14-4208-cr(L)
United States v. Greenberg

                             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
31st day of August, two thousand sixteen.

Present:    CHESTER J. STRAUB,
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges,
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,
                                                                   14-4208-cr(L),
                 v.                                                14-4278-cr(CON)

DANIEL GREENBERG,

                  Defendant-Appellant.
_____________________________________

For Appellee:                                CHARLES N. ROSE, David C. James, Walter M.
                                             Norkin, Assistant United States Attorneys, New
                                             York, N.Y., for Robert L. Capers, United States
                                             Attorney for the Eastern District of New York, for
                                             the United States of America.

For Defendant-Appellant:                     ERIC M. CREIZMAN, Creizman PLLC, New York,
                                             N.Y., for Daniel Greenberg.




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        Appeal from a corrected judgment of conviction and order of forfeiture in the United

States District Court for the Eastern District of New York (Spatt, J.), entered on November 7,

2014.

        UPON      DUE      CONSIDERATION             WHEREOF,          it   is   hereby    ORDERED,

ADJUDGED, AND DECREED that the judgment of conviction of Defendant-Appellant Daniel

Greenberg is AFFIRMED.

        This criminal action stems from a series of unauthorized credit card charges from

Greenberg’s digital retail company, Classic Closeouts, LLC (“CCL”).              Following a jury trial,

Greenberg was convicted of all thirteen counts in the Superseding Indictment: wire fraud, in

violation of 18 U.S.C. § 1343 (Counts 1-8); access device fraud, in violation of 18 U.S.C.

§§ 1029(a)(5) and 1029(c)(1)(A)(ii) (Count 9); aggravated identity theft, in violation of 18

U.S.C. §§ 1028A(a)(1), 1028A(b), 1028A(c), and 1028A(c)(5) (Count 10); and money

laundering in violation of 18 U.S.C. § 1957(a) (Counts 11-13).          We describe in detail the facts

and procedural history of this case in a concurrently published opinion.

        On appeal, Greenberg brings six claims relating to: (1) sufficiency of the evidence; (2)

the admission of lay opinion testimony; (3) comments made by the Government during

summation; (4) jury instructions; (5) his Sentencing Guidelines calculation; and (6) the factual

basis for the restitution order.1   We have carefully considered the claims enumerated here and,

after a thorough review of the record, we conclude that they are without merit. One issue,

however, merits further discussion.


1
  We address two additional issues — whether the district court erred in denying Greenberg’s motion to
dismiss on the basis of spoliation of evidence, and whether the district court erred in denying the motion
to dismiss the wire fraud counts for lack of convergence — in an opinion issued simultaneously with this
summary order, in which we conclude that the district court did not err in either regard.



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                                           *       *       *

          Greenberg argues that he was deprived of a fair trial because of prosecutorial misconduct.

Specifically, he claims that the Government made improper comments during its summation by

(1) “repeatedly refer[ring] to ‘lies’ Greenberg made in written communications during the

alleged fraud;” (2) “describ[ing] defense counsel’s opening statements to the jury as either ‘a lie’

or ‘a bunch of lies;’” and (3) “bolster[ing] the credibility [of the] government’s witnesses by

comparing their testimony with Greenberg’s constitutionally-protected decision not to testify at

trial.”   Greenberg Br. 49-50 (emphasis omitted).          At the close of summations Greenberg

objected and made a motion for a mistrial.2         Judge Spatt denied the motion, noting that this

“was one of the most innocuous closing statements [he] ha[d] heard.”           App’x 614.   The district

court added: “There was nothing wrong with [the prosecutor’s] closing arguments. It was

perfectly proper in all respects. In my view, maybe too proper.”         Id.

          On appeal, Greenberg challenges this determination, arguing that “[i]n its closing

arguments, the prosecution made inflammatory and prejudicial comments that deprived Mr.

Greenberg of his right to a fair trial.” Greenberg Br. 48. We review the district court’s denial

of a motion for mistrial for abuse of discretion. See United States v. Canova, 412 F.3d 331, 348

(2d Cir. 2005). “‘Inappropriate prosecutorial comments, standing alone, would not justify a

reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.’”

United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002) (quoting United States v. Young, 470

U.S. 1, 11-12 (1985)). Rather, a defendant seeking reversal on this basis must establish that

2
  In making that motion, Greenberg identified three comments as “very prejudicial and inappropriate,”
warranting a mistrial. App’x 614. We note, however, that in Greenberg’s contemporaneous objection
and motion, his identification of the offending comments differed from how he has identified them in this
appeal. Because we conclude that Greenberg’s argument is without merit whether reviewed pursuant to
an abuse of discretion standard or for plain error, we may assume that the argument was properly
presented in its entirety.


