13-3932(L)
United States v. Scott

                              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 17th day of December, two thousand fifteen.

PRESENT:          JOSÉ A. CABRANES,
                  BARRINGTON D. PARKER,
                  RAYMOND J. LOHIER, JR.,
                               Circuit Judges.


UNITED STATES OF AMERICA,

                         Appellee,                        Nos. 13-3932(L), 13-4434(CON)

                         v.

EVERETTE L. SCOTT, JR., TYRONE L. GILLIAMS, JR.,

                         Defendants-Appellants.



FOR EVERETTE L. SCOTT, JR.:                           Steven G. Brill, Sullivan & Brill, LLP,
                                                      New York, NY.

FOR TYRONE L. GILLIAMS, JR.:                          William R. Hamilton,
                                                      Philadelphia, PA.

FOR UNITED STATES OF AMERICA:                         Michael A. Levy, Assistant United States
                                                      Attorney, for Preet Bharara, United States
                                                      Attorney for the Southern District of New
                                                      York, New York, NY.

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       Appeal from judgments of the United States District Court for the Southern District of New
York (Deborah A. Batts, Judge).

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

        Following a jury trial, defendants-appellants Everette L. Scott, Jr. (“Scott”) and Tyrone L.
Gilliams, Jr. (“Gilliams”) were each convicted of one count of securities fraud, in violation of 15
U.S.C. §§ 78ff and 78j(b), and two counts of wire fraud, in violation of 18 U.S.C. § 1343, arising
from schemes to steal investor funds—one involving a purported investment in a Utah coal mine
venture and one involving trading in U.S. Treasury Strips. Scott was sentenced principally to 30
months’ imprisonment for each count, to run concurrently; and Gilliams was sentenced principally
to 120 months’ imprisonment for each count, also to run concurrently. The District Court entered
judgment against Scott on October 16, 2013, and against Gilliams on November 18, 2013. This
consolidated appeal followed.

        On appeal, Scott argues, inter alia, that (1) the District Court abused its discretion by denying
his motion to sever the defendants’ trials; (2) the Court abused its discretion by admitting irrelevant
and unduly prejudicial evidence that he purchased a used Porsche the day after the defendants
received investor funds in escrow; and (3) he received ineffective assistance of counsel prior to, and
during, his trial.1 Gilliams argues, inter alia, that (1) the government withheld evidence from him in
violation of Brady v. Maryland; and (2) the government violated his Sixth Amendment confrontation
rights during trial. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal. For the reasons set forth below, each of the defendants-
appellants’ arguments is without merit.

                                   A.       Defendant-Appellant Scott

       First, Scott contends that the District Court’s denial of his pretrial motion to sever was an
abuse of discretion because his and codefendant Gilliams’s anticipated defenses were antagonistic to
each other, and because Scott would, and did, suffer “spillover prejudice” from the evidence
introduced against Gilliams.

         Federal Rule of Criminal Procedure 14(a) permits district courts to “sever the defendants’
trials, or provide any other relief that justice requires” if the joinder of defendants for trial “appears


    1Scott filed a counseled brief (by Steven G. Brill) on March 12, 2014, and filed a supplemental pro se brief
on June 5, 2015, which reiterated and expanded upon the claims in his counseled brief and raised a litany of
new arguments. At the time of submission, counsel for both Scott and Gilliams had withdrawn from the case,
and both defendants were therefore proceeding pro se.


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to prejudice a defendant or the government.” Fed. R. Crim. P. 14(a). See also Zafiro v. United States,
506 U.S. 534, 540 (1993). But “[t]he decision to grant or deny severance is ‘committed to the sound
discretion of the trial judge,’” and “[i]n order to overturn a district court’s denial of a severance
motion, we must conclude that the joint trial resulted in ‘substantial prejudice’ to the appellant.”
United States v. Spinelli, 352 F.3d 48, 54 (2d Cir. 2003) (quoting United States v. Blount, 291 F.3d 201,
209 (2d Cir. 2002) and United States v. Stirling, 571 F.2d 708, 733 (2d Cir. 1978)). “It is not enough to
demonstrate that separate trials would have increased the chances of the appellant’s acquittal,” and
the defendant must instead “show prejudice so severe that his conviction constituted a miscarriage
of justice” and “amount[ed] to a denial of a constitutionally fair trial.” Id. at 54–55 (internal
quotation marks omitted).

