    13-4702-cr
    United States v. Roy



                            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
    20th day of April, two thousand fifteen.

    PRESENT:
                ROBERT A. KATZMANN,
                                  Chief Judge,
                ROSEMARY S. POOLER,
                SUSAN L. CARNEY,
                                  Circuit Judges.
    ____________________________________________

    UNITED STATES OF AMERICA,

                             Appellee,

                       v.                                        No. 13-4702-cr

    EMMANUEL ROY,

                             Defendant-Appellant,

    DANNY SIONY, AKA Rahim Siuny Kalimi,
    SHIRIN KALIMI, AKA Shirin Siouny, TARIFF
    DILL, CONSTANTINE GIANNAKOS,

                      Defendants.
    ____________________________________________

    For Defendant-Appellant:                        B. ALAN SEIDLER, New York, NY.


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For Appellee:                                   ROBERT L. BOONE, Assistant United States Attorney
                                                (Brian A. Jacobs, 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
(Griesa, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

        Defendant Emmanuel Roy appeals from a judgment of conviction, entered on December

10, 2013, by the U.S. District Court for the Southern District of New York (Griesa, J.), following

a jury trial in which Roy was convicted of one count of conspiracy to commit wire fraud in

violation of 18 U.S.C. § 1349, three counts of wire fraud in violation of 18 U.S.C. § 1343, and

one count of conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349.

On appeal, Roy argues that the district court erred by: (1) dismissing a juror who knew a defense

witness; (2) providing a jury instruction on the reasonable doubt standard that failed to compare

that standard to other lower standards of proof and that included an allegedly improper “hesitate

to act” formulation of reasonable doubt; (3) failing to instruct the jury on the “factual

underpinnings” of Roy’s charged crimes; (4) failing to provide the jurors with a copy of the

Indictment; and (5) excluding certain expert testimony.1 For the reasons explained below and in


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          Roy also argues that the district court erred by failing to instruct the jury that there is an
“overt act” element for the two conspiracy charges under 18 U.S.C. § 1349. We address this
issue in a separate opinion, in which we hold that proof of an overt act is not required for a
conspiracy conviction under 18 U.S.C. § 1349 and that the district court therefore did not err in
failing to instruct the jury on that element.



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the separate opinion that will be filed with this order, we affirm the judgment of the district

court. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.

       Roy first argues that the district court erred by dismissing a juror who indicated that she

knew a key defense witness after that witness had testified. “District courts have broad discretion

under Federal Rule of Criminal Procedure 24(c) to replace a juror at any time before the jury

retires if the court finds that a juror is unable or disqualified to perform her duties.” United States

v. Fazio, 770 F.3d 160, 169 (2d Cir. 2014) (internal quotation marks and alterations omitted).

“Removal of a juror is the prerogative of the court and does not require the consent of any

party.” Id. (internal quotation marks omitted). “A reviewing court should not disturb the trial

judge’s exercise of discretion in dismissing a juror unless there is a bias or prejudice to the

defendant.” United States v. Gambino, 951 F.2d 498, 503 (2d Cir. 1991) (internal quotation

marks omitted). “Prejudice in this context exists when the discharge is without factual support, or

for a legally irrelevant reason.” Fazio, 770 F.3d at 170 (internal quotation marks omitted).

       Here, the juror at issue said that she knew a defense witness from “25 years ago.” Trial

Tr. 671. In the judgment of the district court, this witness “was an important defense witness.”

Trial Tr. 678. Given the witness’s role and the juror’s previous interactions with the witness, we

do not find that the discharge was an abuse of discretion or that it was “without factual support,

or for a legally irrelevant reason.” Fazio, 770 F.3d at 170 (internal quotation marks omitted).

       Roy also challenges several of the district court’s instructions to the jury. We review de

novo a district court’s jury instruction. See United States v. Naiman, 211 F.3d 40, 50 (2d Cir.

