15-2549-cr
United States v. Alcantara

                                  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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
22nd day of December, two thousand sixteen.

Present:         ROSEMARY S. POOLER,
                 PETER W. HALL,
                 RAYMOND J. LOHIER, JR.,
                            Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                    Appellee,

                             v.                                                   15-2549-cr

DIGNA ALCANTARA, AKA Sealed Defendant 1,
AKA Hipolita Suarez,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:            Lawrence Gerzog, New York, NY.

Appearing for Appellee:             Damian Williams, Assistant United States Attorney (Michael
                                    Ferrara, Assistant United States Attorney, on the brief), for Preet
                                    Bharara, United States Attorney for the Southern District of New
                                    York, New York, NY.
       Appeal from the United States District Court for the Southern District of New York
(Swain, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-Appellant Digna Alcantara appeals from the judgment entered on August 7,
2015 in the United States District Court for the Southern District of New York (Swain, J.),
convicting her of theft of government property, in violation of 18 U.S.C. § 641, and aggravated
identity theft, in violation of 18 U.S.C. § 1028A, following a five-day jury trial. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        First, Alcantara argues that the district court erred in permitting the government to reopen
its case following defense counsel’s summation. We conclude that the district court did not so
err. A district court “retains wide discretion to allow the government to re-open its case to correct
errors or if some other compelling circumstance justifies a reopening and no substantial
prejudice will occur.” United States v. Parkes, 497 F.3d 220, 231 (2d Cir. 2007) (internal
quotation marks, brackets, and citation omitted)). This Court reviews a district court’s decision to
reopen a case for abuse of discretion. See United States v. Bennett, 709 F.2d 803, 806 (2d Cir.
1983). A district court abuses its discretion when “(1) its decision rests on an error of law (such
as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its
decision—though not necessarily the product of a legal error or a clearly erroneous factual
finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y.,
Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted).

        Here, the district court did not abuse its discretion in permitting the government to reopen
its case. Defense counsel expressed an intention to raise defenses (e.g., misidentification, third-
party guilt) that would not contest Alcantara’s intent to commit the charged crimes. During the
defense summation, however, counsel argued that Alcantara was taken advantage of by other
participants in the criminal scheme and suggested that Alcantara may have lacked the requisite
intent to commit the charged crimes. By referring to Alcantara as a “patsy” and a “dupe,” or as
“fragile” and “paranoid,” defense counsel’s summation invited the jury to question whether
Alcantara’s mental illness affected whether she had the specific intent to steal government funds.
Trial Tr. at 361:9-14, 375:11-376:6, United States v. Alcantara, No. 13-cr-00119 (S.D.N.Y. Feb.
24, 2015), ECF No. 57. In light of these statements, the district court did not abuse its discretion
in reopening the case to permit the government to respond to a defense that it was told would not
be raised. Moreover, the district court’s determination that defense counsel’s summation placed
into issue defendant’s knowledge and intent did not rest on an error of law or a clearly erroneous
factual finding, and did not otherwise fall outside the range of permissible decisions. See Zervos,
252 F.3d at 169.

       Second, Alcantara argues that the district court erred in admitting Alcantara’s prior
conviction for conspiracy to commit tax fraud. Under Federal Rule of Evidence 404(b), a court
may admit evidence of a defendant’s crimes, wrongs, or other acts for purposes other than
proving the defendant’s criminal propensity. See Fed. R. Evid. 404(b). “This Circuit has adopted


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an ‘inclusionary’ approach to other act evidence under Rule 404(b), which allows such evidence
to be admitted for any purpose other than to demonstrate criminal propensity.” United States v.
Scott, 677 F.3d 72, 79 (2d Cir. 2012) (quoting United States v. LaFlam, 369 F.3d 153, 156 (2d
Cir. 2004)). This Court applies the inquiry in Huddleston v. United States, 485 U.S. 681, 691-91
(1988) in order “[t]o determine whether a district court properly admitted other act evidence.”
Scott, 677 F.3d at 79 (alteration in original) (quoting LaFlam, 369 F.3d at 156). Under that
inquiry, “the reviewing court considers whether (1) it was offered for a proper purpose; (2) it was
relevant to a material issue in dispute; (3) its probative value is substantially outweighed by its
prejudicial effect; and (4) the trial court gave an appropriate limiting instruction to the jury if so
requested by the defendant.” Id. (quoting LaFlam, 369 F.3d at 156). Although we “ordinarily
review evidentiary rulings for abuse of discretion,” because Alcantara failed to raise this
objection at trial, “we review the admission of this evidence for plain error.” United States v.
Pierce, 785 F.3d 832, 840 (2d Cir. 2015).

        We apply the Huddleston inquiry here. Under the first prong of the Huddleston inquiry,
the government offered the prior conviction for a proper purpose: proving Alcantara’s
knowledge and intent. Fed. R. Evid. 404(b). Because of the similarities between Alcantara’s
prior conviction and the present facts—both involved the theft of Puerto Rican residents’
identities to generate fraudulent tax refunds; both involved tax preparation businesses where
Alcantara worked—Alcantara’s prior experiences are probative of both her knowledge that it
was unlawful to use another’s means of identification to process fraudulent tax returns and her
intent to use fake means of identification to steal government property. Cf. United States v.
Caputo, 808 F.2d 963, 968 (2d Cir. 1987) (finding that defendants’ ties to prior credit card
schemes were probative of their intent in possessing credit card account numbers to commit
access device fraud).

       Under the second prong of the Huddleston inquiry, the prior conviction was relevant to a
material issue in dispute: Alcantara’s knowledge or intent to commit the charged offenses. As
discussed above, defense counsel’s summation placed these issues in dispute.

        Under the third prong of the Huddleston inquiry, courts in this Circuit apply the
balancing test of Federal Rule of Evidence 403 to determine whether the evidence’s probative
value is substantially outweighed by its prejudicial effect. See Fed. R. Evid. 403; Scott, 677 F.3d
at 83. Here, although the district court did not conduct such a balancing analysis, this omission is
understandable given that the parties agreed to admit evidence of the prior tax fraud conspiracy
conviction by stipulation and defense counsel failed to object to the lack of an on-the-record
balancing analysis.

        Lastly, under the fourth prong of the Huddleston inquiry, the district court here provided
an instruction intended to limit the prejudicial effect of Alcantara’s prior conviction for
conspiracy to commit tax fraud. That limiting instruction militates in favor of the admissibility of
the prior conviction under Rule 404(b). See, e.g., United States v. Araujo, 79 F.3d 7, 8 (2d Cir.
1996) (finding that the district court did not abuse its discretion in admitting other act evidence,
“particularly in light of the instruction to the jury limiting its consideration of the evidence” to
the permissible issues).



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       In sun, after applying these four prongs of the Huddleston inquiry to the present facts, we
conclude that the district court did not err—at all, much less plainly—when it admitted
Alcantara’s prior conviction for conspiracy to commit tax fraud under Rule 404(b).

        We have considered the remainder of Alcantara’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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