    17-1589-cr
    United States of America v. Oreckinto
                                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 ASUMMARY 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 29th day of May, two thousand nineteen.

    PRESENT:
                ROSEMARY S. POOLER,
                RAYMOND J. LOHIER, JR.,
                RICHARD J. SULLIVAN,*
                      Circuit Judges.
    _____________________________________

    United States of America,
                        Appellee,

                       v.                                                       17-1589-cr

    Andrew Oreckinto,
                      Defendant-Appellant.
    ___________________________________

    FOR APPELLEE:                                        MICHAEL J. GUSTAFSON, Asst. U.S.
                                                         Atty., New Haven, CT (Marc H. Silverman,
                                                         Asst. U.S. Atty., New Haven, CT, on the
                                                         brief), for John H. Durham, U.S. Atty. for the
                                                         District of Connecticut.
    FOR DEFENDANT-APPELLANT:                             TRACY HAYES, Asst. Federal Defender,
                                                         for Terence S. Ward, Federal Defender for
                                                         the District of Connecticut, New Haven, CT.


    * Judge Richard J. Sullivan was a District Judge of the United States District Court for the
    Southern District of New York, sitting by designation, at the time this case was heard.
       Appeal from a judgment of the United States District Court for the District of Connecticut

(Meyer, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Andrew Oreckinto appeals from the May 15, 2017 judgment of the

United States District Court for the District of Connecticut convicting him, following a jury trial,

of theft from an interstate shipment of cigarettes in violation of 18 U.S.C. § 659. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

presented for review.

       Defendant raises two claims on appeal: (1) that the government did not present sufficient

evidence to prove that he stole an “interstate shipment” under Section 659, and (2) that the

government made improper statements and displayed inflammatory and prejudicial images to the

jury during summation. We address each claim in turn.

       I.      Sufficiency of the Evidence

       We evaluate challenges to the sufficiency of the evidence de novo. See United States v.

Soler, 759 F.3d 226, 229 (2d Cir. 2014). “In so doing, we view the evidence presented in the light

most favorable to the government, and we draw all reasonable inferences in its favor.” United

States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008) (quoting United States v. Autuori, 212 F.3d 105,

114 (2d Cir. 2000)). Accordingly, we do not disturb a jury’s verdict unless “the evidence that the

defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could

find guilt beyond a reasonable doubt.” United States v. Cuti, 720 F.3d 453, 461 (2d Cir. 2013)

(quoting United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004)).

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       Drawing all reasonable inferences in the government’s favor, we conclude that the

government presented sufficient evidence at trial to prove the following facts.

       On March 19, 2011, Defendant broke into the New Britain Candy Company (“NBCC”)

warehouse located in Wethersfield, Connecticut, and stole approximately 8,000 cartons of

cigarettes worth nearly $300,000. NBCC is wholly owned and operated by General Equities Inc.,

which also operates a chain of convenience stores along the East Coast called Food Bag. NBCC

is the “Food Bag fulfillment center” – that is, it “supplies all the products that you see in Food

Bag[]” stores, including cigarettes, candy, and other grocery items. Gov’t App’x at 106–08. As

of February 2017, there were 51 Food Bag locations: 35 in Connecticut, five in New York, five in

Massachusetts, three in Florida, two in New Jersey, and one in Pennsylvania. NBCC supplies

products to the Connecticut, New York, Massachusetts, and New Jersey Food Bag stores, but not

the Florida or Pennsylvania Food Bag stores.

       NBCC does not manufacture any of its own cigarettes but rather purchases them from two

“major vendors” – Philip Morris and R.J. Reynolds – located in “the Virginia/North Carolina area.”

Id. at 109. When a shipment of cigarettes is delivered to NBCC, NBCC opens the shipment, cuts

the 60-carton cases in half, and moves them to the mezzanine of the warehouse, where they are

placed “in what’s called a slot, which is basically a roll rack that a picker can pick the cigarette

from for a specific order.” Id. at 111. The cartons then remain in storage until they are ready for

shipment to one of the Food Bag stores. No cigarettes are sold directly to consumers at the NBCC

warehouse.

       When a Food Bag store places a specific order, the order is transferred to NBCC’s

mainframe computer, which generates a “pick list” – a list that NBCC workers use to “actually pick

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the product that’s being shipped.” Id. at 169. After the cigarettes are picked out, NBCC applies

tax stamps to each carton, sends them out to NBCC’s delivery trucks, and creates an invoice for

each order. Individual Food Bag stores are ultimately billed for each shipment. NBCC turns over

its entire stock of cigarettes approximately once every week and a half.

