United States v. Douglas

06-0581-cr
USA v. Douglas

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 - - - - - -

4 August Term, 2007

5 (Argued: October 16, 2007 Decided: May 13, 2008)

6 Docket No. 06-0581-cr

7 _________________________________________________________

8 UNITED STATES OF AMERICA,

9 Appellee,

10 - v. -

11 PAUL RYAN DOUGLAS,

12 Defendant-Appellant.
13 _________________________________________________________

14 Before: KEARSE and KATZMANN, Circuit Judges, and RAKOFF,

15 District Judge*.

16 Appeal from an amended judgment entered in the United

17 States District Court for the Southern District of New York,

18 Colleen McMahon, Judge, convicting defendant of killing a person in

19 connection with an attempt to steal money from ATM machines. See 18

20 U.S.C. §§ 2113(a) and (e).

21 Affirmed.

22 STEPHEN J. RITCHIN, Assistant United States
23 Attorney, New York, New York (Michael J.
24 Garcia, United States Attorney for the
25 Southern District of New York, Karen B.

* Honorable Jed S. Rakoff, of the United States District Court for
the Southern District of New York, sitting by designation.
 1 Konigsberg, Celeste L. Koeleveld, Assistant
2 United States Attorneys, New York, New York,
3 on the brief), for Appellee.

4 CLINTON W. CALHOUN, III, White Plains, New York
5 (Briccetti, Calhoun & Lawrence, White
6 Plains, New York, on the brief), for
7 Defendant-Appellant.

8 KEARSE, Circuit Judge:

9 Defendant Paul Ryan Douglas appeals from an amended

10 judgment, entered in the United States District Court for the

11 Southern District of New York following a jury trial before Colleen

12 McMahon, Judge, convicting him of killing a person in connection

13 with an attempt to enter a bank with intent to commit a crime

14 therein, in violation of 18 U.S.C. §§ 2113(a) and (e), and

15 sentencing him principally to a mandatory term of life imprisonment

16 and ordering him to pay $11,081.44 in restitution. On appeal,

17 Douglas contends principally (1) that, because a § 2113(e) offense

18 may be punished by death, he was entitled to representation by two

19 attorneys, see 18 U.S.C. § 3005, and the district court erred in

20 dismissing one of his two appointed attorneys after the government

21 stated that it would not seek the death penalty; (2) that the

22 government engaged in impermissible discrimination in the use of a

23 peremptory challenge during jury selection; (3) that there were

24 various errors in connection with the eyewitness identification

25 evidence admitted against him; and (4) that evidence obtained in

26 violation of his privilege against self-incrimination should not

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 1 have been admitted in evidence in the government's rebuttal case.

2 For the reasons that follow, we affirm.

3 I. BACKGROUND

4 The present prosecution arose out of an attempted theft

5 from automated teller machines ("ATMs") at a branch of Citibank,

6 N.A., located in a building on Central Park Avenue in Yonkers, New

7 York (the "Yonkers ATMs"), during which an ATM technician was

8 killed. Douglas was tried on a two-count superseding indictment

9 that charged him with attempting to enter a bank facility with

10 intent to commit larceny therein, in violation of 18 U.S.C.

11 § 2113(a) (count one), and killing a person in connection with that

12 attempt, in violation of 18 U.S.C. §§ 2113(a) and (e) (count two).

13 We summarize the evidence as to the robbery attempt, as well as the

14 evidence as to Douglas's ensuing flight and statements, in the light

15 most favorable to the government.

16 A. The Government's Direct Case

17 In 2004, Citibank ATMs were serviced by Brink's, Inc.

18 ("Brink's"), which periodically replenished the machines with cash.

19 From late 1999 through mid-2002, Douglas was an employee of Brink's.

20 Part of his job had been to fill the Yonkers ATMs with $400,000 to

21 $500,000 in cash on Thursday mornings.

22 In April 2004, Milton Moran, Jr. ("Moran"), was employed

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 1 by Brink's as an ATM repair technician. On the morning of Thursday,

2 April 22, 2004, Moran went to the building in which the Yonkers ATMs

3 were located to repair an ATM printer. For such an assignment,

4 Moran normally carried, inter alia, a pouch containing (a) keys to

5 give him access to the backs of the ATMs and (b) the various codes

6 for disabling alarms and for releasing the electronic locks on the

7 backs of the ATMs; as a matter of Brink's policy, he also carried a

8 gun. At 8:54 on that Thursday morning, Moran notified Brink's that

9 he had arrived at the Yonkers ATMs facility; at 9:02 a.m. he

10 notified Brink's that he was about to depart.

11 At about 10:00 or 10:30 that morning, John Vitetta, who

12 worked in a ground floor office in the building in which the Yonkers

13 ATMs were located, was in the parking lot working on his car when he

14 saw a body being dragged between an SUV and an adjacent Toyota.

15 Thinking the body was a CPR mannequin, Vitetta returned his

16 attention to his car. After hearing a thud and looking up again, he

17 saw feet sticking out of the trunk of the Toyota and saw a man

18 standing behind the open trunk. Realizing that the body he had seen

19 being dragged was not that of a mannequin but that of a person,

20 Vitetta ran into his office and called 911. At trial, Vitetta

21 pointed out Douglas as the man he had seen standing behind the trunk

22 in which the body had just been placed. Vitetta also testified that

23 he had selected the picture of Douglas from a six-picture

24 photographic array shown to him by the police two days after the

25 event.

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 1 When the police arrived at the parking lot in response to

2 Vitetta's 911 call, they opened the trunk of the Toyota and found

3 Moran, dead, with duct tape wrapped around his mouth and head.

4 Moran had extensive bruising on the head, along with contusions on

5 his arm and hand that were consistent with defensive wounds. The

6 cause of death was determined to be principally asphyxia due to

7 smothering, along with blunt force trauma to the head and face. The

8 keys and codes that Moran had used to gain access to the back and

9 interior of the ATM machine were missing. And although Moran was

10 wearing a gun holster and carrying a gun permit, his gun was

11 missing.

12 Marilyn Sarin, employed in the same office as Vitetta, had

13 heard Vitetta calling 911 and describing what he had seen. She had

14 then run into the parking lot and had seen an SUV back swiftly out

15 of a parking spot and speed out of the lot through the marked

16 entrance rather than the exit. Sarin testified at trial that the

17 vehicle was driven by "a heavyset, black male with dark facial

18 hair." (Trial Transcript ("Tr."), at 178.) Although Sarin was

19 unsure whether she would recognize the driver if she saw him again,

20 she testified that when she was shown a six-picture array four days

21 after the incident, see Part II.C.1. below, she selected the picture

22 of Douglas as the driver.

23 In addition, upon observing the SUV on the morning of

24 April 22, Sarin wrote down the SUV's license plate number. Records

25 revealed that the vehicle belonged to a woman with whom Douglas was

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 1 living in Brooklyn. When the SUV was recovered several days later,

2 its contents included a loaded shotgun, a bulletproof vest, a

3 suitcase containing men's clothing and toiletry items, Douglas's

4 social security card, and his then-recently expired Jamaican

5 passport.

6 Douglas, after exiting the Yonkers ATMs parking lot on

7 April 22, shortly left the New York area by bus and made his way to

8 Florida. There he made statements to his cousin and a close friend

9 of the family, both of whom were called as witnesses by the

10 government.

11 Douglas told those witnesses that he had planned, in

12 collaboration with Moran, to steal money from ATM machines

13 immediately after the machines received cash infusions. Douglas was

14 to hit Moran on the head and bind his mouth and hands to make it

15 appear that Moran had been a robbery victim. Douglas said he had

16 hit Moran on the head and taped Moran's mouth while they were in the

17 SUV; that the Brink's truck bringing cash to the ATMs did not arrive

18 when expected; and that while he and Moran were waiting, Moran

19 pointed out that the tape on his mouth had come loose and Douglas

20 tightened it. Douglas said he then went to the ATMs to check on

21 whether the cash had been delivered, and when he returned to the

22 SUV, he found Moran unresponsive, and he panicked. He put Moran's

23 body in the trunk of Moran's car and fled in his girlfriend's SUV.

24 On April 26, Douglas turned himself in to the police in

25 Florida, saying, inter alia, that he had been involved in a robbery

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 1 attempt in New York in which a man had died.

2 B. Douglas's Defense

3 Douglas's defense consisted principally of his own

4 testimony. He admitted that he had made most of the statements to

5 which his cousin and friend testified; but Douglas testified that he

6 had given them a story that he had "made up" (Tr. 569). Douglas

7 testified that he had in fact been at the site of the Yonkers ATMs

8 on the morning in question, had put Moran's body in the trunk of

9 Moran's car, and had left the scene in his girlfriend's SUV. He

10 also admitted that he had gone to Florida and told his cousin and

11 their friend that he and Moran had planned to rob the ATMs together

12 and that Moran had accidentally died. However, Douglas denied that

13 he had said anything about hitting Moran, tying him up, or taping

14 his mouth; he also denied that he had gone to see whether the ATMs'

15 expected cash delivery had arrived or had tightened the tape on

16 Moran's mouth. Douglas testified that in fact Moran had been killed

17 by another man.

18 Douglas testified that some three months prior to April

19 22, he encountered a man he had not met before and the man began

20 extorting money from him by threatening him and his family.

