     14-4174(L)
     United States v. Ferreira

                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   28th day of June, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   UNITED STATES,
13            Appellee,
14
15                -v.-                                           14-4174(L)
16                                                               14-4317(CON)
17   MELANIE FERREIRA,
18            Defendant-Appellant.
19   - - - - - - - - - - - - - - - - - - - -X
20
21   FOR APPELLANT:                          JONATHAN I. EDELSTEIN, Edelstein &
22                                           Grossman; New York, NY.
23
24   FOR APPELLEE:                           NICHOLAS S. FOLLY (Brian R. Blais,
25                                           on the brief), for Joon H. Kim,
26                                           Acting United States Attorney for



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 1                                 the Southern District of New York;
 2                                 New York, NY.
 3
 4        Appeal from a judgment of the United States District Court
 5   for the Southern District of New York (Seibel, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 8   DECREED that the judgment of the district court be AFFIRMED.
 9
10        Melanie Ferreira appeals from a judgment of conviction
11   entered in the United States District Court for the Southern
12   District of New York (Seibel, J.) pursuant to jury verdict. We
13   assume the parties’ familiarity with the underlying facts, the
14   procedural history, and the issues presented for review.

15        Ferreira was charged with (1) wire fraud in violation of
16   18 U.S.C. §§ 1343 and 2, (2) filing false claims in violation
17   of 18 U.S.C. §§ 287 and 2, (3) bank fraud in violation of 18
18   U.S.C. §§ 1344 and 2, and (4) obstructing and impeding the due
19   administration of the internal revenue laws in violation of 26
20   U.S.C. § 7212(a). On appeal, and with the benefit of counsel,
21   Ferreira argues (1) that it was error to allow her to represent
22   herself (or to allow her to continue representing herself), (2)
23   that several of the district court’s evidentiary rulings
24   deprived her of a fair trial, and (3) that the district court
25   should have granted her request for a reasonable adjournment
26   to spend more time preparing for trial.

27        At her initial presentment in April 2013, Ferreira elected
28   to appear pro se, and appeared along with standby counsel from
29   the Federal Defenders of New York. Magistrate Judge Lisa M.
30   Smith explained in detail the risks of proceeding pro se and
31   “strongly recommend[ed]” that Ferreira accept the assistance
32   of counsel, App. 29, but found that she was competent and made
33   a knowing and voluntary waiver of her right to counsel.

34        At a conference in July 2013, Judge Cathy Seibel told
35   Ferreira that it was a “monumentally bad idea” to waive the right
36   to counsel, App. 129, explained at length the difficulties of
37   criminal trial (and, if convicted, of sentencing), and warned
38   Ferreira that she would not be able to argue later that she should


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 1   not have been permitted to appear pro se. Ferreira indicated
 2   that she understood.

 3        In December 2013, Ferreira appeared at a conference on
 4   pretrial motions and objected to having standby counsel. Judge
 5   Seibel told her that she had the right to represent herself and
 6   to make no use of standby counsel, but that she could not refuse
 7   standby counsel altogether. Standby counsel told Judge Seibel
 8   that she had asked the Government to calculate the applicable
 9   Sentencing Guidelines range so that Ferreira would “understand
10   . . . how much jail time she actually faces,” and the Government
11   did inform her. App. 218. Judge Seibel further explained to
12   Ferreira that the actual sentence could be anything from “zero
13   up to the statutory maximum.” App. 219.

14        At a final pretrial conference in January 2014, Judge Seibel
15   again revisited Ferreira’s decision to proceed without counsel,
16   and again warned Ferreira that she would not be able to appeal
17   on the basis of ineffective assistance. Ferreira again declined
18   representation.

19        At trial, the Government put on evidence showing (inter
20   alia) that Ferreira’s 2008 tax return fraudulently claimed a
21   refund of $440,924; that the IRS wired those funds to Ferreira’s
22   bank account and Ferreira rapidly depleted them, often in amounts
23   just under $10,000; that Ferreira filed a similar fraudulent
24   tax return the following year (at which point the IRS discovered
25   the fraud); that Ferreira caused an associate to forge a
26   cashier’s check for $316,966.05 to satisfy a mortgage on
27   Ferreira’s home; and that Ferriera drew checks to satisfy her
28   mortgage ($305,000) and to satisfy tax debts ($759,033.05) on
29   an account that she had closed years earlier. Ferreira
30   presented no defense at trial. The jury returned a guilty
31   verdict on all four counts. Ferreira was sentenced principally
32   to concurrent terms of 51 months’ incarceration on the first
33   three counts and a concurrent term of 36 months’ incarceration
34   on the fourth.

35        1.  A defendant has the right to defend herself without
36   the assistance of counsel if the decision to waive the right
37   to counsel is made knowingly with full awareness of the
38   consequences. Faretta v. California, 422 U.S. 806, 835–36


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 1   (1975). Whether that standard is satisfied “depends upon the
 2   particular facts and circumstances of the case and
 3   characteristics of the defendant.” United States v. Fore, 169
 4   F.3d 104, 108 (2d Cir. 1999). We review “a district court’s
 5   conclusions regarding the constitutionality of a defendant’s
 6   waiver” de novo and “its supporting factual findings” for clear
 7   error. United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993).
 8   We will affirm the district court’s conclusion “if any reasonable
 9   view of the evidence supports it.” Id. at 11 (quotation marks
10   omitted).