       Defendant argues that the evidence compelled a finding that the interstate shipment of

cigarettes from the Virginia and North Carolina manufacturers to the NBCC warehouse in

Connecticut terminated when NBCC took custody of the cigarettes. We disagree.

       In reviewing Defendant’s evidentiary challenge, we begin by considering the relevant

statutory text. See, e.g., United States v. Carter, 801 F.2d 78, 81–82 (2d Cir. 1986). Contrary to

Defendant’s argument, the text and purpose of Section 659 strongly suggest that a shipment retains

its interstate character even after it is moved from a truck to a temporary storage facility. First,

Congress specifically included “warehouse[s]” and “storage facilit[ies]” in Section 659’s list of

entities from which “goods or chattels . . . which constitute an interstate or foreign shipment of

freight, express, or other property” could be stolen. 18 U.S.C. § 659. Furthermore, we have

repeatedly recognized that Congress enacted Section 659 “to protect and promote the flow of goods

in interstate commerce,” United States v. Berger, 338 F.2d 485, 487 (2d Cir. 1964), “and that the

carrying out of this purpose is not to be hampered by technical legal conceptions,” United States v.

Astolas, 487 F.2d 275, 279 (2d Cir. 1973); see also United States v. Bryser, 954 F.2d 79, 86 (2d

Cir. 1992) (“We have long disagreed with crabbed interpretations of this statute.”). Thus, “the

determination that a shipment is interstate is essentially a practical one based on common sense and

administered on an ad hoc basis.” Astolas, 487 F.2d at 279.



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       Undertaking this practical determination here in light of Section 659’s text and purpose –

and drawing all reasonable inferences in the government’s favor – we conclude that there was

sufficient evidence for a jury to find that Defendant stole the cigarettes while they were temporarily

stored at the NBCC warehouse, and that the stolen cigarettes remained on an interstate journey from

the North Carolina and Virginia cigarette manufacturers to the individual Food Bag stores located

in Connecticut, New York, Massachusetts, and New Jersey. The evidence presented at trial, and

outlined above, amply supports this finding.2 In arguing otherwise, Defendant relies upon the

clause in Section 659 that provides that “the waybill or other shipping document of such shipment

shall be prima facie evidence of the place from which and to which such shipment was made.” 18

U.S.C. § 659. However, while the shipping documents at issue here could certainly have been

used as prima facie evidence that the NBCC warehouse was the cigarette shipment’s final

destination, such prima facie evidence can still be contradicted. See, e.g., Prima Facie Evidence,

Black’s Law Dictionary (10th ed. 2014) (defining “prima facie evidence” as “[e]vidence that will

establish a fact . . . unless contradictory evidence is produced”). Here, the government contradicted

the prima facie evidence by presenting evidence of NBCC’s role as a temporary storage point

between the manufacturers and the individual Food Bag convenience stores. In sum, a reasonable

jury could have found that – bills of lading notwithstanding – the interstate shipment of cigarettes

had not yet terminated upon its arrival at the NBCC warehouse.


2
  The district court held that “the interstate shipment requirement of § 659 may be satisfied on the
basis of evidence concerning the routine and normal practices of a business to ship all or a
significant portion of its inventory to out-of-state locations.” Appellant Add. at 10. Because we
conclude that the cigarettes at issue were part of a broader interstate shipment originating at the
cigarette manufacturers in North Carolina and Virginia, pausing at the NBCC warehouse in
Connecticut, and concluding at the individual retail stores where they were to be sold, we need not
decide whether the district court erred in its broader statutory holding.
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       Our conclusion is not altered by the fact that it was NBCC – not the individual Food Bag

stores – that placed the purchase orders for the cigarettes from the North Carolina and Virginia

manufacturers. Even though NBCC technically “owned” the cigarettes at the time of the burglary,

the evidence demonstrated that such ownership was transitory. To repeat, NBCC took ownership

of the cigarettes solely for the purpose of storing them before transporting them to the Food Bag

locations in Connecticut, New York, Massachusetts, and New Jersey. As our sister circuits have

explained, a middleman buyer’s intent to reship goods can render those goods an “interstate

shipment” while in the middleman’s possession and until they reach their final destination. See,

e.g., United States v. Skoczen, 405 F.3d 537, 544–45 (7th Cir. 2005) (holding that shipments

remained interstate while being stored by the United States Customs Service even though the

Customs Service was a cosigner on the bill of lading); United States v. Williams, 559 F.2d 1243,

1248 (4th Cir. 1977) (holding that a gasoline shipment remained interstate while it was in a “storage

facility for a short period of time prior to its delivery to local distributors”); cf. United States v.

