     12-3577
     United States v. Leitch (Richardson)

                          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 26th day of February, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                ROSEMARY S. POOLER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               12-3577
16
17       AMY JENNIFER LEITCH,
18                Defendant,
19
20       KWAME RICHARDSON,
21                Defendant-Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        PETER F. LANGROCK, Langrock
25                                             Sperry & Wool, LLP, Middlebury,
26                                             Vermont.
27


                                                  1
 1   FOR APPELLEE:              WILLIAM D. SARRATT (Amy Busa, on
 2                              the brief), for Loretta E.
 3                              Lynch, United States Attorney
 4                              for the Eastern District of New
 5                              York, Brooklyn, New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Eastern District of New York (Bianco, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Kwame Richardson appeals from the judgment of the
15   United States District Court for the Eastern District of New
16   York (Bianco, J.), convicting him of importation of cocaine
17   in violation of 21 U.S.C. §§ 952(a)(1), 960(a)(1), and
18   960(b)(2)(B)(ii); conspiracy to distribute cocaine in
19   violation of 21 U.S.C. §§ 841(b)(1)(B)(ii)(II) and 846; and
20   attempted possession of cocaine with intent to distribute in
21   violation of 21 U.S.C. §§ 841(b)(1)(B)(ii)(II) and 846. On
22   appeal, Richardson argues: a) the prosecutor’s remarks in
23   the Government’s rebuttal summation violated his due process
24   rights; and b) the district court erred in denying his Rule
25   29 motion. We assume the parties’ familiarity with the
26   underlying facts, the procedural history, and the issues
27   presented for review.
28
29       1.   Prosecutorial Misconduct
30
31        Richardson claims that the prosecutor’s rebuttal
32   remarks improperly vouched for the credibility of the
33   Government’s witnesses. The momentary utterance of the word
34   “guarantee” was not objected to, no doubt because the
35   prosecutor himself corrected his wording in almost the same
36   moment; if objection had been made, the court would have
37   been able to instruct the jury there and then, but focusing
38   the jury on the word, even to clarify, would likely have
39   done more harm than good. Nevertheless, because Richardson
40   did not object to these remarks at trial, we review the
41   prosecutorial misconduct claim for plain error. Fed. R.
42   Crim. P. 52(b); United States v. Young, 470 U.S. 1, 14-15
43   (1985). Thus, the error must be “particularly egregious,”
44   that “seriously affect[s] the fairness, integrity or public

                                  2
 1   reputation of judicial proceedings.” Young, 470 U.S. at 15
 2   (internal quotation marks). In the context of prosecutorial
 3   misconduct, Richardson must show “‘(1) that the prosecutor’s
 4   statements were improper and (2) that the remarks, taken in
 5   the context of the entire trial, resulted in substantial
 6   prejudice.’” United States v. Perez, 144 F.3d 204, 210 (2d
 7   Cir. 1998) (quoting United States v. Bautista, 23 F.3d 726,
 8   732 (2d Cir. 1994)).
 9
10        The prosecutor’s statements, while ill-advised, do not
11   amount to plain error, in part because they were made in
12   response to attacks by defense counsel. See Young, 470 U.S.
13   at 17-18; Perez, 144 F.3d at 210-11. The defense counsel
14   implied that the Department of Homeland Security agents lied
15   during their testimony to pin knowledge and intent on
16   Richardson. In response, the prosecutor guaranteed that
17   “there was absolutely nothing sinister going on.” In part
18   because this was in response to an attack on the credibility
19   of the Government’s witnesses, the prosecutor’s statements
20   were unlikely to lead the jury astray or result in
21   substantial prejudice. Young, 470 U.S. at 12; United States
22   v. Rivera, 971 F.2d 876, 883-84 (2d Cir. 1992).
23
24
25       2.   Insufficiency of the Evidence
26
27        Richardson challenges the denial of his Rule 29 motion
28   arguing insufficiency of evidence. We review this claim de
29   novo. United States v. Amico, 486 F.3d 764, 780 (2d Cir.
30   2007). We must affirm if “‘any rational trier of fact could
31   have found the essential elements of the crime beyond a
32   reasonable doubt.’” United States v. Autuori, 212 F.3d 105,
33   114 (2d Cir. 2000) (quoting Jackson v. Virginia, 443 U.S.
34   307, 319 (1979) (emphasis in original)). “‘In reviewing
35   such a challenge, we must view the evidence, whether direct
36   or circumstantial, in the light most favorable to the
37   government, crediting every inference that could have been
38   drawn in its favor.’” Perez, 144 F.3d at 208 (quoting
39   United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.
40   1992)).
41
42        Richardson’s first argument is that the jury reached
43   inconsistent verdicts because he could not be convicted of
44   importing cocaine (and conspiracy to distribute cocaine) if

                                  3
 1   he was acquitted of conspiracy to import cocaine. However,
 2   criminal defendants cannot challenge inconsistent verdicts.
 3   United States v. Powell, 469 U.S. 57, 65-66 (1984).
 4
 5        Richardson also contends that the Government has not
 6   proven the elements of the three charges. Viewing the
 7   evidence in a light most favorable to the Government, a
 8   rational juror could have found Richardson guilty beyond a
 9   reasonable doubt on the three counts on which he was
10   convicted.
11
12        For the foregoing reasons, and finding no merit in
13   Richardson’s other arguments, we hereby AFFIRM the judgment
14   of the district court.
15
16                              FOR THE COURT:
17                              CATHERINE O’HAGAN WOLFE, CLERK
18




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