                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2009

USA v. Duronio
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5116




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT



                                  No. 06-5116


                        UNITED STATES OF AMERICA


                                        v.

                              ROGER DURONIO,

                                        Appellant


                 On Appeal from the United States District Court
                            for the District of New Jersey
                District Judge: Honorable Joseph A. Greenaway, Jr.
                          (D.C. Criminal No. 02-cr-00933)


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                               December 8, 2008

                Before: McKEE, SMITH and ROTH, Circuit Judges

                            (Filed: February 9, 2009)


                           OPINION OF THE COURT



MCKEE, Circuit Judge.
       Roger Duronio appeals his conviction and sentence for mail fraud and computer

fraud. The district court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm.

                                             I.

       Inasmuch as we write primarily for the parties, we discuss only the factual and

procedural background necessary to our brief opinion.

                                            A.

       Duronio argues that the district court erred in denying his motion to dismiss the

indictment based on his claim that his due process rights were violated when UBS and its

agents, without the knowledge of the government, destroyed computer hard drives

belonging to a former colleague. Our review of the district court’s legal conclusions is

plenary. United States v. Ramos, 27 F.3d 65, 67 (3d Cir. 1994). We review factual

findings for clear error. Id.

       The district court concluded that UBS and its contractor operated independently of

the government; the government did not have “ready access” to the disputed evidence,

and; even if UBS and its contractor were part of the government investigation, the

defense did not establish “bad faith.” The district court denied Duronio’s motion in an

unpublished Memorandum Opinion dated May 23, 2006. The court also denied

Duronio’s renewed motion to dismiss at the close of evidence and his motion for a new

trial based on the same issue. The district court has thoroughly and adequately explained



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why Duronio’s challenge to the destruction of the evidence does not merit relief, and we

will affirm substantially for the reasons given by the district court.

                                              B.

       Duronio also argues that the district court and the prosecutor “deprived [him] of

due process of law” by denying his request for a “missing witness” instruction and by the

prosecution arguing that he was free to subpoena the supposed “missing witness.” The

witness in question was the co-worker whom Duronio argued was actually responsible for

“dropping” the logic bomb. We review the court’s decisions regarding jury instructions

for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 156 (3d Cir. 2008).

Because Duronio did not contemporaneously object to the prosecution’s rebuttal

summation, our review of his challenge to that is for plain error. United States v.

Brennan, 326 F.3d 176, 182 (3d Cir. 2003).

       We can not agree with Duronio’s contention that the co-worker was “peculiarly”

within the power of the prosecution simply because the witness refused to speak with

defense counsel. Graves v. United States, 150 U.S. 118, 121 (1893). The district court

correctly concluded that the co-worker was equally available to both parties, and there

was therefore no foundation for any missing witness instruction. Accordingly, refusal to

give such an instruction cannot amount to an abuse of discretion. United States v.

Vastola, 899 F.2d 211, 235 (3d Cir. 1990), vacated on other grounds, 497 U.S. 1001

(1990).



                                              3
       We realize that defense counsel was not willing to call the co-worker without

being able to interview him beforehand. However, that does not place the witness beyond

the reach of a subpoena nor render him unavailable. That circumstance merely speaks to

defense counsel’s understandable reluctance to call a witness who has not been

interviewed. It does not transform the witness into someone who is “unavailable” to the

defense. “A witness is not ‘peculiarly available’ to the government simply because the

witness chooses not to discuss the case with the defense.” United States v. Spinosa, 982

F.2d 620, 633 n.7 (1st Cir. 1992).

       Nor was there any error in the prosecutor arguing in summation that Duronio could

have, but declined to, call the co-worker to testify. This was a direct response to

Duronio’s own suggestion that the Government should have called Duronio as a

prosecution witness. See United States v. Sblendorio, 830 F.2d 1382, 1392 (7th Cir.

1987) (“[T]he prosecutor may reply to an argument by the defense that the absence of

some witness counts against the prosecution.”). Having opened the door, Duronio can

hardly complain that the prosecutor decided to enter.

                                             C.