Garber, 626 F.2d 1144, 1152 (3d Cir. 1980) (holding that shipments from Chile to Connecticut had

not reached their “final destination,” and thus were still “foreign” for purposes of Section 659, while

paused in Philadelphia, in light of the shipper’s “active pursuit” of alternative purchasers).

       Accordingly, on the record here, there was sufficient evidence to support the jury’s finding

that Defendant stole an interstate shipment of cigarettes in violation of 18 U.S.C. § 659.

       II.     Prosecutorial Misconduct

       Defendant also challenges his conviction on the grounds that the government made

improper statements and displayed inflammatory images to the jury during its summation.

Specifically, Defendant argues (1) that the prosecutor misstated the law in summation when

                                                  6
asserting that the theft “affected interstate commerce” and that “the interstate piece of the case”

could be satisfied if the theft interfered with future shipments, Appellant Br. at 39 (quoting Gov’t

App’x at 755, 808); (2) that, also during summation, the prosecutor improperly showed the jury an

image of the Defendant framed as their target, as well as an image of the Defendant with the caption

“Guilty,” Appellant Br. at 41; Doc. No. 21-1 at 5–6; and (3) that such errors substantially prejudiced

him. We review these claims de novo, see United States v. Daugerdas, 837 F.3d 212, 227 (2d Cir.

2016), and find no prejudicial error.

       A    defendant      who   “seeks    to   overturn    his   conviction    based   on     alleged

prosecutorial misconduct in summation bears a ‘heavy burden.’” United States v. Farhane, 634

F.3d 127, 167 (2d Cir. 2011) (quoting United States v. Feliciano, 223 F.3d 102, 123 (2d Cir. 2000)).

       The defendant must show not simply that a particular summation comment
       was improper, but that the comment, viewed against the entire argument to the jury,
       and in the context of the entire trial, was so severe and significant as to have
       substantially prejudiced him . . . such that the resulting conviction was a denial of
       due process.

United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012) (internal quotation marks, alterations, and

citations omitted). Further, because Defendant did not object to the prosecutor’s statements during

summation, we may not grant a new trial based on such statements “absent flagrant abuse.” United

States v. Sheehan, 838 F.3d 109, 128 (2d Cir. 2016) (quoting United States v. Zichettello, 208 F.3d

72, 103 (2d Cir. 2000)).

       The prosecutor’s statements during summation fell well short of flagrant abuse. Even if

the prosecutor misstated the law on one occasion by referencing “interstate commerce” as a proxy

for the “interstate shipment” element, the prosecutor also repeatedly and properly instructed the

jury that it had to find the existence of an interstate shipment. Further, the prosecutor presented a

                                                  7
proper interstate shipment theory to the jury, namely, that the cigarettes were still on an interstate

journey from the manufacturers to the individual Food Bag stores when they were stolen from the

warehouse. Thus, even if the prosecutor also referenced an erroneous interstate shipment theory,

when “viewed against the entire argument to the jury, and in the context of the entire trial,”

Williams, 690 F.3d at 75 (internal quotation marks omitted), the prosecutor’s conduct did not result

in substantial prejudice or amount to a flagrant abuse.

       With respect to the slides that the prosecutor showed to the jury during summation, we find

no error, let alone prejudicial error. The slides at issue were not unduly provocative, nor did they

suggest that the jury should find Defendant guilty simply because the prosecutor said so.

Moreover, the district court specifically and correctly instructed the jury that it was “appropriate

for any party . . . to use this kind of demonstrative exhibit in connection with their closing

arguments,” and that the slideshow was “not evidence itself.” Gov’t App’x at 749; see United

States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir. 1990) (“In summation counsel are free to make

arguments which may be reasonably inferred from the evidence presented.”); see also, e.g., United

States v. Ruiz, 710 F.3d 1077, 1082–84 (9th Cir. 2013) (holding that the prosecutor’s use of a

PowerPoint presentation during summation to argue that the defendant was guilty did not result in

substantial prejudice). Thus, even if the prosecutor’s use of the slides was improper, any error did

not substantially prejudice Defendant.

       We find that Defendant’s remaining arguments are without merit.              Accordingly, we

AFFIRM the judgment of conviction entered by the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court


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