21 Douglas--who testified that in Jamaica he had been a policeman for

22 more than six years--never notified the authorities of the extortion

23 (see, e.g., Tr. 612-15); he gave the man money on several occasions

24 (a total of $13,000 (see id. at 752)), indeed draining his bank

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 1 account (and borrowing on his credit cards and pawning his jewelry)

2 to do so (see id. at 473-74). Douglas described the man as darker-

3 skinned than himself, with dreadlocks or twists in his hair, but

4 testified that he did not know the man's name. However, the man

5 somehow knew, without any input from Douglas, that Douglas had

6 formerly worked at Brink's. On April 20, Douglas agreed to drive

7 the unnamed man to the site of the Yonkers ATMs on the morning of

8 April 22 (see Tr. 482-83), and on April 22 he did so with the

9 unnamed man holding a gun to his neck. Douglas testified that it

10 was this unnamed man who killed Moran.

11 Douglas testified that after he drove the unnamed man to

12 the Yonkers ATMs location, he drove around the parking lot, then

13 parked for a while, and then exited the lot and parked on the

14 street, adjacent to the lot. Douglas then got out of the SUV and

15 sat on the back bumper while the unnamed man sat in the SUV and

16 cased the location for purposes of a robbery. After Douglas saw

17 Moran, whom he knew, approaching the building and sorting through a

18 ring of keys, Douglas reentered the SUV; the unnamed man asked who

19 Moran was, and Douglas informed him that Moran was an ATM

20 technician. The unnamed man forced Douglas to reenter the parking

21 lot. When Moran reappeared some 10 minutes later after leaving the

22 building and approached his own car, the unnamed man exited the SUV,

23 approached Moran, and jammed his gun into Moran's back. The man

24 forced Moran to drive Moran's car from its spot in front of the ATM-

25 area entrance to a corner of the lot and beckoned to Douglas to

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 1 bring the SUV to the parking spot next to Moran's car; the man then

2 put Moran into the back seat of the SUV. The unnamed man also

3 climbed into the SUV's back seat, and he forced Moran to give him

4 the keys, to identify those that unlocked the doors to the ATMs, and

5 to disclose the alarm-disabling codes. The man then gave Douglas

6 the keys and codes and told him to make sure the codes were correct.

7 Douglas testified that before he went to check on the ATM

8 codes, the unnamed man asked whether he had rope to tie up Moran;

9 Douglas responded that he did not have rope but volunteered that he

10 did have duct tape "if that can help" (Tr. 522), and he gave the man

11 his duct tape. Douglas testified that he then left the SUV and

12 walked around the corner of the building in which the ATMs were

13 located but that he never entered or attempted to enter the

14 building; after remaining out of sight of the unnamed man for some

15 10-15 minutes, he returned to the SUV, got into the driver's seat,

16 and said the codes were good. The unnamed man was by then in the

17 front passenger seat. When Douglas could not see Moran in the back

18 seat, he got out and opened the back door and found Moran on the

19 floor, bruised, gagged, and unresponsive. Douglas got into the back

20 seat and tried to pull the duct tape from Moran's mouth but was

21 unsuccessful.

22 Douglas testified that he "was crying and then the crying

23 turned to rage." (Tr. 544.) He suddenly "remembered" that he had

24 in the back of the SUV a shotgun (see id.)--which he had begun to

25 carry in his own vehicle because he was being threatened by the

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 1 unnamed man and which he transferred to the rear area of the SUV on

2 the eve of these events (see id. at 488-92). Douglas testified that

3 when he remembered the shotgun, he "jumped up and . . . reached for"

4 the shotgun case, "unzipped the case," pulled the shotgun out and

5 "brought it forward," and then "racked it," making a "cha-chu"

6 sound. (Id. at 544-45.) When he then pointed the shotgun at the

7 unnamed man, the man jumped out of the car and fled on foot.

8 Douglas testified that, after some deliberation, he pulled

9 Moran's body out of the SUV, and it hit the ground with a very loud

10 thud. Douglas testified that he then saw Vitetta in the parking

11 lot, watching him. Douglas put Moran's body in the trunk of Moran's

12 car. He then drove the SUV to Brooklyn, left it in a hospital

13 parking garage, and fled to Florida.

14 C. The Government's Cross-examination and Impeachment of Douglas

15 In cross-examining Douglas, the government elicited

16 answers that, inter alia, highlighted the implausibilities in his

17 story. For example, having begun to carry the shotgun and bullet-

18 proof vest precisely because he was afraid of the unnamed man, and

19 having put them into the back of the SUV on April 21 knowing he

20 would be driving the unnamed man to Yonkers the next morning,

21 Douglas testified that he made no attempt to get the shotgun or vest

22 on April 22 when the unnamed man went off to intercept Moran and

23 left Douglas alone in the SUV. Having testified that he cried after

24 seeing Moran's condition, Douglas admitted that his only attempt to

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 1 revive Moran was the unsuccessful effort to remove the tape from

2 Moran's mouth, and that although he did not know whether Moran was

3 still alive (he made no attempt to discern whether Moran still had

4 a pulse), it never occurred to him to take Moran into the doctor's

5 office that Douglas knew was in the building. And despite

6 proclaiming his innocence at trial, during the nearly 20 months

7 between his arrest in this case and his testifying at trial Douglas

8 had made no effort whatever to tell the authorities about the

9 unnamed man.

10 The government also asked Douglas about his decision to

11 put Moran's body in the trunk of Moran's car:

12 Q: So the decision to take this dead body and
13 dump it into the trunk of a car, that was your
14 decision, right?

15 A: Yes, that was all mine.

16 . . .

17 Q: Now Milton was an ATM tech, right?

18 A: That is correct.

19 Q: And ATM techs are armed, right?

20 A: Yes, I think they are, far as my
21 recollection.

22 Q: And you know that, right?

23 A: Yes.

24 Q: And Milton was armed that day, right?

25 A: I don't know if he was.

26 Q: You have no idea whether he was armed?

27 A: No.

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 1 Q: You have no idea whether he had a gun on
2 him?

3 A: I think he might have, but I'm not sure.

4 Q: You're not sure whether he had a gun on
5 him? You have no idea what happened to that gun?

6 A: No, I didn't do anything.

7 (Tr. at 674-75 (emphases added).) As discussed in Part II.D. below,

8 the government was then allowed to question Douglas with respect to

9 a statement he had made about Moran's gun to the police in Florida,

10 which the government had acknowledged was inadmissible in its case-

11 in-chief because it had been given in response to questioning before

12 Douglas was given warnings pursuant to Miranda v. Arizona, 384 U.S.

13 436 (1966). Douglas had told the Florida police that he had thrown

14 Moran's gun off a bridge.

15 The government continued its cross-examination of Douglas

16 by asking whether, when he put Moran's body in the trunk of the

17 Toyota, he noticed that Moran's gun holster was empty. Douglas

18 responded that he did not observe a holster, and he reiterated that

19 he did not do anything with Moran's gun and did not know what

20 happened to it. The government then asked him about being

21 questioned by Florida police officers who were relaying an inquiry

22 from the police in Yonkers as to the whereabouts of Moran's gun.

23 Douglas denied telling the Florida officers that he had thrown the

24 gun off the bridge.

25 In its rebuttal case, the government called two Florida

26 police officers, who testified that Douglas told them he had thrown

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 1 Moran's gun off a bridge. The district court instructed the jury

2 that it was to consider this evidence for impeachment purposes only,

3 and not for its truth.

4 D. The Verdict and the Sentence

5 The jury found Douglas guilty on both counts of the

6 superseding indictment, i.e., attempted entry of a bank facility

7 with intent to commit a felony therein, in violation of 18 U.S.C.

8 § 2113(a), and killing a person in connection with that attempt, in

9 violation of 18 U.S.C. §§ 2113(a) and (e).

10 On Douglas's motion, consented to by the government, the

11 district court essentially concluded that the offense of attempted

12 entry of a bank with intent to commit a felony therein in violation

13 of 18 U.S.C. § 2113(a) is included within the § 2113(e) offense of

14 causing the death of a person while committing that § 2113(a)

15 offense, and it entered a judgment of conviction only on the latter

16 count. As 18 U.S.C. § 2113(e) provides that any person who kills

17 another in the course of violating § 2113(a) shall be punished by

18 death or life imprisonment, and as the government had announced

19 prior to trial that it would not seek the death penalty, the

20 district court sentenced Douglas principally to life imprisonment.

21 Douglas was sentenced on January 31, 2006. The court deferred

22 decision on the matter of restitution, pending receipt of additional

23 information.

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 1 On May 3, 2006, no restitution order having yet been

2 entered, Douglas wrote to the court, contending that such an order

3 could no longer be entered against him because 18 U.S.C.

4 § 3664(d)(5) provides that a restitution order may be entered up to

5 90 days after sentencing. Douglas argued that as he had been

6 sentenced on January 31, 2006, the period within which a restitution

7 order could be entered had ended on May 1, 2006.

8 On May 5, 2006, the district court entered an order

9 rejecting the untimeliness contention, finding that Douglas was not

10 prejudiced by the delay from May 1 to May 5, and ordering him to pay

11 Brink's and Moran's father restitution totaling $11,081.44. See

12 Part II.E.2. below. An amended judgment, adding the restitution

13 order, was entered, and this appeal followed.