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“the prosecutor[’s] comments ‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). To that end, the defendant bears a

substantial burden because he must show that “the remarks caused the defendant substantial

prejudice” to provide grounds for reversal. United States v. Rosa, 17 F.3d 1531, 1549 (2d Cir.

1994).    In considering whether prosecutorial misconduct caused “substantial prejudice,” we

weigh three factors: “[1] the severity of the misconduct, [2] the measures adopted to cure the

misconduct, and [3] the certainty of conviction absent the misconduct.” Elias, 285 F.3d at 190.

Here, we conclude that the comments Greenberg identifies do not rise to the level of a due

process violation.

         First, as to the prosecutor’s references to Greenberg’s “lies,” we conclude that the

challenged conduct was in no way severely improper so as to amount to a denial of due process.

The Government’s repeated references to “‘lies’ Greenberg made in written communications

during the alleged fraud,” Greenberg Br. 49, fall within the broad latitude that prosecutors are

afforded during summation, and, in particular, are tailored, in this fraud prosecution, to the

circumstances of the case, given Greenberg’s contradictory explanations regarding the

unauthorized credit card charges. See, e.g., United States v. Peterson, 808 F.2d 969, 977 (2d

Cir. 1987) (noting that the use of the words “liar” or “lie” is not improper depending on context

and whether the use is excessive or inflammatory); United States v. Henry, 2015 WL 861743, at

*5 n.5 (E.D.N.Y. Feb. 27, 2015) (finding that government’s use of the term “lies” 55 times in

summation was not excessive or inflammatory “when viewed in context”).         We thus discern no

error in the prosecution’s references to Greenberg’s written communications.




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       Greenberg also raises the issue of the Government “describ[ing] defense counsel’s

opening statements to the jury as either ‘a lie’ or ‘a bunch of lies.’”             Greenberg Br. 49

(emphasis omitted).    The Government “[c]oncededly, in retrospect” admits that it “should have

chosen different language to make its meaning clearer.”         Gov’t Br. 52. In the broader context,

however, these remarks referred to the substance of what defense counsel represented in his

opening remarks regarding Greenberg’s position as to the source of the unauthorized charges,

and were not meant to suggest that counsel himself was responsible. Such remarks were not

sufficiently inflammatory to have plainly infected the entire trial proceedings — a point only

underscored by the fact that the defense failed to object at the time.

       Greenberg next argues that the Government improperly “attempted to bolster the

credibility [of the] [G]overnment’s witnesses by comparing their testimony with Greenberg’s

constitutionally-protected decision not to testify at trial.”   Greenberg Br. 50.    He contends that

the Government made what “amount[ed] to a direct comment on Mr. Greenberg’s failure to

testify at trial.” Id. at 52.   It is difficult, however, to understand how Greenberg makes this

logical leap. Greenberg claims that the Government implied that he lied by saying that its

witnesses should be believed because they withstood cross-examination.           But the record does

not support this implication.     The Government was merely emphasizing the point that its

witnesses had ably withstood cross, which is not itself impermissible.        That Greenberg elected

not to testify is of no matter — that choice does not render the Government’s remarks severely

inappropriate.

       We note that the district court mitigated any possible prejudice from the prosecutor’s

remarks by instructing the jury on several points that are relevant to the conduct of which

Greenberg complains.      The district court explained to the jury that it had the sole role of



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determining the facts, App’x 616, and, critically, that statements of counsel are not evidence, id.

at 617.     It also explained the presumption of innocence, and specified to the jury that, under the

Constitution, Greenberg had “no obligation to testify or to present any other evidence because it

is the prosecution’s burden to prove the defendant’s guilt beyond a reasonable doubt.” Id. at

620.      The court reiterated the point, explaining to the jury that it could “not attach any

significance to the fact that the defendant, Daniel Greenberg, did not testify.” Id.    Further, “no

adverse inference against him” could be drawn “because he did not take the stand” and the jury

could “not consider this against the defendant in any way [during] deliberations in the jury

room.”      Id.   Thus, to the extent that there was any impropriety associated with the comments,

particularly in light of the strength of the evidence presented to the jury at Greenberg’s trial, the

district court took sufficient measures to cure it. See United States v. Modica, 663 F.2d 1173,

1181 (2d Cir. 1981) (“[I]f proof of guilt is strong, then the prejudicial effect of the comments

tends to be deemed insubstantial…”).           We conclude that the district court did not abuse its

discretion in denying Greenberg’s motion for a mistrial.

                                           *        *       *

          We have considered Greenberg’s remaining claims and find them to be without merit.

Accordingly, we AFFIRM the judgment of conviction of the district court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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