         10-930-cr
         United States v. Boyd

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17 th day of November, two thousand and ten.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                10-930-cr
18
19       ANTHONY BOYD,
20
21                                     Defendant-Appellant.
22
23
24
 1   FOR APPELLANT:          ANTHONY BOYD, pro se, Bruceton Mills,
 2                           WV.
 3
 4   FOR APPELLEE:      JESSICA ORTIZ, Assistant United States
 5                      Attorney (Janis M. Echenberg & Daniel A.
 6                      Braun, Assistant United States Attorneys,
 7                      on the brief), for Preet Bharara, United
 8                      States Attorney for the Southern District
 9                      of New York, New York, NY.
10
11       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

12   AND DECREED that the district court judgment is AFFIRMED.

13

14       Defendant-Appellant Anthony Boyd, pro se, appeals from

15   the March 4, 2010 judgment of the United States District

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

17   entered against him after a jury convicted him of two counts

18   of bank robbery, 12 counts of armed bank robbery, and

19   escape.   On appeal, Boyd challenges the denial of his Rule

20   33 motion, the district court’s finding that the

21   presentation of forensic evidence did not violate the

22   Confrontation Clause, the admission of an in-court

23   identification, and the district court’s rejection of a

24   requested jury instruction.   We assume the parties’

25   familiarity with the underlying facts and the procedural

26   history of the case.

27       Rule 33 provides that “the court may vacate any judgment


                                   2
 1   and grant a new trial if the interest of justice so

 2   requires.”   This Court reviews the denial of a Rule 33

 3   motion for abuse of discretion.     See United States v.

 4   McCourty, 562 F.3d 458, 475 (2d Cir. 2009).     “The ultimate

 5   test on a Rule 33 motion is whether letting a guilty verdict

 6   stand would be a manifest injustice.”     United States v.

 7   Ferguson, 246 F.3d 129, 134 (2d Cir. 2001).     Motions for new

 8   trials “should be granted only with great caution and in the

 9   most extraordinary circumstances.”     United States v.

10   Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).

11       Here, Boyd’s contention that the Government fabricated

12   the DNA evidence against him is unsupported.     He has failed

13   to provide any basis for his belief that, in either 1998 or

14   2008, his DNA profile had been entered into a searchable

15   database, and this contention is contradicted by the

16   evidence presented at trial.   Boyd has also failed to

17   identify any evidence supporting his claim that the

18   Government’s DNA expert altered the test results in order to

19   inculpate Boyd.   Instead, the expert’s testimony and report

20   indicate that the change made in the final report did not

21   affect the resulting DNA profile.     Accordingly, the district

22   court did not abuse its discretion by denying these claims.


                                    3
 1   See United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981)

 2   (affirming denial of Rule 33 motion where defendant’s claim

 3   of Government misconduct was based on “unsupported

 4   speculation”).

 5       As to Boyd’s Confrontation Clause argument, after having

 6   reviewed the appellant’s contentions on appeal and the

 7   record of proceedings below, we affirm for substantially the

 8   same reasons stated by the district court in its thorough

 9   opinion denying the Rule 33 motion.   In any event, even if

10   Boyd’s right to confrontation had been violated, given the

11   strength of the evidence against him – including his

12   confession, witness testimony, surveillance video and

13   photographs, and physical evidence – any error was harmless.

14       We review the district court’s admission of

15   identification evidence for clear error.     See United States

16   v. Finley, 245 F.3d 199, 203 (2d Cir. 2001).     In this case,

17   we identify no error in the district court’s admission of a

18   witness’s in-court identification of Boyd.     The witness

19   testified that she observed Boyd shortly before he covered

20   his face and committed the robbery, he was the only customer

21   in the bank at the time, her pre-identification description

22   was consistent with her identification of Boyd, and she was


                                   4
 1   certain about the identification.    In any event, even if the

 2   admission of the identification was improper, any error was

 3   harmless, given the strength of the other evidence against

 4   Boyd.

 5       Finally, the district court’s rejection of Boyd’s

 6   proposed jury instruction was not improper.    This Court

 7   reviews the propriety of a jury instruction de novo.    See

 8   United States v. Abelis, 146 F.3d 73, 82 (2d Cir. 1998).

 9   The “appellant has the burden of showing that the requested

10   charge accurately represented the law in every respect and

11   that, viewing as a whole the charge actually given, he was

12   prejudiced.”    United States v. Dove, 916 F.2d 41, 45 (2d

13   Cir. 1990) (internal quotation marks and citation omitted).

14   “A jury instruction is erroneous if it misleads the jury as

15   to the correct legal standard or does not adequately inform

16   the jury on the law.”    United States v. Walsh, 194 F.3d 37,

17   52 (2d Cir. 1999) (internal quotation marks and citation

18   omitted).

19       Here, the requested instruction was not a correct

20   statement of the law and was not supported by evidence in

21   the record.    See United States v. Russo, 74 F.3d 1383, 1393

22   (2d Cir. 1996) (finding that defendant was entitled to a


                                    5
 1   jury instruction on defense theories for which there was

 2   “any foundation in the evidence”) (internal quotation marks

 3   and citation omitted); see also Dove, 916 F.2d at 45.        Thus,

 4   because the requested instruction did not “accurately

 5   represent[] the law in every respect,” the court’s rejection

 6   of the instruction was not erroneous.

 7            We have considered all of the appellant’s arguments and

 8   find them to be without merit.        Accordingly, the judgment of

 9   the district court is AFFIRMED.
10
11
12                                   FOR THE COURT:
13                                   Catherine O’Hagan Wolfe, Clerk
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