14 II. DISCUSSION

15 On appeal, Douglas contends principally (1) that, because

16 he was charged with an offense that was statutorily punishable by

17 death, he was entitled to representation by two attorneys pursuant

18 to 18 U.S.C. § 3005 despite the government's notification that it

19 would not seek the death penalty; (2) that the government used a

20 peremptory challenge during voir dire to discriminate against him on

21 the basis of race; (3) that there were various errors in connection

22 with the admission of the identification testimony by Vitetta and

23 Sarin; and (4) that the court improperly allowed the government to

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 1 cross-examine him--and to introduce rebuttal evidence--about his

2 postarrest response to questioning by the police in Florida, without

3 Miranda warnings, that he had possessed and disposed of Moran's gun.

4 Douglas also contends, inter alia, that the evidence was

5 insufficient to support a finding that he attempted to enter the

6 Yonkers ATMs facility and that the restitution order was untimely

7 and substantively improper. Finding no basis for reversal, we

8 affirm.

9 A. The Claim of Entitlement to Representation By Two Attorneys

10 Count One of the superseding indictment against Douglas

11 charged him with attempting to enter a banking facility with intent

12 to commit a larceny therein, in violation of 18 U.S.C. § 2113(a).

13 Count two charged that in connection with that offense, Douglas

14 killed Moran in violation of subsection (e) of that section, which

15 provides that "[w]hoever, in committing any offense defined in this

16 section, . . . kills any person, . . . shall be punished by death or

17 life imprisonment." 18 U.S.C. § 2113(e) (emphasis added).

18 The original indictment against Douglas, which also

19 charged him with violating § 2113(e), was filed on September 27,

20 2004. The first attorney appointed to represent Douglas following

21 his arrest was Paul E. Davison, Esq., of the Office of the Federal

22 Defender. On October 5, 2004, in light of the potential death

23 sentence if Douglas were convicted on count two, Davison requested

24 the appointment for Douglas, pursuant to 18 U.S.C. § 3005, of a

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 1 second attorney, one learned in the law applicable to capital cases.

2 The court granted that request by order dated October 6, 2004,

3 appointing Clinton W. Calhoun, III, Esq., who was learned in the law

4 applicable to capital cases, as an additional attorney to represent

5 Douglas.

6 By letter dated March 2, 2005, the government informed

7 Douglas and the court that it would not seek the death penalty in

8 the present case. (See also Conference Transcript, March 9, 2005,

9 at 2.) Douglas requested that the court nonetheless continue the

10 appointment of both Calhoun and Davison as his attorneys. The court

11 rejected the request, reasoning that where there was no longer a

12 potential death sentence, the services of counsel learned in the law

13 applicable to capital cases were no longer needed. The court

14 concluded that "the government only needs to pay for one lawyer from

15 this point forward . . . ." (Id. at 3.) Douglas was allowed to

16 decide which attorney would continue to represent him, and, without

17 waiving his objection to the court's ruling, he opted for Calhoun.

18 On this appeal, Douglas contends, raising an issue of

19 first impression in this Court, that the district court's refusal to

20 continue the appointment of a second attorney for him following the

21 government's notification that it would not seek the death penalty

22 violated his right under 18 U.S.C. § 3005 to be represented by two

23 attorneys and that he is therefore entitled to a new trial. We

24 disagree.

25 Section 3005 provides that when a person "is indicted for

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 1 [a] capital crime,"

2 the court before which the defendant is to be tried,
3 or a judge thereof, shall promptly, upon the
4 defendant's request, assign 2 . . . counsel, of whom
5 at least 1 shall be learned in the law applicable to
6 capital cases, and who shall have free access to the
7 accused at all reasonable hours.

8 18 U.S.C. § 3005 (emphases added). The section states plainly that

9 such death-penalty-qualified counsel is to be appointed promptly in

10 a case involving a capital crime; but it is silent as to whether the

11 court has an obligation to continue the appointment after the

12 government has announced that it does not seek the death penalty.

13 However, "the purpose of the two-attorney right is to

14 reduce the chance that an innocent defendant would be put to death

15 because of inadvertence or errors in judgment of his counsel,"

16 United States v. Waggoner, 339 F.3d 915, 918 (9th Cir. 2003)

17 (internal quotation marks omitted), cert. denied, 543 U.S. 1005

18 (2004), and all but one of our Sister Circuits that have dealt with

19 this issue have reasoned that once the government has announced that

20 it does not seek the death penalty, the case is no longer a capital

21 case, see, e.g., United States v. Casseus, 282 F.3d 253, 256 (3d

22 Cir.), cert. denied, 537 U.S. 852 (2002), and the appointment of

23 counsel learned in death penalty law may be terminated, see, e.g.,

24 United States v. Waggoner, 339 F.3d at 917-19; In re Sterling-

25 Suarez, 306 F.3d 1170, 1174-75 (1st Cir. 2002); United States v.

26 Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998), cert. denied, 525 U.S.

27 1088 (1999).

28 In United States v. Waggoner, for example, the district

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 1 court appointed death-penalty-qualified second counsel on an interim

2 basis, pending the government's determination of whether to seek the

3 death penalty. After the government announced that it would not

4 seek that penalty, the court terminated the appointment. The Ninth

5 Circuit found no error in either the conditional nature of the

6 appointment or the termination of the appointment once the death

7 penalty was no longer a potential sentence:

8 The question we address in this case is whether the
9 defendant's right to be represented by two attorneys
10 is extinguished once the threat of capital
11 punishment has been irrevocably removed from the
12 slate of available punishments.

13 In this case, the district court properly
14 concluded that the defendant was not entitled to be
15 represented by two attorneys after the government
16 filed formal notice that it did not intend to seek
17 the death penalty.

18 . . . .

19 . . . [W]hen a defendant is no longer subject
20 to "indictment" for a "capital crime" because the
21 threat that the death penalty will be imposed has
22 been eliminated, the defendant no longer has a
23 statutory right to a second court-appointed attorney
24 to defend him at the trial of the non-capital
25 offense.

26 339 F.3d at 917, 919 (emphasis added).

27 Similarly, in United States v. Grimes, in which the

28 government had "stated, on the record prior to trial, that it would

29 not seek the death penalty in this case," the Eleventh Circuit ruled

30 that the defendant "was properly denied benefits afforded to a

31 capital defendant because the Government stipulated that it would

32 not seek the death penalty and thereby transformed this case into a

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 1 non-capital proceeding." 142 F.3d at 1347. See also In re

2 Sterling-Suarez, 306 F.3d at 1175 (granting mandamus requiring the

3 district court to appoint death-penalty-qualified second counsel

4 promptly, rather than wait for a decision by the government as to

5 whether to seek or eschew the death penalty, stating that "there are

6 practical reasons to treat the case as capital from indictment

7 forward, for purposes of appointing learned counsel, until it

8 becomes clear that the death penalty is no longer an option" and the

9 matter is no longer a "capital case") (first emphasis in original;

10 second emphasis ours); United States v. Casseus, 282 F.3d at 256

11 (holding that any error in the district court's refusal to appoint

12 death-penalty-qualified second counsel was harmless in light of the

13 facts that during plea negotiations the defendants were not

14 pressured by the possibility of death sentences and that the

15 government announced prior to trial that it would not seek the death

16 penalty; "after the government declared that it would not seek the

17 death penalty, the appellants were no longer capital defendants").

18 Other Circuits had similarly held that § 3005 did not

19 require the appointment of a second attorney where a sentence of

20 death was precluded by the Supreme Court's decision in Furman v.

21 Georgia, 408 U.S. 238 (1972), which invalidated the death penalty

22 under statutory schemes then in effect. See, e.g., United States v.

23 Shepherd, 576 F.2d 719, 727-29 (7th Cir.) (§ 3005 "does not apply

24 because there is no possibility that the death penalty can be

25 imposed"), cert. denied, 439 U.S. 852 (1978); United States v.

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 1 Weddell, 567 F.2d 767, 770-71 (8th Cir. 1977) (in light of Furman,

2 the case "lost its capital nature as charged in the indictment. It

3 follows that the district court did not err in rejecting Weddell's

4 request for the appointment of a second attorney pursuant to 18

5 U.S.C. § 3005."), cert. denied, 436 U.S. 919 (1978).

6 So far as we are aware, only the Fourth Circuit has taken

7 an opposite view, although the precise contours of that Circuit's

8 views of the scope of § 3005 are not entirely clear. In United

9 States v. Boone, 245 F.3d 352, 358-61 (4th Cir. 2001) ("Boone"), in

10 which one count charged the defendant with an offense that could be

11 punished by death and the district court did not appoint death-

12 penalty-qualified counsel, the Fourth Circuit ordered a new trial on

13 that count despite the fact that the government had not sought the

14 death penalty. The Boone court ruled that the § 3005 right to the

15 appointment of death-penalty-qualified counsel in a case where the

16 death penalty may be imposed attaches upon indictment and that that

17 right is absolute and not extinguished, even when the government

18 does not in fact seek the death penalty. See id. at 358-59.

