13-1266-cr
United States v. Mouallem

                                 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 19th
day of May, two thousand fourteen.

PRESENT:
            AMALYA L. KEARSE,
            CHESTER J. STRAUB,
            SUSAN L. CARNEY,
                          Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                            v.                                                        No. 13-1266-cr

ROBERT MOUALLEM,

                  Defendant-Appellant. *
_____________________________________

FOR APPELLEE:                                               PATRICK S. SINCLAIR (David C. James, on the
                                                            brief), Assistant U.S. Attorneys, for Loretta E.
                                                            Lynch, U.S. Attorney for the Eastern District
                                                            of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                    PETER J. TOMAO, ESQ., Garden City, NY.



          The Clerk of Court is directed to amend the official caption in this case to conform to the listing of
          *

the parties above.
        Appeal from the April 5, 2013 judgment of conviction entered in the United States District
Court for the Eastern District of New York (Jack B. Weinstein, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-Appellant Robert Mouallem appeals from a judgment of conviction, following a
jury trial, on one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; one
count of violating the Travel Act, 18 U.S.C. § 1952; and five counts of attempted securities fraud, in
violation of 18 U.S.C. §§ 1348 and 2. Mouallem was sentenced to a term of imprisonment of one
year and one day, a three-year term of supervised release, and a $700 special assessment. He was
also ordered to forfeit $26,610.

        On appeal, Mouallem challenges principally two of the District Court’s evidentiary rulings
and certain aspects of its jury instructions, as described below. We assume the parties’ familiarity
with the underlying facts and the procedural history of this case, to which we refer only as necessary
to explain our decision to affirm.

        A. Testimony Regarding the Brokerage Account

        Mouallem first argues that certain testimony regarding Exhibit 3500-JW-81 — a document
showing activity in a brokerage account that testimony established was held in his father’s name —
should have been precluded under both Fed. R. Crim. P. 16 (as a sanction for the government’s
alleged violation of its pre-trial evidentiary disclosure obligations), and Fed. R. Evid. 403 (because
the testimony’s probative value was substantially outweighed by unfair prejudicial effect). We are
not persuaded.

        To begin, to the extent there was any Rule 16 violation regarding Exhibit 3500-JW-8 or the
testimony surrounding it (and we detect none), the District Court adequately remedied the problem
by adjourning trial and granting Mouallem a continuance to gather whatever additional information
he thought necessary to present his defense to implications created by the testimony and admission
of the Exhibit. The District Court acted well within its broad discretion in addressing the alleged
Rule 16 violation in this way.

        1  In his opening brief, Mouallem appeared to challenge the admissibility of Exhibit 3500-JW-8 itself,
as well as the testimony about the exhibit. In his reply brief, however, Mouallem clarified his position: the
exhibit, standing alone, was unobjectionable, but testimony about the exhibit should have been precluded. See
Reply Br. 2-4.
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        Nor was there any abuse of discretion in the District Court’s balancing of applicable factors
under Rule 403 with regard to the admissibility of the testimony about Exhibit 3500-JW-8. “In
reviewing Rule 403 challenges, we accord great deference to the district court’s assessment of the
relevancy and unfair prejudice of proffered evidence, mindful that it sees the witnesses, the parties,
the jurors, and the attorneys, and is thus in a superior position to evaluate the likely impact of the
evidence.” United States v. Gupta, -- F.3d --, 2014 WL 1193411, at *18 (2d Cir. Mar. 25, 2014)
(internal quotation marks omitted). A district court’s decision to admit evidence following a Rule
403 analysis “is reversible error only when it is a clear abuse of discretion.” Id. (internal quotation
marks omitted). To find such abuse, “we must conclude that the challenged evidentiary rulings were
arbitrary and irrational.” Id. (internal quotation marks omitted). Upon due consideration here, we
find nothing arbitrary or irrational about the District Court’s evidentiary ruling.

        B. Admissibility of Recorded Conversation

        Mouallem next argues that Exhibit 56 — a recording of a meeting that Mouallem had with
cooperating witnesses — was admitted without sufficient foundation and in violation of his Sixth
Amendment right to confront witnesses testifying against him. We disagree.

