Michael’s extensive criminal history and that the reason

for the apparent break in his criminal conduct was that he was incarcerated for a long period.

More importantly, the district court noted that once released, Michael reoffended within the year

by committing the crimes charged in this case. Based on this record, it cannot be said that the

district court’s non-Guidelines sentence of 200 months’ imprisonment which is ten months below

the bottom of the applicable Guidelines range is substantively unreasonable.

Michael’s Pro Se Claims

       In his pro se brief, Michael, makes eleven arguments that can be categorized as follows:

allegations of government misconduct during its summation; due process and jurisdictional

claims; and discovery and evidentiary claims. Additionally, in his pro se reply brief, Michael

argues, in an effort to rebut the government’s responses to his claims on appeal, that his trial

counsel was ineffective in a number of ways.

       Michael asserts that the government’s rebuttal argument violated the so-called “Golden

Rule” when the prosecutor asked the jury, in the context of discussing whether the defendants were

induced to engage in the theft of firearms, “What would persuade you to do this?” Defense

counsel objected at the time and the prosecutor immediately withdrew the comment and rephrased

the question as follows: “What would persuade an innocent person to commit the crime.” The

government concedes that the initial question was inappropriate, but claims that the rephrased

question was proper and merely paraphrased the district court’s jury instruction on entrapment and

                                                 10
drew no objection. We conclude that the prosecutor erred but that this error, alone, does not

justify reversal. United States v. Young, 470 U.S. 1, 11 (1985); accord United States v. Modica,

663 F.2d 1173, 1184 (2d Cir. 1981) (“Reversal is an ill-suited remedy for prosecutorial misconduct

. . . .”); United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (To warrant reversal, prosecutorial

misconduct must “‘cause[] the defendant substantial prejudice by so infecting the trial with

unfairness as to make the resulting conviction a denial of due process.’” (quoting United States v.

Shareef, 190 F.3d 71, 78 (2d Cir. 1999); Shareef, 190 F.3d at 78 (“Remarks of the prosecutor in

summation do not amount to a denial of due process unless they constitute ‘egregious

misconduct.’”).

       We have fully considered all of Michael’s remaining claims on appeal and find each to be

without merit. To the extent that Michael, in an effort to rebut the government’s arguments that

Michael waived certain claims or failed to take certain actions during the district court

proceedings, now claims that his trial counsel was ineffective, we decline, without expressing any

views on the merits of such a claim, to reach Michael’s ineffective assistance claim raised for the

first time on direct appeal. United States v. Leone, 215 F.3d 253, 256 (2d Cir. 2000).

       For the foregoing reasons, the judgment of the conviction is AFFIRMED.

                                                      FOR THE COURT:

                                                      Catherine O=Hagan Wolfe, Clerk




                                                 11
