10-4798-cr
United States v. Morrow



                          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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of March, two thousand twelve.

PRESENT:
            PIERRE N. LEVAL,
            ROBERT D. SACK,
            PETER W. HALL,
                  Circuit Judges.
__________________________________________

United States of America,

                  Appellee,

                          v.                                        10-4798-cr

Joanne Allen,

                  Defendant,

Neb Morrow, III,

            Defendant-Appellant.
__________________________________________
FOR APPELLANT:                 Neb Morrow, III, pro se, Auburn, NY.


FOR APPELLEE:                  Brian A. Jacobs, Iris Lan, Assistant United States Attorneys, of
                               counsel, for Preet Bharara, United States Attorney for the Southern
                               District of New York, New York, NY.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Marrero, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Neb Morrow, III, proceeding pro se, appeals from the district court’s judgment

denying his request for an adjournment of his trial date, denying his motion for a judgment of

acquittal pursuant to Fed. R. Crim. P. 29, and overruling his objection to the district court’s jury

instructions. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

I.     Venue

       Morrow complains that venue was not proper in the Southern District of New York,

which includes Manhattan. Venue in the Southern District of New York was properly supported

in two ways—first by evidence that Morrow, in furtherance of the robbery conspiracy, attempted

to rob a Radio Shack store in Manhattan, and, second, by evidence that interstate commerce in

the Southern District of New York was affected when, as a result of the robbery of Radio Shack

stores in Queens and Brooklyn and the attempt in the Manhattan store, the Manhattan store was

closed for two hours.




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II.     The Alleged Suppression of Exculpatory Evidence

        Morrow further argues that he was denied due process of law in violation of Brady v.

Maryland, 373 U.S. 83 (1963), because the police suppressed and failed to turn over to him the

surveillance video in the Manhattan store, which he asserts might have shown that it was not he

who tried to rob it, and a box in the store that was handled by the person who entered, which

might have had fingerprints on it. But he has made no showing that the police ever had

possession of the evidence, or destroyed or suppressed it, much less that the evidence would

have supported his claim.

III.    Denial of Adjournment Request

        The decision whether to grant an adjournment or a continuance is a matter “traditionally

within the discretion of the trial judge.” United States v. O’Connor, 650 F.3d 839, 854 (2d Cir.

2011) (internal quotation marks omitted). We review an order denying a continuance for abuse

of discretion, and “will find no such abuse unless the denial was an arbitrary action that

substantially impaired the defense.” Id. (internal quotation marks omitted). “The burden of

showing such an impairment is on the party complaining of the lack of a sufficient continuance.”

Id. Here, the district court did not abuse its discretion in denying Morrow’s second request to

adjourn the trial date.

IV.     Post-Submission Motion

        After the case was submitted to the Court, Morrow filed a motion to supplement the

record on March 8, 2012, pursuant to Fed. R App. P. 10(e)(2)(C). Morrow seeks permission to

add trial transcripts from a state-court proceeding that, he asserts, demonstrate that a police

officer who testified at Morrow’s trial lied about the circumstances leading to Morrow’s arrest.


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The state trial, however, took place after the federal trial on which this appeal is based. Because

the proposed new materials could not have been part of the district court record in any event, see

Fed. R. App. P. 10(e)(2), we deny the motion.

       We have considered Morrow’s other arguments on appeal and have found them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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