     08-5036-cr
     United States v. Herbin



                          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 Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 23 rd day of February, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               08-5036-cr
17
18       SAMUEL HERBIN,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       APPEARING FOR APPELLANT:               MARSHALL A. MINTZ, Mintz &
23                                              Oppenheim LLP, New York, New
24                                              York.
25
26       APPEARING FOR APPELLEE:                MICHAEL P. DRESCHER (Gregory L.
27                                              Waples, on the brief), United
28                                              States Attorney’s Office for the

                                                  1
 1                              District of Vermont, for
 2                              Tristram J. Coffin, United
 3                              States Attorney for the District
 4                              of Vermont, Burlington, Vermont.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the District of Vermont (Sessions, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Samuel Herbin appeals his conviction on the grounds
14   that (1) the district court erroneously admitted evidence of
15   his handwriting exemplars, and (2) the evidence was
16   insufficient to support his conviction for being a felon in
17   possession of a firearm. We assume the parties’ familiarity
18   with the underlying facts, the procedural history, and the
19   issues presented for review.
20
21   [1] Herbin argues that his handwriting exemplars were
22   inadmissible under Federal Rules of Evidence 401, 608(b),
23   404(b), and 403. “We review a trial court’s evidentiary
24   rulings for an abuse of discretion.” United States v.
25   McDermott, 245 F.3d 133, 140 (2d Cir. 2001). When the
26   specific evidentiary challenge raised on appeal was
27   preserved in the district court, we will vacate if a party’s
28   substantial rights are affected. See Fed. R. Evid. 103(a);
29   United States v. Dupre, 462 F.3d 131, 136 (2d Cir. 2006);
30   see also Jacquin v. Stenzil, 886 F.2d 506, 508 (2d Cir.
31   1989). When it was not, our review is for plain error. See
32   Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
33
34        Evidence is relevant if it has “any tendency to make
35   the existence of any fact that is of consequence to the
36   determination of the action more probable or less probable
37   than it would be without the evidence.” Fed. R. Evid. 401.
38   Here, the handwriting exemplars were relevant to Herbin’s
39   credibility as a testifying witness. Relevant evidence,
40   however, “may be excluded if its probative value is
41   substantially outweighed by the danger of unfair prejudice,
42   confusion of the issues, or misleading the jury, or by
43   considerations of undue delay, waste of time, or needless
44   presentation of cumulative evidence.” Fed. R. Evid. 403.
45   Because Herbin did not raise a Rule 403 objection in the
46   district court, our review is for plain error. The

                                  2
 1   handwriting exemplars were obviously prejudicial to Herbin.
 2   However, they were also relevant to Herbin’s credibility and
 3   the validity of Herbin’s innocent justification for leasing
 4   the apartment. We cannot find that the district court
 5   committed plain error in balancing these concerns.
 6
 7        Federal Rule of Evidence 404(b) provides that evidence
 8   of prior bad acts is inadmissible for propensity purposes
 9   but is admissible “for other purposes.” See also United
10   States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995). Before
11   404(b) evidence can be admitted, the government must, upon
12   request of the defendant, “provide reasonable notice in
13   advance of trial, or during trial if the court excuses
14   pretrial notice on good cause shown, of the general nature
15   of any such evidence it intends to introduce at trial.”
16   Fed. R. Evid. 404(b). Herbin did not raise a 404(b)
17   objection in the district court, and he has not demonstrated
18   plain error in this Court. The exemplars were relevant for
19   multiple non-propensity purposes, such as impeachment and
20   intent; moreover, Herbin has offered no argument as to why
21   any notice problem justifies vacatur under the plain error
22   standard.
23
24   [2] Herbin also contends that the evidence was insufficient
25   to support his conviction for being a felon in possession of
26   a firearm. See 18 U.S.C. § 922(g)(1). To obtain a
27   § 922(g)(1) conviction, the government must prove beyond a
28   reasonable doubt that: (1) the defendant has at least one
29   previous felony conviction; (2) the defendant knowingly
30   possessed the firearm; and (3) the firearm was in or
31   affected interstate commerce. United States v. White, 552
32   F.3d 240, 245 n.2 (2d Cir. 2009). Herbin argues that the
33   government presented insufficient evidence as to possession
34   and interstate commerce.
35
36        Herbin “bears a very heavy burden” in prevailing on
37   these arguments. See United States v. Crowley, 318 F.3d
38   401, 407 (2d Cir. 2003) (internal quotation marks omitted).
39   We must sustain the conviction if, “after viewing the
40   evidence in the light most favorable to the prosecution, any
41   rational trier of fact could have found the essential
42   elements of the crime beyond a reasonable doubt.” Jackson
43   v. Virginia, 443 U.S. 307, 319 (1979).
44
45        Possession. The government can establish possession by
46   proving either actual or constructive possession. United

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 1   States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002). Actual
 2   possession “requires the government to show defendant
 3   physically possessed the firearm.” Id. Here, the evidence
 4   of actual possession consisted principally of the seizure of
 5   a gun during a raid on Herbin’s residence and the testimony
 6   of a witness that she heard Herbin say that the police had
 7   seized his gun during the raid. This alone suffices. See
 8   United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006).
 9
10        Interstate Commerce. The government must show “[s]ome
11   nexus with commerce . . . although that need not be any more
12   than the minimal nexus that the firearm [has] been, at some
13   time, in interstate commerce.” United States v. Jones, 16
14   F.3d 487, 491 (2d Cir. 1994); see also Gaines, 295 F.3d at
15   302. “Testimony that a weapon was manufactured out of state
16   is generally sufficient to meet the interstate commerce
17   element.” Jones, 16 F.3d at 491 (internal quotation marks
18   omitted)521. Here, an ATF agent testified that the frame of
19   the gun at issue was manufactured in Nevada and then shipped
20   to California where it was assembled with other parts and
21   ultimately sold.
22
23        Finding no merit in Herbin’s remaining arguments, we
24   hereby AFFIRM the judgment of the district court.
25
26
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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