         10-4910-cr
         United States v. Koschuk

                                 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 16th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                J. GARVAN MURTHA,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                                10-4910-cr
19
20       CHAD KOSCHUK,
21
22                                     Defendant-Appellant.
23
24
25       FOR APPELLANT:                JULIA PAMELA HEIT, New York, NY.
26
27       FOR APPELLEE:                 ANTHONY M. BRUCE, Assistant United States
28                                     Attorney (W. Seth Calleri, Student Law
29                                     Clerk, on the brief), for William J.
30                                     Hochul, Jr., United States Attorney for
31                                     the Western District of New York,
32                                     Buffalo, NY.

                *
                The Honorable J. Garvan Murtha, of the United States District Court for
         the District of Vermont, sitting by designation.
1         Appeal from the United States District Court for the
2    Western District of New York (Skretny, C.J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Western District of New York be AFFIRMED.

7        Appellant Chad Koschuk appeals from a judgment of the

8    United States District Court for the Western District of New

9    York (Skretny, C.J.).     Koschuk was convicted after a jury

10   trial of threatening to cause bodily injury to a witness

11   with the intent to retaliate against him for providing

12   information at an official proceeding and providing to a law

13   enforcement officer information relating to the possible

14   commission of a federal offense in violation of 18 U.S.C. §

15   1513(b).   The district court sentenced Koschuk principally

16   to 18 months’ incarceration.     We assume the parties’

17   familiarity with the underlying facts, the procedural

18   history, and the issues presented for review.

19       Koschuk raises a number of arguments on appeal.       He

20   first contends that the evidence was insufficient to convict

21   him of the charge.     A criminal defendant challenging the

22   sufficiency of the evidence supporting a conviction bears a

23   heavy burden.     United States v. Brown, 937 F.2d 32, 35 (2d

24   Cir. 1991).     “[T]he relevant question [on appeal] is

                                     2
1    whether, after viewing the evidence in the light most

2    favorable to the prosecution, any rational trier of fact

3    could have found the essential elements of the crime beyond

4    a reasonable doubt.”    Jackson v. Virginia, 443 U.S. 307, 319

5    (1979).    From our review of the record, there was more than

6    sufficient circumstantial evidence from which a jury could

7    reasonably infer that Koschuk threatened Macken with bodily

8    injury and that Koschuk was aware that Macken was a witness

9    and had provided information about a federal offense to law

10   enforcement agents.    See United States v. Draper, 553 F.3d

11   174, 180 (2d Cir. 2009).

12       Koschuk next claims that his statement to Macken enjoys

13   First Amendment protection.    That argument is without merit.

14   True threats are not protected by the First Amendment.     See,

15   e.g., United States v. Malik, 16 F.3d 45, 50-51 (2d Cir.

16   1994).    On the basis of the evidence presented to it, the

17   jury could conclude that Koschuck’s statements to Macken

18   constituted a threat of bodily injury.    Notably, Koschuk’s

19   trial counsel conceded as much before the district court.

20       Similarly unavailing is Koschuk’s contention that his

21   conviction must be reversed on the basis of two unobjected-

22   to comments by the Assistant United States Attorney during


                                    3
1    summation.   "A defendant bears a substantial burden in

2    arguing for reversal on the basis of prosecutorial

3    misconduct in the summation."       United States v. Caracappa,

4    614 F.3d 30, 41 (2d Cir. 2010).      Generally, "[i]n

5    determining whether an inappropriate remark amounts to

6    prejudicial error, we look to the severity of the

7    misconduct, the measures adopted to cure the misconduct, and

8    the certainty of conviction absent the misconduct."         Id.

9    (internal quotation marks omitted).      Where the defendant

10   does not object to the government’s summation, we will

11   reverse only for “flagrant abuse.”       United States v.

12   Zichettello, 208 F.3d 72, 103 (2d Cir. 2000).      To reverse a

13   conviction on the basis of the government improperly

14   commenting on the defendant’s failure to testify at trial,

15   the comment, viewed in context, must be “of such a character

16   that the jury would naturally and necessarily take it to be

17   a comment on the failure of the accused to testify.”         United

18   States v. Pitre, 960 F.2d 1112, 1124 (2d Cir. 1992)

19   (internal quotation marks omitted) (emphasis added).        We are

20   satisfied that the prosecutor’s comments did not run afoul

21   of these legal principles.

22


                                     4
1        After a thorough review of the record, we find

2    Koschuk’s remaining arguments–including the argument that

3    his below-Guidelines sentence of 18 months’ incarceration is

4    substantively unreasonable–to be without merit.

5        For the foregoing reasons, the judgment of the district

6    court is hereby AFFIRMED.

 7
 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
11




                                  5