19 Although in Boone, the court ruled that the error in

20 failing to appoint such counsel could not be deemed harmless, see

21 id. at 361 n.8, the Fourth Circuit viewed the rights created by

22 § 3005 as less absolute in United States v. Robinson, 275 F.3d 371,

23 383-84 (4th Cir.) ("Robinson"), cert. denied, 535 U.S. 1006 (2002),

24 declining to reverse a conviction where death-penalty-qualified

25 counsel had been appointed but the appointment was terminated--

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 1 without objection--after the government elected not to seek the

2 death penalty. In Robinson, the court stated that "[u]nder Boone,

3 the failure to provide Robinson with two attorneys throughout trial

4 was plain error even though the Government withdrew its notice of

5 intent to seek the death penalty," id. at 384 (emphasis added); but

6 the Robinson court concluded that "the failure to provide a non-

7 capital defendant with the benefit of a provision designed to

8 provide additional protection to capital defendants[ ]did not affect

9 the fairness, integrity, or public reputation of judicial

10 proceedings," id. (emphases in original); see also Boone, 245 F.3d

11 at 360 ("Surely, if the government decides not to seek the death

12 penalty, then the penalty phase is won before trial . . . .").

13 In any event, we agree with the majority of the federal

14 courts of appeals that once the government has formally informed the

15 court and the defendant of its intention not to seek the death

16 penalty, the matter is no longer a capital case within the meaning

17 of § 3005 and that section does not require the district court to

18 continue the appointment of a second attorney. The district court

19 in the present case properly appointed such counsel for Douglas upon

20 his request shortly after the filing of the original indictment; and

21 it was not error for the court to rule that after the government's

22 renunciation of any intent to seek the death penalty, Douglas was

23 not entitled to representation by more than one government-funded

24 attorney.

25 Finally, we emphasize that the question on this appeal is

- 21 -
 1 whether the district court erred in requiring Douglas to proceed

2 with only one government-funded attorney once it became clear that

3 he would not be subject to the death penalty. Our conclusion that

4 § 3005 does not entitle a defendant to a second attorney under these

5 circumstances would not preclude a district court, in its

6 discretion, from maintaining the dual appointment in a future case

7 out of a "concern for fairness at the trial of a criminal offense,"

8 United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976). "[N]o

9 right ranks higher than the right of the accused to a fair trial."

10 United States v. King, 140 F.3d 76, 81 (2d Cir. 1998) (internal

11 quotation marks omitted). In this case, the district court

12 discontinued Davison's appointment nine months before the trial was

13 scheduled to begin, leaving more than enough time for Calhoun,

14 Douglas's remaining attorney, to get ready for trial and undertake

15 whatever responsibilities had been shouldered by Davison. Deciding

16 when, if ever, the retention of both counsel is necessary in the

17 interest of justice after the government has announced it will not

18 seek the death penalty is an exercise best left to the broad

19 discretion of the district court.

20 B. The Government's Use of Peremptory Challenges

21 Douglas, a man of color originally from Jamaica, contends

22 that under Batson v. Kentucky, 476 U.S. 79 (1986), he is entitled to

23 a new trial on the ground that the government, in exercising a

24 peremptory challenge during jury selection, discriminated against

- 22 -
 1 him on the basis of race, in violation of his right to equal

2 protection. This claim is based on the peremptory challenge by the

3 government to a prospective juror (apparently a man of color) who

4 had stated in response to the court's initial background questions

5 that he was from Jamaica.

6 In Hernandez v. New York, 500 U.S. 352 (1991), the Supreme

7 Court discussed the framework for analyzing a defendant's claim of

8 discriminatory use of peremptory challenges, established by Batson

9 in the context of a claim of discrimination based on race:

10 . . . Batson . . . outlined a three-step
11 process for evaluating claims that a prosecutor has
12 used peremptory challenges in a manner violating the
13 Equal Protection Clause. 476 U.S., at 96-98. . . .
14 First, the defendant must make a prima facie showing
15 that the prosecutor has exercised peremptory
16 challenges on the basis of race. Id., at 96-97.
17 Second, if the requisite showing has been made, the
18 burden shifts to the prosecutor to articulate a
19 race-neutral explanation for striking the jurors in
20 question. Id., at 97-98. Finally, the trial court
21 must determine whether the defendant has carried his
22 burden of proving purposeful discrimination. Id.,
23 at 98.

24 Hernandez, 500 U.S. at 358-59 (plurality opinion).

25 As to the prosecution's burden to proffer a neutral

26 explanation, the Court has stated that "[u]nless a discriminatory

27 intent is inherent in the prosecutor's explanation, the reason

28 offered will be deemed race neutral." Purkett v. Elem, 514 U.S.

29 765, 767-68 (1995) (internal quotation marks omitted).

30 Discriminatory intent may be found to be inherent where the proffer

31 of a supposedly race-neutral explanation has a racial ingredient.

32 See, e.g., Walker v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005)

- 23 -
 1 (ordering a new trial where the prosecutor began her proffer by

2 stating that "'one of the main things [she] had a problem with was

3 that this [wa]s an individual who was a Black man with no kids and

4 no family'" (quoting prosecutor) (emphasis in Walker)).

5 Since "'a finding [as to whether there was] intentional

6 discrimination is a finding of fact,'" and "the trial court findings

7 . . . in this context . . . 'largely will turn on evaluation of

8 credibility,'" Hernandez, 500 U.S. at 364, 365 (plurality opinion)

9 (quoting Batson, 476 U.S. at 98 n.21) (other internal quotation

10 marks omitted), the trial court's finding as to whether the

11 prosecutor's reason was race-neutral may be overturned only if that

12 finding is clearly erroneous, see Hernandez, 500 U.S. at 369

13 (plurality opinion); id. at 372, 375 (concurring opinion of

14 O'Connor, J.) ("I agree with the plurality that we review for clear

15 error the trial court's finding as to discriminatory intent, and

16 agree with its analysis of this issue." "[I]f . . . the trial court

17 believes the prosecutor's nonracial justification, and that finding

18 is not clearly erroneous, that is the end of the matter."). It is

19 well established that "'[w]here there are two permissible views of

20 the evidence, the factfinder's choice between them cannot be clearly

21 erroneous,'" id. at 369 (plurality opinion) (quoting Anderson v.

22 Bessemer City, 470 U.S. 564, 574 (1985)).

23 Where a prosecutor has articulated multiple reasons for

24 his peremptory challenge, one of which is race, "dual motivation"

25 analysis is appropriate. See, e.g., Howard v. Senkowski, 986 F.2d

- 24 -
 1 24, 24 (2d Cir. 1993). In those circumstances, the Batson claim

2 should be rejected if the prosecutor persuades the court "that the

3 challenges would have been exercised for race-neutral reasons even

4 if race had not been a factor." Id.

5 The record in the present case persuades us that the

6 district court permissibly found that the government articulated,

7 and possessed, a neutral reason for excusing the juror in question

8 and that he would have been excused whether or not race was a

9 consideration. In conducting the voir dire, the district judge

10 determined that several prospective jurors had actually served on a

11 jury; one member of this group was Mr. Stewart, who had previously

12 stated that he was from Jamaica. The court stated that each member

13 of the group would be asked to describe his or her jury service

14 without disclosing the verdict, if any:

15 Each of you I want to answer the following

16 question:

17 When were you a juror?

18 What kind of a case?

19 Did the jur[y] reach a verdict? Yes or no.
20 Not what the verdict was. Did you reach a verdict?
21 Yes or no.

22 Or if the case settled or for whatever reason
23 you didn't deliberate, just say, we didn't
24 deliberate. Okay?

25 (Jury Selection Transcript ("J.S. Tr."), at 67 (emphasis added).)

26 The court then asked each member of the group in turn to answer

27 these questions. When the court called on Mr. Stewart, he

- 25 -
 1 responded: "It was three years ago and there was a not-guilty

2 verdict." (Id. at 68 (emphasis added).) The judge stated: "There

3 was a verdict. Thank you. I don't want to know what the verdict

4 is, people, I just want to know if you reached a verdict." (Id.)

5 The government used its first peremptory challenge to

6 excuse Mr. Stewart, and Douglas promptly made a Batson objection.

7 The court conducted the following inquiry:

8 THE COURT: . . . . [A p]rima faci[e] case of
9 discrimination in jury selection is established when
10 a defendant is a member of a cognizable racial
11 group, the prosecutor uses a peremptory challenge to
12 remove members of that group from the jury and these
13 facts and other relevant circumstances raise an
14 inference the prosecutor has excluded jurors on
15 account of their race.

16 I assume this is your challenge, Mr. Calhoun?

17 MR. CALHOUN: Yes, it is, your Honor.

18 . . . .

19 . . . Your Honor, we have so few persons of
20 color to deal with in this group of jurors . . .

21 . . . .

22 . . . [I]n listening to Mr. Stewart's . . .
23 answers to your Honor's questions and watching him
24 during jury selection, I discern no valid basis
25 . . . why he should be challenged. The only remote
26 connection I saw was that he's from Jamaica, but I
27 don't know if national origin means anything at all.
28 I don't see any basis why he should be challenged,
29 and I ask the court to determine whether there is a
30 racially neutral explanation for why the government
31 challenged him.

32 THE COURT: Mr. Ritchin?

33 MR. RITCHIN [Assistant United States Attorney
34 ("AUSA")]: Your Honor, I would point to a number of
35 factors.

- 26 -
 1 First, . . . there is no pattern here. This is
2 the Government's first strike.

