    17-1668-cr
    United States v. Snyder

                         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 9th day of July, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             PETER W. HALL,
                                     Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    United States of America,
             Appellee,

                 -v.-                                          17-1668-cr

    Robert Snyder,
             Defendant-Appellant.
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    FOR APPELLANT:                         Daniel DeMaria, Esq., Merchant
                                           Law Group LLP, New York, NY.

    FOR APPELLEE:                          Grant C. Jaquith, United States
                                           Attorney for the Northern
                                           District of New York (Miroslav
                                           Lovric, Michael D. Gadarian,
                                           Assistant United States
                                           Attorneys, on the brief),
                                           Syracuse, NY.


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     Appeal from a judgment of the United States District
Court for the Northern District of New York (McAvoy, J.)

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED in part and REMANDED for the limited purpose of
imposing a restitution amount consistent with this order.

     Robert Snyder appeals from his judgment of conviction
in the United States District Court for the Northern
District of New York following trial on eight counts of
child pornography-related offenses under 18 U.S.C. § 2252A.
He argues the district court erred in denying his Federal
Rule of Criminal Procedure 33 motion for a new trial based
on a claimed violation of the Jencks Act, 18 U.S.C. § 3500
(“the Act”). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     The United States Postal Inspection Service (“USPIS”)
identified Snyder as a customer of Azov Films (“Azov”), a
Canadian production company specializing in so-called
naturalist and nudist movies featuring child pornography.
Investigators interviewed Snyder at his home, where he
admitted that he had purchased Azov materials through their
website and downloaded videos to his computer. A search of
Snyder’s residence uncovered DVDs with videos of nude
children, computer hard drives with pornographic images of
children, and an internet search history replete with terms
indicating an intent to access child pornographic content.
A grand jury returned an eight-count indictment charging
Snyder with violations of 18 U.S.C. § 2252A(a) and (b) for
accessing with intent to view, receive, and possess child
pornography.

     Snyder proceeded to trial, where USPIS Inspectors Bone
and Connelly testified on behalf of the prosecution
regarding the pornographic Azov materials ordered by
Snyder’s, among other topics. At various points during and
after the Inspectors’ testimony, defense counsel asked that
the Government produce Inspector Bone’s trial transcripts
and Inspector Connelly’s grand jury testimony in other
Azov-related cases. The district court denied the requests
from the bench as without “legal basis.” App’x at 283.
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Snyder was convicted on all counts, and he moved for a
judgment of acquittal and a new trial on the basis that the
government failed to comply with its Jencks Act
obligations. See Fed. R. Civ. P. 29 and 33. The district
court denied the motion, ruling that: (1) testimony from
other trials is not covered by the Act; and (2) even if the
Government should have produced Inspector Connelly’s grand
jury testimony, the missing material would not create a
“significant chance” of “instill[ing] a reasonable doubt in
a reasonable juror.” App’x at 467 (quoting United States
v. Jackson, 345 F.3d 59, 77 (2d Cir. 2003) (internal
citation omitted)).

     We review the denial of a motion for a new trial for
abuse of discretion. United States v. Robinson, 430 F.3d
537, 542 (2d Cir. 2005). Federal Rule of Criminal
Procedure 33(a) provides that “‘[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new
trial if the interest of justice so requires.’” United
States v. James, 712 F.3d 79, 107 (2d Cir. 2013) (quoting
Fed. R. Crim. P. 33(a)). A “district court ordinarily
should not grant a new trial unless it is convinced that
the jury has reached a seriously erroneous result or that
the verdict is a miscarriage of justice.” Smith v.
Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir.
1988); see United States v. Silver, 184 F. Supp. 3d 33, 52
(S.D.N.Y. 2016) (on Rule 33 motion, “the question is not
whether there was error in the evidentiary ruling, but
whether there is ‘manifest injustice’ and a real concern
that an innocent person may have been convicted”).

     The claimed injustice is the Government’s violation of
Section 3500. See generally Jencks v. United States, 353
U.S. 657 (1957). That statute provides, in relevant part:

    After a witness [is] called by the United States ...
    the court shall, on motion of the defendant, order the
    United States to produce any statement ... of the
    witness in the possession of the United States which
    relates to the subject matter as to which the witness
    has testified.

18 U.S.C. § 3500(b) (emphasis added). To trigger a
production obligation, a witness’s prior statement “must at
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least relate generally to the events and activities
testified to before the statement must be produced[;]”
statements which are “merely incidental or collateral” need
not be disclosed. United States v. Pacelli, 491 F.2d 1108,
1118 (2d Cir. 1974) (internal quotation marks omitted);
United States v. Birnbaum, 337 F.2d 490, 497 (2d Cir.
1964). Statements on the same general subject matter do
not “relate” unless they deal with the specific “events and
activities testified to on direct examination.” United
States v. Cardillo, 316 F.2d 606, 615 (2d Cir. 1963); see
also United States v. Mayersohn, 413 F.2d 641, 643 (2d Cir.
1969) (denying a Jencks Act request for production of
statements that do not specifically relate to a witness’
direct testimony).