2000). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or

does not adequately inform the jury on the law.” Id. at 51 (internal quotation marks omitted). A


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defendant challenging a jury instruction must demonstrate that he requested a charge that

“accurately represented the law in every respect” and that the charge delivered was erroneous

and prejudicial. United States v. Applins, 637 F.3d 59, 72 (2d Cir. 2011) (internal quotation

marks omitted). In reviewing jury instructions, we look not only to the particular words or

phrases challenged by the defendant, but also to “the instructions as a whole to see if the entire

charge delivered a correct interpretation of the law.” United States v. Al Kassar, 660 F.3d 108,

127 (2d Cir. 2011) (internal quotation marks omitted). As a general matter, no particular wording

is required for an instruction to be legally sufficient, so long as “taken as a whole” the

instructions correctly convey the required legal principles. Victor v. Nebraska, 511 U.S. 1, 5

(1994) (internal quotation marks omitted). The trial court “has discretion to determine what

language to use in instructing the jury as long as it adequately states the law.” United States v.

Alkins, 925 F.2d 541, 550 (2d Cir. 1991).

       Additionally, Rule 30 of the Federal Rules of Criminal Procedure provides that “[a] party

who objects to any portion of the instructions or to a failure to give a requested instruction must

inform the court of the specific objection and the grounds for the objection before the jury retires

to deliberate.” Fed. R. Crim. P. 30(d).

       Roy challenges the district court’s instruction on reasonable doubt in two ways. Because

Roy did not raise a timely and specific objection to this instruction before the district court, we

review those instructions only for plain error. United States v. Middlemiss, 217 F.3d 112, 121 (2d

Cir. 2000); see United States v. Shaoul, 41 F.3d 811, 817 (2d Cir. 1994) (“The error must be so

plain that the trial judge and prosecutor were derelict in countenancing it, even absent the

defendant’s timely assistance in detecting it.” (internal quotation marks and alterations omitted)).


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       On appeal, Roy argues that the reasonable doubt instruction was deficient because it did

not place “reasonable doubt in the context of other standards applicable in criminal cases.”

Appellant’s Br. 24. Roy cites no cases in support of this proposition, however, and the Supreme

Court has made clear that there is no requirement “that any particular form of words be used in

advising the jury of the government’s burden of proof.” Victor, 511 U.S. at 5. Additionally, Roy

contends that the district court erred in including the “hesitate to act” formulation of the

reasonable doubt standard. But both the Supreme Court and this Court have expressly approved

instructions defining reasonable doubt using the “hesitate to act” standard. See Holland v. United

States, 348 U.S. 121, 140 (1954); see also Victor, 511 U.S. at 20–21; Perez v. Irwin, 963 F.2d

499, 502 (2d Cir. 1992). As such, the reasonable doubt instruction was not plainly erroneous.

       Roy also contends that the jury charge was flawed because the district court did not

explain to the jury the “factual underpinnings of the charged crimes.” Appellant’s Br. 31.

Specifically, Roy argues that the district court “refused to inform the jury how Count One . . .

could be placed in [the] context of Roy’s conduct.” Id. at 32. Roy misapprehends the purpose of

jury instructions, however, because they should primarily “instruct the jury on the law.” Fed. R.

Crim. P. 30(a). Further, when reviewing the instructions as a whole, we conclude that the district

court provided a full, straightforward explanation of the charges against Roy and included

descriptions of a number of relevant facts.

       Next, Roy argues that the district court erred by refusing to provide the jury with a copy

of the Indictment. This argument fails as well because there is no legal requirement that jurors be

provided with a copy of an indictment. See United States v. Esso, 684 F.3d 347, 350 (2d Cir.

2012) (noting that it has been “long recognized that trial courts may, in their discretion, permit


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the jury to take a copy of the indictment into the jury room” (internal quotation marks and

alterations omitted)); United States v. Press, 336 F.2d 1003, 1016 (2d Cir. 1964) (noting that the

decision whether to “give the indictment to the jury for use during its deliberations” rests “in the

sound discretion of the court”).

       Finally, we construe Roy’s letter dated March 23, 2015, which was filed pursuant to Rule

28(j) of the Federal Rules of Appellate Procedure, as an argument that the district court erred by

not admitting certain expert testimony. But arguments not raised in an appellant’s opening brief

are generally waived, even if those arguments were raised before the trial court. See, e.g.,

McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005). Additionally, even if we were to consider

Roy’s challenge, it has no merit. See, e.g., Zuchowicz v. United States, 140 F.3d 381, 386 (2d

Cir. 1998) (“We review the district court’s decision to admit or exclude expert testimony under a

highly deferential abuse of discretion standard.”).

       We have considered Roy’s remaining arguments and find them to be without merit. For

the reasons stated herein and in the separate opinion accompanying this order, the district court’s

judgment of conviction is AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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