3 The second of which is the factor that Mr.
4 Calhoun pointed to, he is from the same country as
5 the defendant and there's some concern that he
6 might, therefore, have sympathy for the defendant.

7 A third factor is that, despite the court's
8 instruction that . . . jurors not . . . give the
9 verdict of any case on which they have sat, Mr.
10 Stewart did provide that verdict in response to the
11 question indicating some inability to follow
12 directions.

13 And the fourth factor I suppose is the answer
14 he gave, which, for a prosecutor, gives some pause.

15 THE COURT: Correct. I anticipated that this
16 was going to happen, and you're going to have to
17 convince me, Mr. Calhoun, that the reason Mr.
18 Stewart was challenged was something other than he
19 announced to the world that he was on a jury, that
20 he voted to acquit a defendant. If I were a
21 prosecutor, he's the first guy I'd want off.

22 MR. CALHOUN: Well, I don't know if I can
23 convince anybody of that, but I think it's far more
24 likely that he misunderstood your Honor's
25 instruction about not revealing the verdict. I
26 don't know why--without knowing anything about the
27 case and anything about the evidence that was
28 presented in that case, it may have been a perfectly
29 fine verdict.

30 THE COURT: May have been. That's not to say
31 that a prosecutor wouldn't want such a person off
32 the jury, whether the person was black, white or
33 purple.

34 MR. CALHOUN: I just don't think that the fact
35 that he was on some jury somewhere sometime in the
36 past and rendered a not-guilty verdict or
37 participated in a verdict that was not guilty, I
38 don't think it means anything at all, and I don't
39 see why it would be any factor at all in determining
40 whether to challenge somebody.

41 (J.S. Tr. 96-99 (emphases added).)

- 27 -
 1 Although the court noted that one of the reasons given by

2 the AUSA--that Mr. Stewart was from the same country as Douglas--was

3 not neutral, it found that the explanation that Mr. Stewart had

4 served on a jury that returned a verdict of acquittal was a neutral

5 reason and one that the court found to be genuine--and, indeed, so

6 predictable a basis for peremptory challenge that it was the impetus

7 for the court's instruction that the prospective jurors not disclose

8 their prior verdicts:

9 THE COURT: . . . . As far as I'm concerned,
10 in this instance, the government has given a race-
11 neutral reason for challenging Mr. Stewart. I
12 reiterate, the minute he said that, I said, I see
13 what's coming, a challenge and a Batson.

14 But Mr. Stewart, in response to the court's
15 question about prior jury service, indicated that he
16 was on a jury that reached a verdict. He further
17 indicated it was a criminal case, and then, contrary
18 to my instruction, he announced that the jury had
19 acquitted in that case.

20 It's entirely possible, as Mr. Calhoun says,
21 that he misunderstood my instruction; however, he
22 did give that information, and if I were a
23 prosecutor, I would want such an individual off the
24 jury myself. That is the reason that I don't ask
25 that question. No Judge I know wants that
26 information out because acquitters tend to be people
27 that the government does not want, the prosecution
28 does not want. Convictors . . . tend to be . . .
29 people that the defendant doesn't want.

30 It's an absolutely race-neutral reason for
31 striking him from the jury, the same-country
32 argument is not, and the inability to follow
33 instructions is not persuasive. But the fact that
34 the defendant was on the jury that it voted to
35 acquit is a completely race-neutral reason striking
36 him from the jury and the Batson challenge is
37 disallowed.

38 (J.S. Tr. at 99-100 (emphases added).)

- 28 -
 1 Although Douglas argues that the government did "not put

2 forth clearly" that "Mr. Stewart had been on [a] jury that voted for

3 acquittal" as one of its reasons for excusing Mr. Stewart (Douglas

4 brief on appeal at 40), the district court plainly so understood the

5 AUSA's articulation of his "fourth factor"--as apparently did

6 defense counsel, who argued that "it may have been a perfectly fine

7 verdict" (J.S. Tr. 98). Plainly, the AUSA's concern for the nature

8 of the verdict was sufficiently clear.

9 Further, the record quoted above shows that the trial

10 court found the AUSA's neutral explanation to be credible. The

11 finding that individuals of any race or color who have served on

12 juries that acquitted "tend to be people the government does not

13 want" is a permissible view, and the court's finding that the

14 government would have used a peremptory challenge to excuse Mr.

15 Stewart regardless of race is not clearly erroneous. We conclude

16 that the court properly rejected Douglas's Batson challenge.

17 Finally, to the extent that Douglas may be suggesting that

18 he was denied equal protection on the ground that the government

19 discriminated against him on the basis of national origin, we note

20 that while Batson has been extended beyond race to apply to

21 peremptory challenges based on ethnicity, see Hernandez, 500 U.S.

22 352, and gender, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,

23 128-29 (1994), this Court has not decided the issue of whether

24 national origin "is a cognizable [classification] for Batson

25 protection." Rodriguez v. Schriver, 392 F.3d 505, 511 n.9 (2d Cir.

- 29 -
 1 2004). Assuming, however, that a peremptory challenge based

2 entirely on national origin would violate equal protection, we

3 conclude that a national-origin-based Batson challenge here fails

4 for the reasons stated above, i.e., that the government had a

5 neutral reason for excusing Mr. Stewart and that he would have been

6 excused even if national origin had not been a consideration.

7 C. Challenges to the Identification Testimony

8 Douglas makes several claims of error with respect to the

9 admission of the identification testimony of Vitetta and Sarin. He

10 contends that their identifications of him were unreliable because

11 they resulted from impermissibly suggestive photographic arrays;

12 that the court erred in excluding from evidence an affidavit signed

13 by Sarin that cast doubt on her identification of Douglas; and that

14 the government suppressed evidence contradicting or impeaching those

15 witnesses's identifications, in violation of Brady v. Maryland, 373

16 U.S. 83 (1963). We find no merit in these contentions.

17 1. The Alleged Suggestiveness of the Photographic Array

18 As described in Part I.A. above, Vitetta identified

19 Douglas at trial as the man he had seen in the parking lot just

20 after Moran's body had been dragged on the ground and put in the

21 trunk of the Toyota; and both Vitetta and Sarin testified that they

22 had identified Douglas from the photographic array that they were

23 shown in the days following April 22. Prior to trial, Douglas moved

24 unsuccessfully to suppress those photographic identifications and to

- 30 -
 1 preclude any in-court identification of him on the ground that the

2 photographic array was "impermissibly suggestive and created a

3 significant risk of misidentification" (Memorandum in Support of

4 Defendant's Pretrial Motions, dated February 4, 2005, at 9). On

5 this appeal, Douglas contends that the district court erred in

6 summarily denying this aspect of his suppression motion, arguing

7 principally that (a) one of the photos was a picture of "a known

8 murderer" that "had been prominently displayed in tabloids in the

9 New York area" (Douglas brief on appeal at 35), and (b) the

10 background colors in the photos made the picture of Douglas stand

11 out from the others. His contentions are meritless.

12 A defendant's right to due process includes the right not

13 to be the object of suggestive police identification procedures that

14 make an identification unreliable. See, e.g., Manson v. Brathwaite,

15 432 U.S. 98, 106 (1977) ("Brathwaite"); Neil v. Biggers, 409 U.S.

16 188, 198 (1972) ("Biggers"); Simmons v. United States, 390 U.S. 377,

17 384 (1968). Generally, a witness will not be allowed to make an

18 in-court identification if the authorities' pretrial photographic

19 identification procedures were "so impermissibly suggestive as to

20 give rise to a very substantial likelihood of irreparable

21 misidentification." Simmons, 390 U.S. at 384 (emphasis added). And

22 "[w]hile th[at] phrase was coined as a standard for determining

23 whether an in-court identification would be admissible in the wake

24 of a suggestive out-of-court identification, with the deletion of

25 'irreparable' it serves equally well as a standard for the

- 31 -
 1 admissibility of testimony concerning the out-of-court

2 identification itself." Biggers, 409 U.S. at 198. Thus, "in

3 determining the admissibility of identification testimony" for

4 either pretrial or in-court identification, "reliability is the

5 linchpin . . . ." Brathwaite, 432 U.S. at 106 n.9, 114.

6 "We review the district court's determination of the

7 admissibility of identification evidence for clear error." United

8 States v. Mohammed, 27 F.3d 815, 821 (2d Cir.), cert. denied, 513

9 U.S. 975 (1994). We may review the photographic array itself to

10 assess its fairness. See, e.g., United States v. Jacobowitz, 877

11 F.2d 162, 168 (2d Cir.), cert. denied, 493 U.S. 866 (1989).

12 We see no merit in Douglas's contention that the array was

13 tainted by the presence of a picture of John Royster, a convicted

14 killer of some notoriety. The frequent appearance of Royster's

15 picture in New York area newspapers had occurred some eight years

16 earlier, and the district judge noted, "I did not recognize this

17 photograph, although I regularly read the newspapers . . . ." Order

18 dated March 23, 2005, at 8. The district court stated that "if a

19 witness actually recognized Royster, that witness presumably would

20 not have selected him, and thus would have viewed the array as a

21 five-person array rather than a six-person array. There is nothing

22 inherently improper about a five-person array." Id. We agree.

