12-1554-cr
United States v. Busby



                             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 13th
day of May, two thousand thirteen.

PRESENT:

                    JOSÉ A. CABRANES,
                    BARRINGTON D. PARKER,
                    RAYMOND J. LOHIER, JR.,

                                 Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                                         Appellee,

                    v.                                                   No. 12-1554-cr

ADRIAN BUSBY,

                     Defendant-Appellant.
_____________________________________

FOR DEFENDANT-APPELLANT:                                 Laurie S. Hershey, Manhasset, NY.

FOR APPELLEE:                                            Alvin L. Bragg, Jr., Sarah E. McCallum, Diane
                                                         Gujarati, Assistant United States Attorneys, for
                                                         Preet Bharara, United States Attorney for the


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                                                                    Southern District of New York, New York,
                                                                    NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Harold Baer, Jr., Judge).

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

        Defendant-appellant Adrian Busby appeals from a judgment of conviction entered on April
11, 2012, after being found guilty by a jury on four counts of making false statements to federal
authorities, in violation of 18 U.S.C. § 1001. These charges stemmed from false statements that
Busby, a former agent of the Federal Bureau of Investigation (the “FBI”), made in internal FBI
documents and to federal prosecutors regarding a confidential informant, with whom Busby had an
intimate relationship. After calculating a Guidelines range of 15 to 21 months’ imprisonment, the
District Court sentenced Busby to prison terms of 12 months and 1 day on each count, to run
concurrently.

        On appeal, Busby raises three arguments, which we address in turn. We assume the parties’
familiarity with the facts and procedural history of this case.

         First, Busby argues that the District Court committed plain error by not holding a hearing
after the Court issued a sua sponte request to the government for information to ensure that Busby
was not selected for prosecution because of his race. In particular, Busby argues that his offense,
though unlawful, was not severe enough to warrant prosecution under normal prosecutorial
standards. The parties agree that our review of this unpreserved argument is for “plain error.” See
Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining “plain error” review). The District Court
did not err, as the record does not contain evidence constituting a prima facie case, see United States v.
Sun Myung Moon, 718 F.2d 1210, 1229 (2d Cir. 1983), that Busby was selected for prosecution
because of his race.

        Second, Busby argues that the Court abused its discretion by allowing the government to
introduce the testimony of the lawyer of a codefendant of the confidential informant with whom
Busby had a relationship. In particular, Busby argues that the Court should have excluded, pursuant
to Rule 404(b) of the Federal Rules of Evidence,1 the lawyer’s testimony that Busby, as he
summarizes on appeal, “was interfering with the case of Ms. Salazar’s codefendant and . . . took the

1 Rule 404(b) states, in relevant part, that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's
character in order to show that on a particular occasion the person acted in accordance with the character,” Fed. R.
Evid. 404(b)(1), but that “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” Fed. R. Evid. 404(b)(2).

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codefendant’s guilty plea ‘personally.’” Appellant’s Br. at 36. Based on the record, we conclude that
the District Court’s evidentiary ruling, which we review for an “abuse of discretion,” United States v.
Mercado, 573 F.3d 138, 141 (2d Cir. 2009), was “within the range of permissible decisions” and was
not based “on an erroneous view of the law or on a clearly erroneous assessment of the evidence,”
In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (quotation marks omitted) (explaining the “abuse of
discretion” standard). Most importantly, the contested evidence was probative of Busby’s motives
and intent to turn over the confidential FBI reports that he claimed to have lost by accident, and any
unfair prejudicial effect was minimal, if present at all. The District Court’s decision was therefore
not an “abuse of discretion.” Moreover, Busby did not request a limiting instruction and has
therefore forfeited any argument that such an instruction was necessary. See United States v. Scott, 677
F.3d 72, 79 (2d Cir. 2012).

         Third, Busby argues that the District Court plainly erred by permitting the prosecutor to
make statements during closing arguments, without objection by defense counsel, regarding Busby’s
efforts to intervene in the state prosecutions involving the confidential informant with whom he had
a relationship and her codefendant. As explained above, however, Busby’s efforts to interfere with
state prosecutions were probative of his motives and intent to turn over the confidential FBI reports
that he claimed to have lost by accident. The government statements at trial were therefore
appropriate, and the District Court did not “abuse its discretion,” much less “plainly err,” by not
issuing sua sponte an instruction to the jury to disregard the uncontested (but now disputed on appeal)
government statements.

                                          CONCLUSION

        We have reviewed all of Busby’s arguments and find them to be without merit. Accordingly,
the judgment of conviction is AFFIRMED.



                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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