11        The record is clear that Ferreira was repeatedly warned of
12   the consequences and dangers of representing herself, and that
13   Ferreira nevertheless repeatedly declined the assistance of
14   counsel. Both judges concluded that she was competent to make
15   that decision and did so knowingly.

16        A district court need not “resort to any particular
17   talismanic procedures” to establish that a defendant understands
18   the consequences of waiver, United States v. Culbertson, 670
19   F.3d 183, 193 (2d Cir. 2012) (internal quotation marks omitted),
20   and Ferreira makes no persuasive argument that she failed to
21   understand what she was told. The district court did not err
22   by permitting Ferreira to exercise her right to
23   self-representation. Nor is there merit to Ferreira’s
24   contention that during the course of trial she effectively asked
25   to have a lawyer.

26        2.   Ferreira argues that three evidentiary rulings
27   deprived her of a fair trial: (1) the admission pursuant to
28   Federal Rule of Evidence 404(b) of testimony from Ferreira’s
29   accountant about her earlier reluctance to report cash income
30   to the IRS; (2) the admission of documents in Ferreira’s
31   possession relating to anti-government, anti-tax, and anti-IRS
32   views; and (3) the admission of evidence (to which Ferreira made
33   no contemporaneous objection) that two associates to whom she
34   transferred fraudulently obtained funds made cash withdrawals
35   in amounts just under $10,000. In light of the district court’s
36   superior position to weigh probative value of evidence against
37   the risk of unfair prejudice, we review its evidentiary rulings
38   for abuse of discretion. See, e.g., United States v.
39   Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010); United States v.

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 1   Guang, 511 F.3d 110, 121 (2d Cir. 2007). We review evidentiary
 2   decisions to which the defendant made no contemporaneous
 3   objection for plain error. United States v. Pierce, 785 F.3d
 4   832, 840 (2d Cir. 2015).

 5        “Other acts” evidence is inadmissible for the purpose of
 6   showing a defendant’s criminal propensity, but such evidence
 7   is admissible under Rule 404(b) for other purposes so long as
 8   it is not substantially outweighed by the danger of unfair
 9   prejudice. See United States v. Paulino, 445 F.3d 211, 221 (2d
10   Cir. 2006). The district court reasoned that testimony from
11   Ferreira’s former accountant was probative to show that Ferreira
12   knew of her obligations, understood that her conduct was wrong,
13   and acting knowingly and intentionally, not by mistake or
14   accident. The district court found that this probative value
15   was not outweighed by unfair prejudice, in part because the
16   failure to report cash income, though illegal, is relatively
17   common and therefore not highly prejudicial. The district court
18   instructed the jury on the proper use of this evidence twice
19   during the testimony and in greater detail in the jury charge.
20   Ferreira makes no persuasive argument that she was unfairly
21   prejudiced by this testimony or that its admission was an abuse
22   of discretion.

23        Nor did the district court abuse its discretion by admitting
24   evidence of Ferreira’s anti-government, anti-tax, and anti-IRS
25   views. Intent was a critical issue at trial, and Ferreira’s
26   views on these subjects undercut the argument that her actions
27   resulted from a good-faith misunderstanding of her obligations.
28   The evidence was not unduly prejudicial.

29        Ferreira did not object to the admission of evidence that
30   two of her associates to whom she transferred fraudulently
31   obtained funds withdrew those funds in amounts just small enough
32   to avoid triggering bank reporting obligations; so we review
33   the decision to allow introduction of that evidence only for
34   plain error. This evidence was probative of awareness that the
35   overall scheme was known to be illicit by its participants. It
36   was not unduly prejudicial: Ferreira, who did the same thing,
37   would not be tainted by the conduct of her associates. The
38   admission of this evidence was not plainly erroneous.


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 1        3.   Five days before the scheduled start of trial, Ferreira
 2   sought a 90-day adjournment to review recently produced evidence
 3   and because of her mother’s terminal illness. The district
 4   court observed that most of the recently produced evidence was
 5   cumulative, granted a six-day adjournment nevertheless, and
 6   invited Ferreira to advise the court if the material yielded
 7   anything significant. Ferreira’s motion for adjournment on the
 8   first day of trial was denied.

 9        “Trial judges necessarily require a great deal of latitude
10   in scheduling trials,” and have “broad discretion . . . on matters
11   of continuances.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983).
12   “The denial of a defendant’s request for a continuance will not
13   be reversed absent a showing both of arbitrariness and of
14   prejudice to the defendant.” United States v. Arena, 180 F.3d
15   380, 397 (2d Cir. 1999) (abrogated on other grounds by Scheidler
16   v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403 n.8 (2003)).
17   Ferreira has shown neither arbitrariness nor prejudice, and we
18   find no abuse of discretion in the district court’s denial of
19   (a longer) adjournment.

20        Accordingly, and finding no merit in appellant’s other
21   arguments, we hereby AFFIRM the judgment of the district court.

22                                 FOR THE COURT:
23                                 CATHERINE O’HAGAN WOLFE, CLERK




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