23 Further, we have reviewed the photographic array and see

24 no hint of suggestiveness. All are head-shot photographs, all of

25 brown-skinned, non-bespectacled men in roughly the same age group,

- 32 -
 1 with short-cropped hair, non-receding hairlines, and thin or trimmed

2 mustaches. Only one of the six (Royster) has a thin face,

3 suggesting a thinner build than the others. As to the background

4 colors of the photos, no two are the same, and no picture stands out

5 because of its background color. The district court found that

6 "[i]t simply cannot be said that 'the picture of the accused . . .

7 so stood out from all [of] the other photographs as to suggest to an

8 identifying witness that [the accused] was more likely to be the

9 culprit.'" Id. (quoting Jarrett v. Headley, 802 F.2d 34, 41 (2d

10 Cir. 1986) (other internal quotation marks omitted)). We see no

11 error in that finding.

12 Given the lack of any suggestiveness in the photo array,

13 the identification testimony of Vitetta and Sarin was admissible at

14 trial "without further inquiry into the reliability of the pretrial

15 identification[s]," United States v. Maldonado-Rivera, 922 F.2d 934,

16 973 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991), of Douglas

17 as the man Vitetta saw standing behind the car into whose trunk

18 Moran's body had just been dumped and as the man Sarin saw driving

19 the SUV out of the parking lot. And if there had been any error in

20 not conducting a further inquiry as to the reliability of those

21 identifications, we would conclude that such an error was without a

22 doubt harmless in light of the trial testimony of Douglas himself,

23 described in Parts I.B. and I.C. above, that it was he who drove the

24 SUV out of the parking lot, and that during his dealings with

25 Moran's body, he had seen Vitetta watching him.

- 33 -
 1 2. The Exclusion of Sarin's Affidavit

2 Douglas also contends that the trial court erred in

3 excluding from evidence a Sarin affidavit that stated that the

4 driver of the SUV might have been white. Evidentiary rulings of the

5 district court are reviewed for abuse of discretion, see, e.g., Old

6 Chief v. United States, 519 U.S. 172, 174 n.1 (1997); United States

7 v. Abel, 469 U.S. 45, 54-55 (1984), and we see no abuse of

8 discretion here.

9 In a hearing outside the presence of the jury, Sarin was

10 questioned about an affidavit she had signed on the afternoon of

11 April 22, in which the driver of the SUV was described as a

12 "'heavyset male, possibly white'" (Tr. 124). She testified, "I was

13 asked if he was possibly, could he have possibly been white. I

14 said, he was possibly white but I was confident that he was a black

15 male." (Id.)

16 In the presence of the jury, Sarin testified, as described

17 in Part I.A. above, that the driver of the SUV was a heavyset, black

18 male with dark facial hair, and that she had selected the picture of

19 Douglas from the photographic array as the driver of the SUV. On

20 cross-examination, Douglas's attorney was allowed to have Sarin read

21 from her April 22 affidavit the statement, "'I saw a heavyset male,

22 possibly white, with a beard, driving the SUV.'" (Tr. 190.) When

23 defense counsel asked whether Sarin had "said heavyset male,

24 possibly white?" she responded, "Possibly white, yes." (Id. at

25 191.)

- 34 -
 1 On redirect examination, Sarin testified that her April 22

2 affidavit had been prepared by the police detective interviewing

3 her; that she did not tell the detective what words to use in the

4 affidavit; that she had not read the typed affidavit carefully for

5 the accuracy of its contents before she signed it; and that she did

6 not notice that its only reference to the race of the person she was

7 describing was "possibly white." (Id. at 193-94.) Sarin testified

8 that when she was asked by the detective to describe the SUV's

9 driver, she had "said he was a heavyset, black male"; that when

10 asked if the driver could have been white, she had said "possibly";

11 and that it was not her recollection, either on April 22 or at the

12 time of trial, that the driver of the SUV was white. (Id. at 194.)

13 On recross-examination, defense counsel brought out that

14 Sarin's statement was taken just hours after the events on April 22;

15 that she had given the detective the information about what she had

16 seen; that she knew her statements were of importance to the police

17 investigation; that she had wanted to be accurate; that "the

18 document recites that the driver [Sarin] saw was a heavyset male,

19 possibly white" (id. at 197); and that Sarin had signed the

20 affidavit under penalty of perjury.

21 Plainly, Douglas was allowed at trial to cross- and

22 recross-examine Sarin fully about the affidavit. He was allowed to

23 have her read aloud the portion of the affidavit that said that she

24 had seen a "'heavyset male, possibly white, with a beard, driving

25 the SUV.'" (Id. at 190.) And he was allowed to quote the "heavyset

- 35 -
 1 male, possibly white" language to the jury repeatedly (see, e.g.,

2 id. at 190, 191, 197). In light of the latitude given to Douglas to

3 examine Sarin repeatedly with respect to that phrase in the

4 affidavit, we see no abuse of discretion in the court's refusal to

5 allow Douglas also to introduce the affidavit itself.

6 3. The Posttrial Brady Motion

7 Following his conviction, Douglas unsuccessfully moved for

8 a new trial on the ground that the government had failed to disclose

9 to him prior statements by Vitetta and Sarin and notes of their

10 interviews by agents of the Federal Bureau of Investigation ("FBI")

11 (collectively "the Vitetta/Sarin documents") until the Friday before

12 the Monday on which the trial began, thereby violating his due

13 process rights as declared in Brady v. Maryland, 373 U.S. 83, and

14 its progeny, e.g., Giglio v. United States, 405 U.S. 150 (1972). He

15 pursues this contention on appeal.

16 Under Brady and its progeny, "the suppression by the

17 prosecution of evidence favorable to an accused . . . violates due

18 process where the evidence is material" to the accused's guilt or

19 punishment, Brady, 373 U.S. at 87. Materiality encompasses the

20 notions that the suppressed evidence is favorable to the accused and

21 that he was prejudiced by its suppression. See, e.g., Kyles v.

22 Whitley, 514 U.S. 419, 434 (1995) ("the constitutional duty is

23 triggered by the potential impact of favorable but undisclosed

24 evidence"). Thus, as discussed further below, "[t]here are three

- 36 -
 1 components of a true Brady violation: The evidence at issue must be

2 favorable to the accused, either because it is exculpatory, or

3 because it is impeaching; that evidence must have been suppressed by

4 the [prosecution], either willfully or inadvertently; and prejudice

5 must have ensued," Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

6 Where a defendant's "Brady claim was raised in a motion

7 for a new trial pursuant to Rule 33 of the Federal Rules of Criminal

8 Procedure, we review the denial of the motion for abuse of

9 discretion." United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002)

10 ("Gil"). For the reasons that follow, the district court did not

11 abuse its discretion in concluding that Douglas established none of

12 the three components of his Brady claim.

13 To begin with, Douglas does not complain that the

14 Vitetta/Sarin documents were not disclosed, but only that he

15 received them just one business day (three calendar days) before

16 trial. The record in this case does not lend itself to the

17 conclusion that the timing of the government's disclosure of these

18 documents constituted their "suppression" within the meaning of

19 Brady.

20 With respect to when the prosecution must make
21 a disclosure required by Brady, the law . . .
22 appears to be settled. Brady material must be
23 disclosed in time for its effective use at trial,
24 see, e.g., Leka v. Portuondo, 257 F.3d 89, 100 (2d
25 Cir.2001), or at a plea proceeding, see United
26 States v. Persico, 164 F.3d 796, 804 (2d Cir.1999);
27 Tate v. Wood, 963 F.2d 20, 24 (2d Cir.1992).

28 In re United States (Coppa), 267 F.3d 132, 135 (2d Cir. 2001)

29 (emphasis in original). Brady material that is not "disclos[ed] in

- 37 -
 1 sufficient time to afford the defense an opportunity for use" may be

2 deemed suppressed within the meaning of the Brady doctrine. Leka v.

3 Portuondo, 257 F.3d 89, 103 (2d Cir.2001). But

4 as long as a defendant possesses Brady evidence in
5 time for its effective use, the government has not
6 deprived the defendant of due process of law simply
7 because it did not produce the evidence sooner.
8 There is no Brady violation unless there is a
9 reasonable probability that earlier disclosure of
10 the evidence would have produced a different result
11 at trial. . . .

12 In re United States (Coppa), 267 F.3d at 144. In Gil, we held that

13 a document that was "exculpatory and impeaching Brady material,"

14 given to the defendant on the Friday before a Monday trial, was in

15 effect suppressed within the meaning of Brady as it was buried in

16 the midst of "five reams of paper labeled '3500 material,'" Gil, 297

17 F.3d at 103, 106.

18 Although Douglas relies on Gil for his contention that the

19 Vitetta/Sarin documents were suppressed, Gil is readily

20 distinguishable. In that case, the documents delivered to the

21 defendant on the Friday before trial consisted of more than 600

22 exhibits, totaling some 2,700 pages. Further, Gil's focus was a

23 memorandum written by and to persons other than the witness whose

24 testimony it would impeach; and the entry for that document in the

25 41-page index to the exhibits identified the document only by the

26 initials of the witness, without mention of the names of its author

27 or addressee. We concluded that, given the delivery of the document

28 in that obscure fashion, "the defense was not in a position to read

29 it, identify its usefulness, and use it." Id.

