08-6091-cr
USA v. Spivack

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                              AMENDED SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 12th day
of May, two thousand ten.

Present:
            ROBERT D. SACK,
            ROBERT A. KATZMANN,
                        Circuit Judges,
            RICHARD J. SULLIVAN,
                        District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

               Appellee,

                      v.                                    No. 08-6091-cr

WARREN SPIVACK,

               Defendant-Appellant.

________________________________________________

For Defendant-Appellant:      SUSAN G. KELLMAN , Brooklyn, NY (Andrea G. Hirsch, New York,
                              NY on the brief)



       *
          The Honorable Richard J. Sullivan, United States District Judge for the Southern
District of New York, sitting by designation.
For Appellee:          PATRICK SEAN SINCLAIR, Assistant United States Attorney (Jo Ann M.
                       Navickas, Assistant United States Attorney, on the brief) for Benton J.
                       Campbell, United States Attorney for the Eastern District of New York,
                       Brooklyn, NY


      Appeal from the United States District Court for the Eastern District of New York
(Korman, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant Warren Spivack appeals from a judgment of conviction entered on October 23,

2008, following a jury trial, convicting him of two counts of distribution and five counts of

possession of child pornography. We assume the parties’ familiarity with the facts and

procedural history of the case.

       Spivack argues on appeal that he was denied a fair trial due to the misconduct of the

prosecutor. Specifically, Spivack argues that (1) the prosecutor allowed one of the government’s

witnesses to testify falsely in a highly prejudicial way; (2) the prosecutor’s opening and

summation statements to the jury were improperly calculated to appeal to the jury’s emotions and

inflame the jury’s prejudices; and (3) the prosecutor violated the government’s discovery

obligations.

       “A defendant’s conviction may be vacated if prosecutorial misconduct caused substantial

prejudice implicating the right to due process.” United States v. Fell, 531 F.3d 197, 209 (2d Cir.

2008). A prosecutor has a fundamental obligation to ensure that the testimony he elicits is true.

Shih Wei Su v. Filion, 335 F.3d 119, 126-27 (2d Cir. 2003). Further, a “prosecutor should not

use arguments calculated to inflame the passions or prejudices of the jury,” and where “the only



                                                -2-
conceivable purpose of the prosecutor’s [remarks] was to prejudice the jury,” a prosecutor’s

remarks are improper. United States v. Modica, 663 F.2d 1173, 1180-81 (2d Cir. 1981) (internal

quotation marks omitted). To warrant reversal, however, the prosecutorial misconduct must “so

infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”

United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation marks omitted). In

assessing whether prosecutorial misconduct caused “substantial prejudice,” we consider “the

severity of the misconduct, the measures adopted to cure it, and the certainty of conviction in the

absence of the misconduct.” United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995).

       We conclude that allowing the government’s witness to testify falsely in a material way,

albeit unknowingly, constituted severe misconduct. See Shih Wei Su, 335 F.3d at 126 (“The

prosecutor is an officer of the court whose duty is to present a forceful and truthful case to the

jury . . . .”). Eliciting false testimony that Spivack was a pedophile was outrageous. “[E]ven

when a prosecutor elicits testimony that he or she knows or should know to be false,” however,

“a showing of prejudice is required.” Id. at 126-27. Considering the severity of the misconduct,

the measures adopted to cure it, and the certainty of conviction in the absence of the misconduct,

see Melendez, 57 F.3d at 241, we conclude that there was no prejudice here.

       First, while allowing a government witness to testify falsely is severe misconduct, its

severity is mitigated by the fact that there is no evidence that the prosecutor knew that the

witness’s testimony was false, see Modica, 663 F.2d at 1181 (“[a]mong the elements weighed . . .

are the extent to which the misconduct was intentional”), and the fact that defense counsel also

did not initially notice that the testimony was false. In addition, the district court adopted a

strong measure to cure the misconduct. The district court instructed the jury that the witness’s


                                                 -3-
“testimony was untrue and does not comport with the agent’s report of his interview with Mr.

