     11-3455-cr
     United States v. Sialeu



                               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 3rd day of May, two thousand thirteen.

     Present:
                 PIERRE N. LEVAL,
                 ROBERT A. KATZMANN,
                 PETER W. HALL,
                       Circuit Judges.
     _________________________________________

     UNITED STATES OF AMERICA,

                         Appellee,

                         v.                                               No. 11-3455-cr

     JULIENNE SIALEU,

                 Defendant-Appellant.
     _________________________________________

     For Appellee:                   Michael A. Levy, Justin Anderson, Jennifer G. Rodgers,
                                     Assistant United States Attorneys, for Preet Bharara, United
                                     States Attorney for the Southern District of New York, New
                                     York, NY.

     For Defendant-Appellant:        Julienne Sialeu, pro se, Brooklyn, NY.
       Appeal from a judgment of the United States District Court for the Southern

District of New York (Cote, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Julienne Sialeu, proceeding pro se, appeals from a judgment of

conviction dated August 24, 2011, entered following a bench trial and conviction for

willfully and knowingly filing false reports of her assets, household composition, and

household income in violation of 18 U.S.C. § 1001 and fraudulently obtaining housing

subsidies in violation of 18 U.S.C. § 641. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       Starting with Sialeu’s challenge to the sufficiency of the evidence against her, our

review of sufficiency of the evidence claims is “exceedingly deferential.” United States v.

Hassan, 578 F.3d 108, 126 (2d Cir. 2008). We view the evidence in the light most

favorable to the government and affirm if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Aguilar, 585

F.3d 652, 656 (2d Cir. 2009) (internal quotation marks omitted). Here, the evidence

demonstrated that Sialeu acted knowingly in making false statements on her applications

for housing benefits. On appeal, she appears primarily to allege without elaboration that

the evidence against her was insufficient because the government’s witnesses testified

erroneously and that the evidence against her had been falsified. Sialeu has provided no

reason to believe that the evidence presented at trial was false; her counsel did not object to

the admission of documentary evidence against her; and it is the duty of the finder of fact,



                                              2
not a reviewing court, to determine the weight to be accorded to evidence and the

credibility of witnesses. See United States v. O’Connor, 650 F.3d 839, 855 (2d Cir. 2011).

Because Sialeu’s challenge to the sufficiency of the evidence is essentially an unsupported

attack on the credibility determinations made by the district court, this challenge fails.

        Turning next to Sialeu’s waiver of her right to a trial by jury, we review the

effectiveness of such a waiver de novo. See United States v. Carmenate, 544 F.3d 105, 107

(2d Cir. 2008). A waiver of the right to trial by jury must be knowing, voluntary,

intelligent, made in writing, consented to by the Government, and approved by the trial

court. See id.; Fed. R. Crim. P. 23(a). The trial court is not constitutionally required to

conduct a colloquy, but it must evaluate the waiver under all the circumstances of the case.

See Carmenate, 544 F.3d at 107-08. Here, Sialeu’s counsel expressed concern that a jury

might view Sialeu’s psychiatric condition unfavorably, and stated that Sialeu was “very

comfortable with the idea of a bench trial.” The district court reviewed with Sialeu the

rights attendant to trial by jury, and Sialeu confirmed that she understood, or at least

thought she understood, each one. She affirmatively stated that she did not want a jury

trial, and, when asked by the court “who do you want to try your case,” she responded that

she “want[ed]” and “had faith in” the district court. Although Sialeu had taken her daily

dose of antidepressant and antipsychotic medications that day, which could have arguably

made it more difficult for her to understand her rights, given the full circumstances in the

record, we agree with the district court that Sialeu’s waiver was knowing, voluntary, and

intelligent.

        Next we consider Sialeu’s claim that witnesses perjured themselves at her trial, in

order to be granted a new trial on the grounds that a witness committed perjury a defendant
                                             3
must show that the witness actually committed perjury, that the perjury was material, that

the government knew or should have known of the perjury during trial, and that the

perjured testimony remained undisclosed during trial. See United States v. Josephberg,

562 F.3d 478, 494 (2d Cir. 2009). Here, Sialeu asserts, in only conclusory terms, that the

witnesses committed perjury, and she has made no specific allegations of government

misconduct. As above, her primary objection appears to be that the district court

determined that the government’s witnesses were more credible than she was, which is not

cognizable upon appellate review. See O’Connor, 650 F.3d at 855. Her claim that witness

perjury requires a new trial fails.

        Finally, we decline to address Sialeu’s claims of ineffective assistance of counsel;

we prefer such arguments be made in a motion brought under 28 U.S.C. § 2255. See

United States v. Wellington, 417 F.3d 284, 288 (2d Cir. 2005) (citing Massaro v. United

States, 538 U.S. 500, 504 (2003)).

        We have considered all of Sialeu’s remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                              4