- 38 -
 1 Here, in contrast, the documents given to Douglas on the

2 Friday before trial totaled only some 290 pages. They were grouped

3 according to the witness to which they pertained and were easily

4 recognizable as such, with the documents relating to a given witness

5 fastened with a clip. The Vitetta/Sarin documents related only to

6 the statements of Vitetta and Sarin themselves, respectively, not to

7 statements by others. The documents relating to Vitetta totaled

8 just 11 pages. The documents relating to Sarin totaled 7 pages,

9 plus an eighth page that was inadvertently omitted on Friday and was

10 sent by fax on the following afternoon. The 19 pages of

11 Vitetta/Sarin documents were easily found and fathomed. We cannot

12 conclude that they were suppressed.

13 Nor did Douglas establish that he was prejudiced by not

14 having received the Vitetta/Sarin documents earlier. As to Vitetta,

15 Douglas focuses in particular on an FBI report and handwritten notes

16 stating that when Vitetta first entered the parking lot to work on

17 his car, he saw the Toyota idling and thought the man he saw in the

18 driver's seat was darker-skinned than the man he saw standing behind

19 the Toyota just after Moran's body had been dumped into it. As to

20 Sarin, Douglas complains particularly about not having had the

21 affidavit discussed in Part II.C.2. above, which stated that the man

22 Sarin had seen driving the SUV out of the parking lot was "possibly

23 white," along with an FBI report and notes to the same effect.

24 Douglas argues first that these documents could be used to

25 impeach the credibility of Vitetta and Sarin by "clearly

- 39 -
 1 discredit[ing] their trial testimony that Douglas was the one and

2 only person they saw at the scene." (Douglas brief on appeal at

3 56.) But that impeachment potential reveals no prejudice, for the

4 district court noted that the documents were in fact used to attempt

5 the impeachment of both witnesses on cross-examination, to emphasize

6 discrepancies on summation, and to argue on summation substantively

7 that there was another person at the crime scene. See Decision

8 Denying Motion for a New Trial, dated January 30, 2006 ("Decision

9 Denying New Trial"), at 16. The court observed that "the

10 information contained in the supposedly suppressed documents . . .

11 was used at trial, to the best possible effect." Id.

12 Douglas also argues that late disclosure of the

13 Vitetta/Sarin documents deprived him of the opportunity "to follow

14 up on any leads from the descriptions or from Vitetta or Sarin"

15 (Douglas brief on appeal at 57). The district court, in rejecting

16 this argument in Douglas's new-trial motion, noted that Douglas

17 "made no proffer of any defense efforts made to locate or speak with

18 Vitetta or Sarin, in person or by telephone, in the four days

19 between disclosure of their prior statements and their testimony,"

20 and that Douglas "did not seek an adjournment of the proceedings."

21 Decision Denying New Trial at 17. More importantly, we note that

22 Douglas provides no hint as to what sort of "leads" could have been

23 gleaned from the Vitetta/Sarin documents; and none come to mind,

24 given Douglas's testimony that, inter alia, he knew who had killed

25 Moran but just did not know the man's name.

- 40 -
 1 Finally, Douglas did not establish that the information in

2 the Vitetta/Sarin documents was material.

3 [The] touchstone of materiality is a reasonable
4 probability of a different result, and the adjective
5 is important. The question is not whether the
6 defendant would more likely than not have received a
7 different verdict with the evidence, but whether in
8 its absence he received a fair trial, understood as
9 a trial resulting in a verdict worthy of confidence.
10 A reasonable probability of a different result is
11 accordingly shown when the government's evidentiary
12 suppression undermines confidence in the outcome of
13 the trial.

14 Kyles, 514 U.S. at 434 (internal quotation marks omitted); see also

15 Leka v. Portuondo, 257 F.3d at 104.

16 [S]trictly speaking, there is never a real "Brady
17 violation" unless the nondisclosure was so serious
18 that there is a reasonable probability that the
19 suppressed evidence would have produced a different
20 verdict.

21 Strickler, 527 U.S. at 281.

22 The contents of the Vitetta/Sarin documents plainly do not

23 meet this test. Although Vitetta was recorded by one investigator

24 as having stated that he had thought the man in the idling Toyota

25 was darker-skinned than the man he saw standing behind the Toyota

26 just after Moran's body was put in the trunk, Vitetta testified that

27 upon seeing Douglas's picture in the photographic array he realized

28 they were the same man because the facial characteristics were the

29 same. Moreover, even if they were not the same man, Vitetta's prior

30 statement provided no substantive support for Douglas's version of

31 the events, for (1) Vitetta said he saw only one person in the

32 idling Toyota, whereas in Douglas's version of the events, both the

- 41 -
 1 unnamed man and Moran were in that vehicle; and (2) whereas Vitetta

2 had stated that the dark-skinned man was in the driver's seat of the

3 Toyota, according to Douglas's testimony the unnamed man--the only

4 person whom Douglas described as darker-skinned than himself--forced

5 Moran to drive the Toyota. Thus, the prior Vitetta statement was

6 inconsistent with Douglas's own scenario.

7 Similarly, to the extent that Sarin had said that the

8 driver of the SUV was "possibly white," that statement provided no

9 substantive support for Douglas's defense. In his version of the

10 events, Douglas did not mention any white person. Further, all

11 Sarin saw, according to her testimony and the documents, was a man

12 backing the SUV (whose licence plate she noted) out of a parking

13 space and driving it out of the parking lot. Sarin maintained at

14 trial and in a preliminary hearing that she had said, and was

15 confident, that the driver was a heavyset black man; she had

16 selected the picture of Douglas as the driver; and Douglas himself

17 testified that he had driven the SUV out of the lot.

18 In sum, the contents of the Vitetta/Sarin documents were

19 not favorable to Douglas for they were inconsistent with his version

20 of the events, and they provide no basis for finding any reasonable

21 probability that earlier disclosure of those documents would have

22 produced a different verdict. The district court properly rejected

23 Douglas's Brady claim.

24 D. The Challenge to the Impeachment of Douglas with His
25 Postarrest, Pre-Miranda-Warnings Statement that He Had Disposed

- 42 -
 1 of Moran's Gun

2 Prior to trial, Douglas moved to suppress, inter alia, the

3 statement he made to police officers in Florida that he had thrown

4 Moran's gun off a bridge. In response to that motion, the

5 government acknowledged that Douglas had not been advised of his

6 Miranda rights prior to being questioned as to the whereabouts of

7 the gun (see Government's Memorandum of Law in Opposition to Pre-

8 Trial Motions of Paul Ryan Douglas, dated February 25, 2005, at 4),

9 and it stated that that statement "will not be offered by the

10 Government in its case in chief" (id. at 7).

11 At trial, the government made no reference to that

12 statement in its case-in-chief. However, after Douglas testified to

13 his version of the events of April 22, including his testimony that

14 he put Moran's body into the trunk of Moran's car but had had no

15 role in assaulting or killing Moran, and his testimony that he freed

16 himself from the control of the unnamed man by getting the shotgun

17 from the back of the SUV, the government sought to cross-examine

18 Douglas as to whether Moran was armed and what had happened to

19 Moran's gun, and to impeach him (through both cross-examination and

20 rebuttal evidence) with his statement to the Florida police that he

21 had thrown Moran's gun off a bridge. The trial court, after

22 receiving briefing from the parties, ruled that the government's

23 proposed cross-examination was permissible and its rebuttal evidence

24 admissible, citing, inter alia, United States v. Payton, 159 F.3d

25 49, 58 (2d Cir. 1998) ("When a defendant offers an innocent

- 43 -
 1 explanation" for his conduct, "he 'opens the door' to questioning

2 into the truth of his testimony, and the government is entitled to

3 attack his credibility on cross-examination."). Douglas contends

4 that this was error; we disagree.

5 "It is essential . . . to the proper functioning of the

6 adversary system that when a defendant takes the stand, the

7 government be permitted proper and effective cross-examination in an

8 attempt to elicit the truth." United States v. Havens, 446 U.S.

9 620, 626-27 (1980). Thus, the Supreme Court has "repeatedly

10 insisted that when defendants testify, they must testify truthfully

11 or suffer the consequences." Id. at 626 ("reject[ing] the notion

12 that the defendant's constitutional shield against having illegally

13 seized evidence used against him could be 'perverted into a license

14 to use perjury by way of a defense, free from the risk of

15 confrontation with prior inconsistent utterances'" (quoting Harris

16 v. New York, 401 U.S. 222, 226 (1971))). Accordingly, statements

17 taken from a defendant in violation of his Miranda rights, though

18 they may not be introduced by the government during its case-in-

19 chief, are nonetheless admissible to impeach statements made by the

20 defendant in the course of his testimony. See, e.g., Harris, 401

21 U.S. at 226 (admissible to impeach direct testimony); Oregon v.

22 Hass, 420 U.S. 714, 721-22 (1975) (same); see also Havens, 446 U.S.

23 at 627-28 (evidence seized in violation of the defendant's Fourth

24 Amendment rights is admissible to impeach testimony given by the

25 defendant on cross-examination). Cross-examination questions with

- 44 -
 1 respect to a defendant's otherwise privileged statements are

2 justifiable if they "would have been suggested to a reasonably

3 competent cross-examiner by [the defendant's] direct testimony."