Spivack,” and directed the jury “to disregard it completely except inasmuch as it affects your

evaluation of the credibility of the witness.” “[T]he record,” thus, “disclose[s] emphatic curative

instructions by the trial judge.” United States v. Friedman, 909 F.2d 705, 710 (2d Cir. 1990).

Finally, conviction was highly certain absent this false testimony. The government presented

evidence that Spivack stated that he was aware that he was sharing his files. It also introduced

evidence that Spivack was savvy about computers and had changed his software settings, making

it was highly unlikely that he had inadvertently shared files.

       By contrast, we do not find the prosecutor’s somewhat lurid description of the

photographs at issue during the course of its opening statements to constitute misconduct. The

government was entitled to inform the jury about the photographs Spivack allegedly possessed

and distributed, and to underscore the moral implications of his crime. See United States v.

Simmons, 923 F.2d 934, 955 (2d Cir. 1991) (holding that, in heroin possession and distribution

case, the fact that the prosecutor’s references to the “collapsed veins of junkies” and “swollen

arms,” were “blunt and to the point” was “not a basis to find them improper”). While it is true

that Spivack was not on trial for molesting or photographing children, a principal reason

possession and distribution of child pornography are illegal is that children were sexually

assaulted or otherwise abused in the course of its production, and because such behavior helps

maintain a market for material dependent on the infliction of such harm. See Ashcroft v. Free

Speech Coal., 535 U.S. 234, 240, 249 (2002).

       Although these remarks may not have constituted misconduct standing alone, however,

we find them troubling in light of the false testimony elicited in this case regarding Spivack’s


                                                 -4-
status as a “pedophile” who “engaged in sexual activity with a child.” Tr. Trans., March 6, 2008,

541.1 Because of the nature of this false testimony, the repeated remarks linking the defendant to

“children’s pain and torture” and to “real little girls . . . being tortured and sodomized, being

raped,” and being “subject to the violent experiences,” Gov’t Opening Statement, 63, 66, take on

additional significance. Having carefully considered the trial record, however, we conclude that

these statements, in context, did not constitute misconduct, nor did they “so infect[] the trial with

unfairness as to make the resulting conviction a denial of due process.” Elias, 285 F.3d at 190.



          The government’s references to Lolita in closing were more problematic. It is difficult to

perceive any purpose for them other than to inflame the jury. See Modica, 663 F.2d at 1180-81.

The prosecutor’s Lolita remarks were objected to, however, the objection was sustained, and this

line of commentary, which appears to us to have been largely unintelligible, ended. The

prosecutor’s summation was otherwise proper and this single lapse did not result in substantial

prejudice. See Elias, 285 F.3d at 190 (“[R]emarks of the prosecutor in summation do not amount

to a denial of due process unless they constitute egregious misconduct.”) (internal quotation

marks omitted). Although regrettable, we do not think any of the prosecutor’s remarks, or all of

them in the aggregate, were sufficiently egregious to amount to a denial of Spivack’s due process

rights.

          We thus conclude that Spivack was not denied a fair trial due to the false testimony of



          1
           The panel agrees that the prosecutor’s opening remarks did not constitute misconduct.
Judge Sullivan, seeing little link between the opening remarks and the false testimony, also does
not find them inappropriate nor does he conclude that they take on additional significance in light
of that testimony.

                                                  -5-
one of the government’s witness or the prosecutor’s opening and closing remarks. We have

considered the remainder of Spivack’s arguments concerning prosecutorial misconduct and find

them also to be without merit.

       Spivack also alleges on appeal that his trial was unfair due to the ineffectiveness of his

counsel. We decline to hear this claim in the first instance, especially because Spivack merely

challenges his trial counsel’s overall strategy and we are not in a position to evaluate his trial

counsel’s overall performance throughout the case. See United States v. Stearns, 479 F.3d 175,

179 (2d Cir. 2007) (per curiam) (“Since claims of ineffective assistance should be made in the

first instance to the district court, we generally decline to hear such claims on direct appeal.”)

(internal quotation marks omitted). Spivack may raise this claim in a 28 U.S.C. § 2255 motion.

       Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.



                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




                                                  -6-
