08-0600-cr
United States of America v. Tawik

                                    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30th day of August, two thousand ten.

        PRESENT:
                             RALPH K. WINTER,
                             JOSÉ A. CABRANES,
                             DENNY CHIN ,
                                        Circuit Judges.
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        UNITED STATES OF AMERICA ,

                             Appellee,

                             -v.-                                                             No. 08-0600-cr

        ADAM TAWIK ,

                             Defendant-Appellant.
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        FOR DEFENDANT-APPELLANT:                                       ROBERT A. CULP, Garrison, NY.

        FOR APPELLEE:                                                  KATHERINE POLK FAILLA , Assistant United
                                                                       States Attorney for the Southern District of
                                                                       New York (Parvin Moyne, Assistant United
                                                                       States Attorney, of counsel, Preet Bharara,
                                                                       United States Attorney, on the brief), New
                                                                       York, NY


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     Appeal from a judgment of the United States District Court for the Southern District of
New York (Shira A. Scheindlin, Judge).


      UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED with respect to Counts One
and Two and VACATED, on the stipulation of the parties, with respect to Count Three. We
REMAND the cause to the District Court for resentencing.

        Defendant-Appellant Adam Tawik (“defendant” or “Tawik”) appeals from a final judgment
dated July 22, 2008 of the United States District Court for the Southern District of New York.
Defendant and William Nkrumah (“Nkrumah”) were convicted, following a jury trial, of one count
each of access device fraud in violation of 18 U.S.C. § 1029(a)(5) and (b)(1); conspiracy to commit
access device fraud in violation of 18 U.S.C. § 1029(b)(2); and aggravated identity theft, in violation
of 18 U.S.C. § 1028A. We assume parties’ familiarity with the facts and procedural history of this
case. Defendant appeals on six grounds.

                                                        I.

         Defendant claims that the government did not have sufficient evidence to show that he was
a member of a conspiracy or that he was present for both generator deliveries. We review de novo a
claim of insufficient evidence, applying the same standards as the district court. United States v.
Yanotti, 541 F.3d 112, 120-21 (2d Cir. 2008). To prevail, defendant must establish that no rational
trier of fact could have found beyond a reasonable doubt the essential elements of the crime
charged. See Jackson v. Virginia, 443 U.S 307, 319 (1979).

        “To prove conspiracy, the government must show that the defendant agreed with another to
commit the offense; that he knowingly engaged in the conspiracy with the specific intent to commit
the offenses that were the objects of the conspiracy; and that an overt act in furtherance of the
conspiracy was committed.” United States v. Monaco, 194 F.3d 381 (2d Cir. 1999) (internal quotation
marks omitted). The evidence necessary to link a defendant to a conspiracy “may be circumstantial
in nature.” In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 113 (2d Cir. 2008). See
also United States v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001) (“A defendant’s participation in a
criminal conspiracy may be established entirely by circumstantial evidence, and, once a conspiracy is
shown to exist, the evidence sufficient to link another defendant to it need not be overwhelming.”)
(internal quotation marks omitted).




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        The government offered evidence that Tawik was present at both illegal deliveries, and that
he twice signed another name to receive the generators. We are persuaded that the record shows
that the jury had sufficient evidence to support its findings.

                                                     II.

        Defendant argues that the admission of testimony regarding three matters constituted
impermissible hearsay under Federal Rule of Evidence 801: “(1)Voellm’s identification of Tawik as
the person who signed for the generators during the second delivery; (2) Voellm’s failure to identify
Nkrumah in a photo array shown to him one week prior to trial; and (3) Inspector Moriarty’s
testimony regarding prior statements he made relating to Voellm’s out-of-court identification.”
Gov’t. Brief 27. The record supports the District Court’s evidentiary rulings.

        Here, Defendant objected to some—but not all—of the District Court’s evidentiary rulings.
We review a evidentiary rulings for “abuse of discretion,” see, e.g. United States v. Kelley, 551 F.3d 171,
174 (2d Cir. 2009), but where there was no objection, we review for plain error under Rule 52(b) of
the Federal Rules of Criminal Procedure. United States v. Boyd, 222 F.3d 47, 49 (2d Cir. 2000). A trial
judge abuses his discretion when he rules “in an arbitrary or irrational fashion.” United States v. Kelley,
551 F.3d at 175. “A finding of plain error requires ‘(1) error, (2) that is plain, and (3) that affects the
defendant’s substantial rights.’” United States v. Gomez, 580 F.3d 94, 100 (2d Cir. 2009) (quoting
United States v. Carter, 489 F.3d 528, 537 (2d Cir. 2007)). If the first three criteria are met, this court
will exercise its discretion to remedy the error if (4) “the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Carter, 489 F.3d at 537. Under either standard, we
affirm the rulings of the District Court.

        The government used statements by Detective Fitzgibbon about Voellm’s earlier testimony
and the photo array to impeach Voellm’s testimony. As the trial transcript reveals, during a lengthy
sidebar regarding several evidentiary issues, the District Court gave both defendants the option of
calling Voellm back to testify. Tr. 346. Neither defendant chose to do so. Accordingly, under
Federal Rule of Evidence 801(d)(1)(C) we do not find any error in the admission of this testimony.

          The third example of alleged improper hearsay testimony took place during the examination
of Inspector Moriarty, when the government sought permission from the District Court to clarify
whether Moriarty had testified before the Grand Jury that Tawik had signed for the generators. The
District Court said, “There is no harm done in straightening out that this witness didn’t tell one story
at trial, one story at grand jury. I am not letting anything new in. I am going to allow the question.”
App. 224. Because no new information was brought in during this examination by the government,
and defendant had a full opportunity to cross-examine Moriarty, we find no error.

