      14-4725
      United States v. Constantinou


                              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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                     At a stated term of the United States Court of Appeals for the Second
      Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
      City of New York, on the 22nd day of January, two thousand sixteen.

      PRESENT:
                         ROBERT A. KATZMANN,
                             Chief Judge,
                         AMALYA L. KEARSE,
                             Circuit Judge,
                         LORNA G. SCHOFIELD,
                             District Judge.*


      UNITED STATES OF AMERICA,
                      Appellee,

                         v.                                                No. 14-4725

      ANDREW CONSTANTINOU,
                    Defendant-Appellant,

      GENEVIEVE SALVATORE, LAWRENCE
      DRESSLER, KWAME NKRUMAH, a/k/a Roger
      Woodson, JACQUES KELLY,
                       Defendants.†


      *
       The Honorable Lorna G. Schofield, of the United States District Court for the Southern District
      of New York, sitting by designation.
      †
          The Clerk of Court is directed to amend the caption as indicated above.
For Appellee:                                          DAVID T. HUANG, Assistant United States
                                                       Attorney, District of Connecticut (Mark E.
                                                       Coyne, Assistant United States Attorney,
                                                       District of New Jersey (of counsel), on the
                                                       brief), for Loretta E. Lynch, United States
                                                       Attorney General, Washington, DC, and
                                                       Paul J. Fishman, United States Attorney for
                                                       the District of New Jersey, Newark, NJ.

For Defendant-Appellant:                               NORMAN A. PATTIS (Daniel M. Erwin, on
                                                       the brief), The Pattis Law Firm, LLC, New
                                                       Haven, CT.


      Appeal from a judgment of the United States District Court for the District of
Connecticut (Hall, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Andrew Constantinou appeals a judgment of conviction entered on

December 22, 2014, by the United States District Court for the District of Connecticut (Hall,

C.J.), following a jury verdict finding him guilty of conspiracy to commit bank, mail, and wire

fraud in violation of 18 U.S.C. § 1349. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

       First, Constantinou advances the novel argument that the district court “constructively”

closed the courtroom, and thereby violated his Sixth Amendment right to a public trial, when,

during voir dire, it conducted sidebars with certain jurors in open court, on the record, and in the

presence of counsel for all parties. Constantinou concedes that he did not object to the district

court’s use of sidebars in this manner and that, at best, his constructive-closure theory is subject

to plain-error review. Constantinou further concedes that he “raises on appeal what is apparently

an issue of first impression, to wit: Whether intermittent voir dire conducted at sidebar violates


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his Sixth Amendment right to a public trial,” Appellant Br. 19, and that the procedure he

complains of is “common practice in the District of Connecticut,” id. at 6.

       To succeed on a claim under plain-error review, “an appellant must demonstrate,” among

other things, that the purported “error is clear or obvious, rather than subject to reasonable

dispute.” United States v. Bastian, 770 F.3d 212, 219 (2d Cir. 2014) (quoting United States v.

Marcus, 560 U.S. 258, 262 (2010)). Even assuming—and it is a generous assumption—that

Constantinou has identified an error in the district court’s use of sidebars, such error cannot be

“clear or obvious” if we have never questioned the procedure and it is common practice. Cf.

Bastian, 770 F.3d at 221; United States v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001).

Accordingly, his claim fails.

       Second, Constantinou contends that the district court erroneously refused his requests to

sever his trial from that of co-defendant Jacques Kelly. “Whether to grant or deny a severance

motion is committed to the sound discretion of the trial judge. The district court’s exercise of that

discretion is virtually unreviewable.” United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998)

(citations and quotation marks omitted). Furthermore, “[t]here is a preference in the federal

system for joint trials of defendants who are indicted together. This preference is particularly

strong where, as here, the defendants are alleged to have participated in a common plan or

scheme.” Id. (citations and quotation marks omitted).

       Constantinou argues that severance was warranted because his defense conflicted with

that of his co-defendant. The district court addressed this argument before and after trial,

concluding that severance was not necessary because the defenses were not mutually exclusive.

See Gov’t App. 46; United States v. Constantinou, No. 3:11-CR-192 (JCH), 2014 U.S. Dist.

LEXIS 122915, at *14–15 (D. Conn. Sept. 2, 2014); see also United States v. Cardascia, 951



                                                  3
F.2d 474, 484 (2d Cir. 1991). We conclude that the district court did not abuse its discretion in

making this determination.

       Third, Constantinou contends that the district court erroneously declined to conduct a

hearing to explore an alternate juror’s post-verdict allegations of pre-deliberation juror

misconduct. “We review for abuse of discretion the district court’s handling of alleged juror

misconduct.” United States v. Farhane, 634 F.3d 127, 168 (2d Cir. 2011). “A district court’s

investigation of juror misconduct or bias is a delicate and complex task. Therefore, a trial judge

has broad flexibility in such matters, especially when the alleged prejudice results from

statements by the jurors themselves, and not from media publicity or other outside influences.”

United States v. Peterson, 385 F.3d 127, 134 (2d Cir. 2004) (citations and quotation marks

omitted).

       Here, an alternate juror provided multiple unsolicited communications to the district court

describing what he believed were improper pre-deliberation comments from his fellow jurors.

The district court inquired about the alternate juror’s availability to discuss the allegations, but

the alternate juror indicated there was nothing more to add to what had been stated. The district

court then received full briefing on the issue from the parties, and, in a thorough opinion

exploring the issue, it explained that no hearing was necessary because there was not “clear,

strong, substantial and incontrovertible evidence that a specific nonspeculative impropriety has

occurred which could have prejudiced the trial.” App. 101 (quoting United States v. Stewart, 433

F.3d 273, 302–03 (2d Cir. 2006)). We conclude that the district court’s handling of this matter

was an appropriate exercise of its discretion. Cf. Peterson, 385 F.3d at 135.




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       We have considered the remaining arguments advanced on appeal and find no basis for

reversal. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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