     09-1650-cr
     United States v. Cook


                          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 21 st day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOHN M. WALKER, JR.,
10                              Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               09-1650-cr
18
19       SCOTT MICHAEL COOK,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       APPEARING FOR APPELLANT:               CHRISTOPHER S. CIACCIO,
24                                              Rochester, New York.
25
26       APPEARING FOR APPELLEE:                TIFFANY H. LEE, United States
27                                              Attorney’s Office for the
28                                              Western District of New York,

                                                  1
 1                              Rochester, New York, for
 2                              Kathleen M. Mehltretter, United
 3                              States Attorney for the Western
 4                              District of New York, Rochester,
 5                              New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Western District of New York (Siragusa, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14         Defendant-appellant Scott Cook was convicted of
15   producing and possessing child pornography. He appeals his
16   conviction and his sentence. We assume the parties’
17   familiarity with the underlying facts, the procedural
18   history, and the issues presented for review.
19
20   [1] Cook first argues that his trial counsel’s motion for
21   withdrawal should have been granted either because of an
22   ongoing fee dispute or, alternatively, because of a
23   perceived threat that Cook’s lawyer might have had to
24   testify at trial. Reviewing this claim de novo, United
25   States v. Feyrer, 333 F.3d 110, 115 (2d Cir. 2003), we find
26   no error. As to the fee dispute, withdrawal is generally
27   not warranted on that basis, see United States v. O’Neil,
28   118 F.3d 65, 71 (2d Cir. 1997); instead, if a lawyer’s
29   performance suffers on account of a fee dispute, the
30   appropriate remedy is to invoke ineffective assistance of
31   counsel, see Tueros v. Greiner, 343 F.3d 587, 594 (2d Cir.
32   2003). As to whether withdrawal was warranted by a risk
33   that counsel would be required to testify, there was no such
34   risk: The statement at issue was inadmissible hearsay, the
35   government’s offered stipulation would have mooted any need
36   for the testimony, and the victim (whose statement
37   ambiguously presented the issue) intended to testify in a
38   way that would have fully negated any need for the lawyer’s
39   testimony.
40
41   [2] Cook next argues that the district court erroneously
42   admitted into evidence certain photographs and testimony
43   showing that Cook engaged in sexual contact with Ashley,
44   sometimes after giving her alcohol. Our review is for abuse
45   of discretion, United States v. Wexler, 522 F.3d 194, 201-02
46   (2d Cir. 2008), and “reversal is warranted only if an error
47   affects a substantial right--that is, if the error had a

                                  2
 1   substantial and injurious effect or influence on the jury’s
 2   verdict,” United States v. Rigas, 490 F.3d 208, 222 (2d Cir.
 3   2007) (internal quotation marks and citations omitted).
 4   Here, any error did not affect Cook’s substantial rights,
 5   because a lot of other inculpatory evidence was introduced
 6   at trial. Specifically, Cook twice admitted to taking
 7   sexually explicit photographs of Ashley; Ashley testified
 8   that Cook took naked pictures of her; and several sexually
 9   explicit photographs of Ashley were seized from Cook’s
10   computer. Vacatur is therefore unwarranted, regardless of
11   whether the district court erred in admitting the challenged
12   evidence.
13
14   [3] Cook argues that his sentence was [i] procedurally
15   unreasonable because two sentencing enhancements were
16   improperly applied, and [ii] substantively unreasonable
17   because it was unduly harsh. We review the district court’s
18   factual findings for clear error and legal conclusions de
19   novo. United States v. Lewis, 386 F.3d 475, 479 (2d Cir.
20   2004).
21
22        Cook’s sentence was procedurally reasonable. The
23   imposition of the four-level enhancement provided for in
24   § 2G2.1(b)(2)(B) of the Sentencing Guidelines was supported
25   by evidence that Cook committed a sexual act on Ashley, and
26   Cook does not argue that the other prerequisite of the
27   Guideline was not satisfied. Similarly, the five-level
28   enhancement pursuant to § 2G2.2(b)(5) was supported by the
29   evidence adduced at trial showing that Cook touched Ashley
30   in sexually explicit ways on multiple occasions.
31
32        Cook’s argument as to the substantive reasonableness of
33   his sentence, which consists only of the assertion that the
34   sentence imposed was “unduly harsh and severe,” is
35   considered forfeited. Tolbert v. Queens Coll., 242 F.3d 58,
36   75 (2d Cir. 2001).
37
38        Finding no merit in Cook’s remaining arguments, we
39   hereby AFFIRM the judgment of the district court.
40
41
42                              FOR THE COURT:
43                              CATHERINE O’HAGAN WOLFE, CLERK
44




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