        At trial, the government laid a proper foundation for authenticating the recording and
admitting it into evidence. Agent Kenney testified that he personally affixed a recording device to
cooperating witness Anthony Orlando shortly before Orlando’s meeting with Mouallem. Kenney
further testified that, after he affixed the recorder, he went to the location of the meeting and saw
Mouallem there. After watching Mouallem leave the location, Kenney removed the recorder from
Orlando’s person, and preserved the recording. Under our precedents, Agent Kenney’s testimony
— standing alone — is sufficient to authenticate the recording; there was no need for corroborating
testimony from Orlando himself. See, e.g., United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990)
(“[T]he government is not required to call as a witness a participant in a recorded conversation in
order to authenticate the recording; it may lay the foundation for the recording through the
testimony of the technician who actually made it.” (citing United States v. Fuentes, 563 F.2d 527, 532
(2d Cir. 1977)).

        Mouallem also argues that Exhibit 56 was admitted in violation of his confrontation rights
under the Sixth Amendment. Because Mouallem failed to raise this objection in the court below,
this claim is reviewed for plain error. An error is “plain” — and an appellate court has discretion to
correct it — only if “the error is clear or obvious, rather than subject to reasonable dispute”; the
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error “affected the appellant’s substantial rights, which in the ordinary case means it affected the
outcome of the district court proceedings”; and the error “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal
quotation marks and alteration omitted).

        In United States v. Paulino, 445 F.3d 211 (2d Cir. 2006), we observed that “[i]t has long been
the rule that so long as statements are not presented for the truth of the matter asserted, but only to
establish a context, the defendant’s Sixth Amendment rights are not transgressed.” Id. at 216
(internal quotation marks and alterations omitted); see also United States v. Stewart, 433 F.3d 273, 291
(2d Cir. 2006) (“Crawford [v. Washington, 541 U.S. 36 (2004),] expressly confirmed that the categorical
exclusion of out-of-court statements that were not subject to contemporaneous cross-examination
does not extend to evidence offered for purposes other than to establish the truth of the matter
asserted.”). Here, Mouallem has failed to identify any recorded statements of the cooperating
witnesses in Exhibit 56 that were offered for the truth of the matter asserted, rather than as context
for his own recorded statements. Under these circumstances, Mouallem cannot show that the
District Court’s error, if any, affected his substantial rights, and his claim of plain error must be
rejected.

        C. Jury Instructions

        Last, Mouallem argues that the District Court erroneously refused to give the jury a “missing
witness” instruction with respect to cooperating witnesses Philip and Anthony Orlando, neither of
whom testified at trial. Again, we find no error.

        Generally speaking, “[w]hen a party has it peculiarly within his power to produce witnesses
whose testimony would elucidate the transaction and fails to produce such witnesses, the jury may
infer that the testimony, if produced, would be unfavorable to that party.” United States v. Torres, 845
F.2d 1165, 1169 (2d Cir. 1988) (internal quotation marks omitted). The decision whether to give a
missing witness charge, however, is “committed to the ‘sound discretion’ of the trial judge, and will
not be disturbed absent an abuse of that discretion.” United States v. Nichols, 912 F.2d 598, 601 (2d
Cir. 1990).

        There was no abuse of discretion here. At the start of trial, the government made clear that
both cooperating witnesses were available to be called as witnesses, and the defense declined to do
so. Mouallem has made no showing that these witnesses were “peculiarly” within the government’s

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control, Torres, 845 F.2d at 1169, or that he otherwise lacked a fair opportunity to examine them.
Under these circumstances, the District Court was well within its discretion to conclude that a
missing witness charge was inapt.2

                                            CONCLUSION

        We have considered Mouallem’s other arguments on appeal and find them to be without
merit. Accordingly, the judgment of the District Court is AFFIRMED.

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




         2 Mouallem also contends that the District Court’s instruction regarding uncalled witnesses —

namely, that “[e]ach party has an equal opportunity to call individuals as witnesses and to produce any
evidence” — improperly shifted the burden of proof onto the defense. That argument borders on the
frivolous. In the sentence of the instruction that immediately follows the one Mouallem challenges, the
District Court emphasized that “the government has the burden of proof beyond a reasonable doubt” and “a
defendant has no burden.” There was nothing erroneous or misleading about the instructions, which we
evaluate in their totality.
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