        We conclude that the District Court’s denial of severance did not result in substantial
prejudice that deprived Scott of a constitutionally fair trial and therefore was not an abuse of
discretion. Scott’s contention that the anticipated defenses—that Gilliams lacked intent to defraud
because he had relied on Scott’s legal advice, while Scott lacked intent to defraud because he had
unwittingly acted upon Gilliams’s instructions—were mutually antagonistic, rather than mere
“finger-pointing,” is unconvincing. See United States v. Yousef, 327 F.3d 56, 151 (2d Cir. 2003)
(“Defenses are mutually antagonistic when accepting one defense requires that ‘the jury must of
necessity convict a second defendant.’” (quoting United States v. Cardascia, 951 F.2d 474, 484 (2d Cir.
1991))); United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990) (“The mere fact that codefendants
seek to place the blame on each other is not the sort of antagonism that requires a severance.”
(internal quotation marks omitted)). A jury could have accepted both anticipated defenses, finding
that neither Scott nor Gilliams had intent to defraud under the circumstances. And even if the
defenses were mutually antagonistic, such defenses “are not prejudicial per se,” Zafiro, 506 U.S. at 538,
and Scott failed to demonstrate that he was prejudiced as a result of the joint trial, let alone denied a
constitutionally fair trial. Indeed, at trial, Gilliams did not even advance the advice-of-counsel
defense contemplated in Scott’s motion to sever.

         Scott’s argument that severance was necessary to avoid “spillover prejudice” is equally
unavailing. Even if, as Scott insists, he had a limited role in the alleged fraud schemes compared to
Gilliams, and most of the evidence introduced at trial related only to Gilliams, “differing levels of
culpability and proof . . . standing alone, are insufficient grounds for separate trials.” Spinelli, 352
F.3d at 55 (alteration and internal quotation marks omitted). And the District Court reduced the
potential for prejudice by instructing the jury to “bear in mind that guilt is individual,” and that the
“verdict of guilty or not guilty must be based solely upon the evidence—or lack of evidence—
against each defendant.” A-1183; see also Zafiro, 506 U.S. at 540–41; United States v. Page, 657 F.3d 126,
129 (2d Cir. 2011) (“[L]ess drastic measures than severance, such as limiting instructions, often will
suffice to cure any risk of prejudice and permit joinder.” (internal quotation marks and brackets
omitted)).



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         Second, Scott contends that the District Court abused its discretion by admitting evidence at
trial that Scott purchased a used Porsche the day after receiving investor funds in escrow, which
Scott argues was irrelevant and prejudicial. “We review a district court’s evidentiary rulings
deferentially, mindful of its superior position to assess relevancy and to weigh the probative value of
evidence against its potential for unfair prejudice,” United States v. Abu-Jihaad, 630 F.3d 102, 131 (2d
Cir. 2010), and “we will not overturn the district court’s decision to admit or reject evidence absent
an abuse of discretion,” United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010).

        We conclude that the District Court did not abuse its discretion by admitting evidence of
Scott’s Porsche purchase. The Court appropriately concluded that the purchase was relevant under
Federal Rule of Evidence 401 because of its temporal proximity to the receipt of investor funds. A-
475. For instance, the purchase arguably suggested that Scott had lied in his letter to Morfopoulos
when he stated that he would send Gilliams the “entire amount” of the $4 million received from
Morfopoulos “for purposes of placing into trade,” when in reality, according to the government,
Scott diverted at least $40,000 of the funds toward the purchase of the car just one day later.
Assuming that Scott also objected under Rule 403, which is not clear from the record, see A-473–75,
we conclude that the Court appropriately admitted evidence of the purchase because its probative
value, as discussed by the Court, A-475, was not substantially outweighed by the danger of unfair
prejudice. The purported prejudice cited by Scott—that the jury viewed the defendants as a “single
unit” that stole money to support extravagant lifestyles—was also minimized by the Court’s jury
instruction emphasizing the individualized nature of guilt. See A-1183.

       Third, Scott contends, in his supplemental pro se brief, that he was denied his Sixth
Amendment right to effective assistance of counsel because the District Court inappropriately
denied his request to substitute appointed counsel prior to trial, and because his appointed counsel
was ineffective throughout the proceeding.

        “To determine whether the trial court abused its discretion [by denying a defendant’s request
to substitute counsel], we consider: (1) the timeliness of defendant’s request for new counsel; (2) the
adequacy of the trial court’s inquiry into the matter; (3) whether the conflict resulted in a total lack
of communication between the defendant and his attorney; and (4) whether the defendant’s own
conduct contributed to the communication breakdown.” United States v. Carreto, 583 F.3d 152, 158
(2d Cir. 2009).

         Applying these factors here, we conclude that the District Court’s denial of Scott’s request to
substitute counsel was not an abuse of discretion. Scott moved to substitute counsel—appointed
more than eleven months earlier—with new counsel less than three weeks before trial, and
requested a continuance that would have delayed the start of the trial. Although the Court denied
the motion without first conducting a hearing or otherwise inquiring into Scott’s complaints, the
Court nonetheless inquired just before the start of trial about the only “substantial” complaint Scott
raised in his ex parte letter to the Court, cf. United States v. Hsu, 669 F.3d 112, 123 (2d Cir. 2012)

