         12-828-cr
         United States v. Ezeobi

                                   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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of April, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER,
 7                RICHARD C. WESLEY
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                        -v.-                                              No. 12-828-cr
18
19       CHIDI EZEOBI,
20
21                                     Defendant-Appellant.
22
23
24       FOR APPELLANT:                JAMES M. BRANDEN, New York, NY.
25
26       FOR APPELLEES:                CARRIE H. COHEN, Assistant United States
27                                     Attorney (Shane T. Stansbury, Brent S.
28                                     Wible, Assistant United States Attorneys,
29                                     on the brief), for Preet Bharara, United
30                                     States Attorney for the Southern District
31                                     of New York.
32
33
1         Appeal from the United States District Court for the
2    Southern District of New York (Cote, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the order is AFFIRMED.

6        Defendant-appellant Chidi Ezeobi appeals from a

7    February 16, 2012 judgment of conviction entered by the

8    United States District Court for the Southern District of

9    New York (Cote, J.) following a jury trial.    We assume the

10   parties’ familiarity with the facts and procedural history

11   of the case.

12       Ezeobi argues that the district court’s admission of

13   evidence regarding his arrest at London’s Heathrow Airport

14   over two years after the offense of conviction was improper

15   under Federal Rule of Evidence 404(b).    After careful

16   review, we find it unnecessary to determine whether the

17   district court erred by admitting this evidence because any

18   such error was harmless.   “In the absence of a

19   constitutional violation, the erroneous admission of

20   evidence is subject to the harmless error test of Federal

21   Rule of Criminal Procedure 52(a).”   United States v.

22   Grinage, 390 F.3d 746, 751 (2d Cir. 2004).    “A district

23   court’s erroneous admission of evidence is harmless if the

24   appellate court can conclude with fair assurance that the

                                   2
1    evidence did not substantially influence the jury.”     United

2    States v. Al-Moayad, 545 F.3d 139, 164 (2d Cir. 2008)

3    (quotation marks omitted).

4        The government’s case included substantial evidence

5    against Ezeobi regarding the offense of conviction,

6    including testimony; phone, hotel, and bank records; and

7    physical evidence.   In light of this, we cannot conclude

8    that the allegedly “erroneously admitted evidence [went] to

9    the heart of the case against the defendant” or that “the

10   other evidence against the defendant [was] weak.”     See

11   Grinage, 390 F.3d at 751; see also United States v. Garcia,

12   413 F.3d 201, 217 (2d Cir. 2005) (evidentiary ruling was

13   harmless where it “had no substantial and injurious effect

14   or influence on the jury verdict.” (internal quotation marks

15   omitted)).   The fact that the jury in Ezeobi’s case returned

16   a mixed verdict, failing to convict him on two of the

17   charged counts, further “demonstrates the jury was not

18   confused and could segregate the 404(b) evidence from other

19   evidence.”   United States v. McNair, 605 F.3d 1152, 1205

20   (11th Cir. 2010).

21

22


                                   3
1        We have considered all of Ezeobi’s arguments and find

2   them to be without merit.   For the reasons stated above, the

3   judgment of the district court is AFFIRMED.

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6
7




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