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                                                   III.

         Defendant claims that Counts One and Two of his indictment were “duplicitous” because
they charged multiple, separate crimes in the same counts. “An indictment is impermissibly
duplicitous where: (1) it combines two or more distinct crimes into one count in contravention of
Fed. R. Crim. P. 8(a)’s requirement that there be ‘a separate count for each offense,’ and (2) the
defendant is prejudiced thereby.” United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001) (quoting
United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)). “As long as the essence of the alleged
crime is carrying out a single scheme to defraud, then aggregation is permissible.” United States v.
Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989).

        In general, failure to raise the question of “duplicity” in a pretrial motion constitutes a waiver
of that argument. See Fed. R. Crim. P. 12(b)(3) (noting that defects in an indictment “must be raised
before trial”); Sturdivant, 244 F.3d at 76 (“Since the alleged duplicitous character of the counts
appears on the face of the indictment, appellants could have moved before trial to dismiss the
indictment. Failure to make the appropriate motion is a waiver.”). In the absence of waiver, if we
were to reach the merits of this claim, we would have no difficulty concluding that the government’s
theory in the case was to charge defendants with a single scheme to defraud that included multiple
deliveries. In sum, the claim of “duplicitous” indictment is without merit.

                                                   IV.

        Defendant claims that he suffered from ineffective assistance of counsel at trial because his
former attorney failed to move for a new trial under Rule 33 of the Federal Rules of Criminal
Procedure: “Counsel owed it to Mr. Tawik to at least try this motion, there being no down side and
given how close the case was. Judge Scheindlin’s remarks at the sentencing demonstrate the
prejudice in not making the motion, as she all but said that defendant was indeed the dupe of
Nkrumah.” Def.’s Brief 57.

         In general, “a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for
deciding claims of ineffective assistance of counsel.” Massaro v. United States, 538 U.S. 500, 505
(2003). But we will address an ineffective assistance claim on direct appeal if “the resolution of the
claim[ ] ‘is beyond doubt or to do so would be in the interest of justice.’” United States v. Hasan, 586
F.3d 161, 170 (2d Cir. 2009) (quoting United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990) (internal
quotation marks omitted)). This is such a case.


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           “To establish a claim of ineffective assistance, the defendant must establish: (1) that
counsel’s performance was so unreasonable under prevailing professional norms that counsel was
not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment . . . and (2) that
counsel’s ineffectiveness prejudiced the defendant such that there was a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different,”
United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984) (internal quotation marks omitted)). In applying the first prong of the test, we “indulge
. . . a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” and that “[e]ven the best criminal defense attorneys would not defend a
client in the same way.” Strickland v. Washington, 466 U.S. at 689. To prevail, a defendant must also
meet the test of the second prong of Strickland—that is, defendant must also show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.

        Defendant does not meet his burden under the first prong of Strickland. We have held that
“it can hardly constitute ineffective assistance to fail to present a claim via a Rule 33 motion that . . .
is without merit.” U.S. v. Castillo, 14 F.3d 802, 805 (2d Cir. 1994). Given the evidence against
defendant, a decision by counsel not to make a motion under Rule 33 was not unreasonable.

        Even if defendant met his burden under the first prong, he would not meet his burden under
the second prong. Under the second prong of Strickland we need only determine whether a Rule 33
motion would have likely changed the outcome of the trial. As the government notes, the comment
of the District Court on which defendant relies was made during sentencing, as part of an argument
that the “two year term of imprisonment mandated by 18 U.S.C. § 1028A was unduly ‘high for this
conduct.’” Gov.’t Brief 53. In light of its context, the District Court’s passing comment was not a
sign of the weakness of the evidence against defendant. Indeed, given the weight of the evidence
against defendant, it is highly unlikely that a Rule 33 motion would have succeeded on the merits.
Because defendant would be unable to meet his burden under either prong of Strickland, we reject
his claim of ineffective assistance of counsel.

                                                    V.

        Relying upon the Supreme Court decision in Flores-Figueroa v. United States, 129 S.Ct. 1886
(2009), defendant moves to vacate his conviction under Count Three. The government “concedes
that the jury was improperly instructed on the elements of the Section 1028A offense in light of the
Supreme Court’s intervening decision [in Flores-Figueroa].” Gov.’t Brief 14. Accordingly, we vacate
the conviction on Count Three.


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                                                  VI.

        Defendant claims that due to lack of sufficient evidence that he was involved in the first
delivery, the cause should be remanded for resentencing under a lower Guidelines range.

         We review all sentences using a “deferential abuse-of-discretion standard.” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Our review has
“two components: procedural review and substantive review.” Id. We “first ensure that the district
court committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall
v. United States, 552 U.S. 38, 51 (2007). We then engage in review of the substantive reasonableness
of the sentence and reverse only when the court’s sentence “cannot be located within the range of
permissible decisions.” Cavera, 550 F.3d at 189.

        Defendant argues that there was insufficient evidence that he was present at the first
delivery. We have rejected those arguments above. See I, ante. Accordingly, following de novo review,
we hold that the District Court did not err in its sentence. Nevertheless, in light of the vacatur of
defendant’s conviction on Count Three, the District Court will need to resentence on remand.

                                          CONCLUSION

       We have considered all of defendant’s arguments and, with one exception, have found them
unpersuasive. For the reasons stated above, the convictions on Counts One and Two are
AFFIRMED and the conviction on Count Three is VACATED, with the agreement of the
government. We REMAND the cause for resentencing only.



                                                        FOR THE COURT,
                                                        Catherine O’Hagan Wolfe, Clerk




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