     Where, as here, the district court denies a motion to
produce material sought by the defense under the Act, the
material is preserved and made available to the appellate
court so the appellate court may determine if the trial
court’s ruling was sound. 18 U.S.C. § 3500(c); Cardillo,
316 F.2d at 614-15. If the reviewing court determines that
the Government failed to produce Jencks Act material,
“[t]he legal standard to be applied in determining whether
a new trial should be granted ... depends on whether the
suppression was deliberate or inadvertent.” United States
v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975). “[I]f the
Government’s failure to disclose is inadvertent, a new
trial is required only if there is a significant chance
that this added item, developed by skilled counsel, could
have induced a reasonable doubt in the minds of enough
jurors to avoid a conviction.” Id.

     As to Inspector Bone, while other “circuits have held
that prior trial testimony is not within the scope of the
Jencks Act because the witness statements” are not “in the
possession of the United States” within the meaning 18
U.S.C. § 3500(b), see United States v. Chanthadara, 230
F.3d 1237, 1254-55 (10th Cir. 2000) (collecting cases),
this court has not ruled on the issue. As to Inspector
Connelly’s grand jury testimony in a Rhode Island child
pornography prosecution involving Azov Films (the “Silva”
case), such testimony may be covered by the act, see 18
U.S.C. § 3500(e)(3), but only if it sufficiently relates to


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Connelly’s direct testimony at Snyder’s trial.1 See United
States v. James, 609 F.2d 36, 48 (2d Cir. 1979). We need
not decide whether the Silva grand jury testimony triggered
a production obligation--or whether Inspector Bone’s trial
testimony is subject to the Act--because Snyder’s claim
fails on other grounds.

     In any event, Snyder has not shown that any error would
entitle him to a new trial. See United States v. Frank,
520 F.2d 1287, 1292 (2d Cir. 1975). The standard for
granting a new trial varies depending on whether the
Government’s failure to produce was inadvertent or
deliberate. United States v. Gonzalez, 110 F.3d 936, 943
(2d Cir. 1997). Here, the prosecution offered testimony
from the postal inspectors; defense counsel moved to strike
the testimony; and the trial judge denied the motions on
the express ground that there was no Jencks Act obligation
to produce those materials. The Government was therefore
never under order to produce the requested transcripts, and
Snyder does not allege subterfuge or fraud in the
Government’s conduct. Under these circumstances, the
Government cannot be said to have “deliberately suppressed”
the transcripts when it believed in good faith, and with
the blessing of the court, that the material was not
covered by the Act. See Hilton, 521 F.2d at 166; see,
e.g., United States v. Peterson, 116 F. Supp. 2d 366, 368
(N.D.N.Y. 2000).

     Snyder must therefore show that “there is a significant
chance that [the contested transcripts] could have induced
a reasonable doubt in the minds of enough jurors to avoid a

1 The Government provided Inspector Connelly’s grand jury
testimony from the Silva matter to the panel under seal.
Both the Silva grand jury testimony and Connelly’s direct
testimony at Snyder’s trial featured material from Azov
Films, but there is no evident relationship between the
content of the two testimonies beyond that broadly similar
theme. See Cardillo, 316 F.2d at 615; United States v.
Nosworthy, 475 F. App’x 347, 353-54 (2d Cir. 2012) (summary
order) (“We decline to embrace a reading of the Jencks Act
that would require the disclosure of information from an
entirely unrelated case just because it involved a broadly
similar—and far from uncommon—fact pattern.”).
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conviction.” Jackson, 345 F.3d at 77 n.14. In other
words, there must be a reasonable probability that had
defense counsel received the trial and grand jury
transcripts, “the result would have been different.”
Gonzalez, 110 F.3d at 943. Nothing in Inspector Connelly’s
grand jury testimony in Silva suggests bias that could be
drawn out on cross-examination, nor would the testimony be
likely to undermine the evidence supporting Snyder’s
conviction. And Snyder has not established that any other
information retrieved from publicly available trial
transcripts in another Azov matter would have been
favorable to the defense. See Jackson, 345 F.3d at 77
n.14. In sum, the district court did not abuse its
discretion in denying Snyder a new trial.

     Snyder also challenges the district court’s restitution
order as non-compliant with the requirements of Paroline v.
United States, 134 S. Ct. 1710 (2014). The Government has
consented to a limited remand for the district court to
conduct a Paroline analysis and explain the rationale for
its restitution order in light of the Paroline factors.

     For the foregoing reasons, and finding no merit in
Snyder’s other arguments, we hereby AFFIRM the judgment of
the district court in all respects except for the
restitution award, and REMAND for the limited purpose of
allowing the district court to determine the proper amount
of restitution in a manner consistent with this order.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE
                           CLERK OF COURT




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