       Finally, Duronio next argues that “the prosecutor’s summation, which

mischaracterized the evidence and the defense, repeatedly impugned defense counsel’s

personal integrity, and vouched for the integrity of the prosecutor’s office, violated

defendant’s right to due process of the law and shifted the burden of proof to the



                                              4
defense.” We again review for plain error because Duronio did not object. United States

v. Brennan, 326 F.3d at 185-86.

       Duronio made this argument in the motion for a new trial that was denied by the

district court. In rejecting the argument, the district court carefully examined each

disputed statement and found no prosecutorial misconduct. App. 26-36. Rather, the court

concluded that the prosecutor’s statements amounted to attacks on the defense theory and

strategy, not attacks on defense counsel. The court also found that the prosecution’s

statement did not attempt to shift the burden to the defendant, but focused the jury’s

attention on holes in the theory of the defense. We find no error, plain or otherwise, in

these conclusions. Duronio also calls attention to a few additional comments not raised in

connection with his motion for a new trial. None of these constitutes a personal attack on

opposing counsel.

       Similarly, we cannot agree that the prosecutor engaged in improper vouching in

making the following argument:

       Let’s be clear, the government bears the burden of proof in this case. The
       defense does not . . . . That is a fact. That is something that we embrace,
       the government embraces. We do not shy away from bad information and
       bad facts. We don’t shy away from the fact there might be some [sic] out
       there. We don’t shy away from the fact that we do not have fingerprints.
       We’re not hiding that, concealing that. I’m not going to try to pin you to
       thinking like they do. I’m not. . . . Not hiding anything. It is what it is.
       Good, bad, or indifferent, the evidence is put before you.

App. 4292-93. Duronio claims this invited the jury to “rely on the prestige of the

prosecutor’s office to support a conviction and suggest[s] that [the prosecutor] had


                                             5
superior knowledge of evidence disproving the alternative explanations [regarding the

source of the logic bomb].” That is a mischaracterization of the statements. We agree

with the district court’s conclusion that the comments were well within the bounds of

proper argument.

                                             II.

       Duronio also raises three claims of error in relation to his sentence. Again, we find

no merit in his arguments.

                                             A.

       Duronio argues that the district court improperly calculated the aggregate loss

resulting from the total sum UBS spent on computer hardware in response to the logic

bomb attack in calculating the loss. The total loss calculated by the court resulted in an

eighteen point offense-level increase for Duronio.

       Loss must be established by a preponderance of the evidence. United States v. Ali,

508 F.3d 136, 143-45 (3d Cir. 2007) (citations omitted). The district court’s finding was

amply supported by the record. The district court was not required to credit the value of

the new computers against the loss simply because UBS continued to use those computers

after the recovery effort ended.

                                             B.

       The PSR recommended a two-level increase in Duronio’s offense-level pursuant to

U.S.S.G. § 2B1.1(b)(8)(C). It also recommended a separate, two-level increase for abuse

of a position of trust under U.S.S.G. § 3B1.3. The district court imposed both

                                             6
enhancements without objection from Duronio. Now, however, Duronio argues that

those enhancements amounted to double-counting. Given the absence of a

contemporaneous objection, we review for plain error. Duronio ignores that these

enhancements were based on different characteristics of the crime - i.e., the sophistication

required to write and secretly install the logic bomb, and the fact that Duronio abused his

position and access to his employer’s computer system to commit the crime. The

precedent that Duronio relies upon to argue to the contrary does not convince us

otherwise.

                                             C.

       Finally, while imposing sentence, the district court observed: “. . . Mr. Duronio,

having felt himself wronged, came up with an elaborate, detailed, complicated and

sophisticated scheme to, essentially, bring down the company.” App. 4627. Duronio

argues that this amounted to unsupported “fact-finding.” However, this comment and

other similar comments that Duronio relies upon are merely observations about “the

nature and circumstances of the offense and the history and characteristics of the

defendant.” 18 U.S.C. § 3553(a). Those observations are consistent with the guilty

verdict, and we do not find them improper or erroneous.

                                            IV.

       For the reasons stated above, the conviction and sentence of Roger Duronio will be

affirmed.



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