13-1956(L)
United States v. Gallagher

                                  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 27th
day of August, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                         Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                    Appellee,

                             v.                                      Nos. 13-1956(L)
                                                                          13-2661(Con)
DANIEL GALLAGHER,

            Defendant-Appellant.
_____________________________________

FOR DANIEL GALLAGHER:                                 Leonard Lato, Hauppauge, NY.

FOR UNITED STATES OF AMERICA:                         Amy Busa, Shannon C. Jones, Assistant
                                                      United States Attorneys, for Loretta E. Lynch,
                                                      United States Attorney for the Eastern
                                                      District of New York, Brooklyn, NY.

        Appeal from an amended judgment of conviction, entered July 10, 2013, of the United States
District Court for the Eastern District of New York (Leonard D. Wexler, Judge).
      UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of conviction of the District Court is
AFFIRMED and the cause is REMANDED for the limited purpose of correcting an error in the
judgment.

          Defendant Daniel Gallagher appeals from an amended judgment convicting him, after a jury
trial, of one count of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, and two counts of
wire fraud, in violation of 18 U.S.C. § 1343, and sentencing him principally to 31 months’
imprisonment and three years’ supervised release.1 Gallagher appeals his conviction only. We
assume the parties’ familiarity with the underlying facts and the procedural history of the case, to
which we refer only as necessary to explain our decision.

         Gallagher contends on appeal that the government intentionally engaged in serious
misconduct throughout the proceedings that, when viewed cumulatively, deprived him of a fair trial.
In particular, he maintains that the following conduct during the trial by the government constitutes
reversible error: (1) the use of so-called “guilt-assuming hypotheticals”; (2) references to Gallagher’s
arrest and incarceration; (3) questions to a witness about the witness’s state of mind; (4) the decision
to call a particular witness; and (5) the injection of personal beliefs into the case during summation.
Gallagher also contends that the timing of the government’s pre-trial disclosures and certain
arguments made during sentencing further evince that the government’s purported misconduct was
intentional.

        To secure vacatur and a new trial on the basis of prosecutorial misconduct, Gallagher bears a
“heavy burden” because he must show not only that the government’s actions were objectionable,
but that they were so serious as to permeate the entire trial and deny him due process. See, e.g.,
United States v. Williams, 690 F.3d 70, 74-75 (2d Cir. 2012). We consider the following factors in
evaluating such a claim: “(1) the severity of the alleged misconduct; (2) the curative measures taken;
and (3) the likelihood of conviction absent any misconduct.” United States v. Locascio, 6 F.3d 924,
945-46 (2d Cir. 1993).

         After examining those portions of the record that Gallagher claims were improper, we
conclude that he has not made the requisite showing. Nearly all the purported conduct upon which
he relies was not in fact erroneous, and, to the extent that the government arguably committed any
misconduct, it did not cause Gallagher substantial prejudice. The evidence of his guilt was strong,
and curative measures were taken by the District Court when necessary. See Shih Wei Su v. Filion, 335
F.3d 119, 126-27 (2d Cir. 2003) (“[E]ven when a prosecutor elicits testimony he or she knows or
should know to be false, or allows such testimony to go uncorrected, a showing of prejudice is
required.”).
         1 The July 10, 2013 amended judgment of conviction entered by the District Court mistakenly reflects the
imposition of a five-year term of supervised release on the wire fraud counts rather than the statutory maximum three-
year term. Accordingly, we remand the cause for the limited purpose of correcting this error.
                                                           2
        We have considered all of the arguments raised by Gallagher on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s July 10, 2013
judgment of conviction and REMAND the cause for the limited purpose of correcting an error in
the judgment.2


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




       2   See note 1, ante.
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