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(concluding that mere expression of dissatisfaction with counsel’s trial performance is not a
“substantial complaint”); McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981) (concluding that counsel’s
“pessimistic forecast does not rise to the level of good cause for substitution of counsel” because
“[t]he starting point for good representation is a realistic assessment of the prospects of success”),
which was that Scott’s appointed counsel had “misrepresented . . . [a] plea offer” to Scott. The Court
confirmed that Scott’s counsel had in fact accurately conveyed all plea discussions and offers to him.
Thus, to the extent the timing or format of the Court’s inquiry rendered it inadequate, any error
would have been harmless under the circumstances. Cf. United States v. John Doe No. 1, 272 F.3d 116,
123 (2d Cir. 2001) (“[I]f the reasons proffered [for the proposed substitution] are insubstantial and
the defendant receives competent representation from counsel, a court’s failure to inquire
sufficiently or to inquire at all constitutes harmless error.”). Also, there was not “a total lack of
communication” or a “communication breakdown” between Scott and his counsel, see A-57, 65–66,
even if Scott would have preferred more in-person meetings with counsel. Further, Scott’s counsel
had previously notified the Court that he would be prepared for trial, see Scott Supp. Br. Ex. F, and
then represented Scott through trial and sentencing and also in filing his opening brief in the instant
appeal. The Court’s refusal to grant the motion to substitute counsel therefore was not an abuse of
discretion under the factors articulated in Carreto.

         We decline, however, to rule on Scott’s ineffective-assistance-of-counsel claim at this time.
“[T]his court has expressed a baseline aversion to resolving ineffectiveness claims on direct review,”
United States v. Lee, 549 F.3d 84, 95 (2d Cir. 2008) (internal quotation marks omitted), in part because
the district court “may take testimony from witnesses for the defendant and the prosecution and
from the counsel alleged to have rendered the deficient performance,” and is thus “the forum best
suited to developing the facts necessary to determining the adequacy of representation during an
entire trial,” Massaro v. United States, 538 U.S. 500, 505 (2003). See also Sparman v. Edwards, 154 F.3d
51, 52 (2d Cir. 1998). Although we have “entertained ineffective assistance claims for the first time
on direct appeal when their resolution is beyond any doubt or to do so would be in the interest of
justice,” United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (internal quotation marks omitted), we
decline to do so here. Should Scott so choose, he may seek relief under 28 U.S.C. § 2255, the
“preferable” mechanism “for deciding claims of ineffective assistance.” Massaro, 538 U.S. at 504.

                               B.      Defendant-Appellant Gilliams

        First, Gilliams contends that the government withheld Brady material from him. Under Brady
v. Maryland, 373 U.S. 83 (1963), the government has a duty to disclose evidence favorable to the
defendant when it is material to guilt or punishment. “There are three components of a Brady
violation: The material evidence ‘must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the state, either willfully or
inadvertently; and prejudice must have ensued.’” United States v. Madori, 419 F.3d 159, 169 (2d Cir.
2005) (quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). “For Brady purposes, information is


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material if there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Id. (internal citations and quotation marks
omitted); see also United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001) (“[M]aterial required to be
disclosed by Brady and Giglio is material, which, if not disclosed, creates a reasonable probability of
altering the outcome . . . .”).

         Here, even if the evidence cited by Gilliams had been suppressed by the government and the
evidence was favorable to Gilliams—neither of which is readily apparent—the evidence was not
material to Gilliams’s guilt or punishment. Gilliams argues that the affidavits of Parlin and Parlin’s
attorney, as well as certain e-mails and contracts, demonstrate that Gilliams “never dealt with”
Parlin, a victim and restitution recipient. Gilliams further argues that evidence suggesting that
Morfopoulos (who acted on behalf of Parlin) had been charged with crimes in Canada years before
the schemes constituted impeachment evidence under Giglio v. United States, 405 U.S. 150 (1972). But
we are unconvinced that any of this evidence had a reasonable probability of affecting the
proceeding if it had been turned over to him before the trial. That Gilliams never dealt directly with
Parlin does not mean Gilliams did not defraud Parlin or individuals entrusted with Parlin’s funds,
and the government did not seek to show at trial that Gilliams interacted directly with Parlin.
Likewise, the purported Morfopoulos impeachment evidence could have had little effect on the trial,
especially because no Morfopoulos testimony was introduced at trial. We therefore reject Gilliams’s
argument that the government violated Brady.

        Second, Gilliams contends that he was denied his Sixth Amendment confrontation right
because neither Parlin nor Morfopoulos testified during trial. “The Sixth Amendment’s
Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right
… to be confronted with the witnesses against him.’” Crawford v. Washington, 541 U.S. 36, 42 (2004).
Gilliams’s argument fails, however, because “[t]he Sixth Amendment safeguards the right of cross-
examination, but it does not require the calling of any particular witness,” United States v. Polisi, 416
F.2d 573, 579 (2d Cir. 1969), and Gilliams points to no testimonial statements by Parlin or
Morfopoulos introduced at trial that could have violated his confrontation rights, see Crawford, 541
U.S. at 68.

                                           CONCLUSION

        We have considered all of defendants-appellants’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the October 16, 2013, and November 18, 2013, judgments
of the District Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk



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