4 Id. at 626.

5 Although Douglas contends that cross-examination about

6 Moran's gun was improper because Douglas's direct testimony made no

7 mention of that gun, we disagree. Douglas testified that he was

8 innocent of any wrongdoing with respect to Moran, although he

9 admitted that he had pulled Moran out of the SUV, dragged Moran to

10 Moran's car, and hoisted him into the trunk of that car. Douglas

11 also testified that while the unnamed man was in the front seat of

12 the SUV, Douglas had entered the back seat with Moran and tried

13 unsuccessfully to remove the tape from Moran's mouth; and, as set

14 out in Part I.B. above, Douglas testified that when his tears turned

15 to rage, he "jumped up" and "reached" into the rear of the SUV,

16 pulled out a case containing a shotgun, "unzipped the case," pointed

17 the shotgun at the unnamed man, noisily "racked" the shotgun, and

18 was thereby able to cause the unnamed man to flee. (Tr. 544-45.)

19 Whether the focus was (a) on what Douglas observed as he pulled

20 Moran from the SUV, dragged his body to the Toyota, picked up

21 Moran's body, and dumped the body into the trunk of the Toyota, or

22 (b) on Douglas's potentially swifter access to and--far less

23 noticeably to the unnamed man--accessing of a weapon other than the

24 shotgun in its zippered case in the rear of the SUV, these aspects

25 of Douglas's direct testimony would have suggested to any

- 45 -
 1 "reasonably competent cross-examiner" a question as to whether Moran

2 was wearing a gun. When Douglas admitted on cross-examination, as

3 set out in Part I.C. above, that he knew ATM technicians were

4 usually armed but responded that he was not sure whether Moran was

5 armed, that he had no idea what had happened to Moran's gun, and

6 that he, Douglas, "didn't do anything" (Tr. 675), the government was

7 entitled to impeach him by asking him whether he hadn't in fact

8 stated to the police in Florida that he had thrown Moran's gun off

9 a bridge. When Douglas denied that he had made such a statement,

10 the government was entitled to impeach that denial by calling as

11 witnesses in its rebuttal case the Florida officers to whom the

12 statement was made. The trial judge properly instructed the jury

13 that the rebuttal evidence was to be considered only for purposes of

14 impeachment, not for its truth; and we see no error.

15 E. Other Contentions

16 Douglas's other contentions, which include challenges to

17 the sufficiency of the evidence and the restitution order, also

18 provide no basis for relief.

19 1. The Sufficiency Challenge

20 Section 2113(a) of Title 18 provides in pertinent part as

21 follows:

22 (a) Whoever, by force and violence, or by
23 intimidation, takes, or attempts to take, from the
24 person or presence of another, . . . any property or
25 money or any other thing of value belonging to, or

- 46 -
 1 in the care, custody, control, management, or
2 possession of, any bank . . . ; or

3 Whoever enters or attempts to enter any bank
4 . . . or any building used in whole or in part as a
5 bank, . . . with intent to commit in such bank
6 . . . , or building, or part thereof, so used, any
7 felony affecting such bank . . . and in violation of
8 any statute of the United States, or any larceny--

9 Shall be fined under this title or imprisoned
10 not more than twenty years, or both.

11 18 U.S.C. § 2113(a). In the superseding indictment, Douglas was

12 charged with violating the second paragraph of that section. At

13 trial, he unsuccessfully moved pursuant to Fed. R. Crim. P. 29 for

14 a judgment of acquittal, arguing that the attempt prohibited by the

15 second paragraph is not attempted larceny but only attempted entry

16 into the bank building (with intent to commit a felony therein) and

17 that the government failed to prove such an attempted entry because

18 there was no evidence that he made any "physical effort to get into

19 the building" housing the Yonkers ATMs (Tr. 797; see id. at 427

20 ("there has to be some move in the direction of trying to get into--

21 physically getting into the bank")). Douglas pursues this

22 contention on appeal.

23 The standard for establishing a criminal attempt is well

24 settled.

25 In order to establish that a defendant is
26 guilty of an attempt to commit a crime, the
27 government must prove that the defendant had the
28 intent to commit the crime and engaged in conduct
29 amounting to a "substantial step" towards the
30 commission of the crime. . . . For a defendant to
31 have taken a substantial step, he must have engaged
32 in more than mere preparation, but may have stopped
33 short of the last act necessary for the actual

- 47 -
 1 commission of the substantive crime.

2 United States v. Yousef, 327 F.3d 56, 134 (2d Cir.) (discussing 18

3 U.S.C. §§ 32(a)(1), (2), and (7) (2000) (which prohibited

4 destruction of and attempts to destroy aircraft)) (other internal

5 quotation marks omitted), cert. denied, 540 U.S. 933 (2003); see,

6 e.g., United States v. Mowad, 641 F.2d 1067, 1073 (2d Cir.), cert.

7 denied, 454 U.S. 817 (1981); United States v. Manley, 632 F.2d 978,

8 988-89 (2d Cir. 1980) ("Manley"), cert. denied, 449 U.S. 1112

9 (1981); United States v. Jackson, 560 F.2d 112, 117-20 (2d Cir.),

10 cert. denied, 434 U.S. 941 (1977). Under this standard, a defendant

11 may be found guilty of attempting to enter a banking facility even

12 if he did not move physically to breach its perimeter, so long as he

13 took a substantial step toward attempting to gain entry.

14 Although Douglas contends that the "substantial step"

15 standard does not apply to § 2113(a), his only argument in support

16 of that contention relies on the current version of Rule 31(c) of

17 the Federal Rules of Criminal Procedure, which provides as follows:

18 (c) Lesser Offense or Attempt. A defendant
19 may be found guilty of any of the following:

20 (1) an offense necessarily included in the
21 offense charged;

22 (2) an attempt to commit the offense
23 charged; or

24 (3) an attempt to commit an offense
25 necessarily included in the offense charged, if
26 the attempt is an offense in its own right.

27 Fed. R. Crim. P. 31(c) (2002). Douglas apparently takes the

28 position (a strange one for a defendant to endorse) that under

- 48 -
 1 subpart (2), a defendant may be convicted of an attempt to commit an

2 offense even if no statutory provision prohibits such an attempt; he

3 thus argues that Congress's express prohibition against "attempts to

4 enter" in § 2113(a) would be "unnecessary surplusage," on the theory

5 that "Congress did not need to insert those words because the

6 prosecutor could rely on Rule 31(c)" (Douglas brief on appeal at

7 48), unless Congress intended to require proof of more than the

8 traditional "substantial step" to establish the offense of attempt

9 under § 2113(a). This argument has several flaws.

10 In addition to noting the obvious due process concerns for

11 the possibility of convicting a defendant of an attempt that is not

12 prohibited by any statutory provision, see, e.g., Fiore v. White,

13 531 U.S. 225, 228 (2001) (conviction of a defendant for conduct that

14 a "criminal statute . . . does not prohibit . . . . violate[s] due

15 process"), we see no basis for inferring that Congress's inclusion

16 in § 2113(a) of an express prohibition against attempts to enter a

17 bank building for felonious purposes was based on any thought that

18 "the prosecutor could rely on Rule 31(c)" (Douglas brief on appeal

19 at 48). That prohibition appeared in § 2113's predecessor as

20 amended in 1937, see 50 Stat. 749 (1937), codified at 12 U.S.C.

21 § 588b (1940), and thus predated the Federal Rules of Criminal

22 Procedure (adopted in 1944, effective March 21, 1946) by several

23 years. Further, when § 2113(a) was enacted in 1948 and until 2002,

24 Rule 31(c) stated that

25 [t]he defendant may be found guilty of an offense
26 necessarily included in the offense charged or of an

- 49 -
 1 attempt to commit either the offense charged or an
2 offense necessarily included therein if the attempt
3 is an offense.

4 Fed. R. Crim. P. 31(c) (1946) (emphases added). This provision was

5 simply "a restatement of existing law, 18 U.S.C. former § 565."

6 Fed. R. Crim. P. 31 Advisory Committee Note (1944 Adoption); see Act

7 of June 1, 1872, § 9, 17 Stat. 196, 198 (a defendant "may be found

8 guilty of an attempt to commit the offence . . . charged: Provided,

9 That such attempt be itself a separate offence." (first emphasis in

10 original; second emphasis ours)). Thus, there was and is "no

11 general federal statute proscribing attempt," and we have

12 consistently held that an attempt to commit criminal conduct "is

13 therefore actionable only where . . . a specific criminal statute

14 makes impermissible its attempted as well as actual violation,"

15 Manley, 632 F.2d at 987 (emphasis added); see, e.g., United States

16 v. Dhinsa, 243 F.3d 635, 675 (2d Cir. 2001) ("'[u]nder Fed.R.Crim.P.

17 31(c), a defendant may be found guilty of an attempt to commit a

18 substantive offense, whether or not the attempt was charged in the

19 indictment, provided an attempt is punishable'") (quoting United

20 States v. Marin, 513 F.2d 974, 976 (2d Cir. 1975) (emphasis ours)),

21 cert. denied, 534 U.S. 897 (2001). Accordingly, far from creating

22 surplusage, Congress's inclusion in § 2113(a) (and its predecessor)

23 of an express prohibition against attempts to enter a bank was

24 essential in order to permit a defendant to be convicted of such an

25 attempt.

26 To the extent that Douglas argues that the current version

- 50 -
 1 of Rule 31(c) permits a defendant to be convicted of attempt even in

2 the absence of a statutory prohibition against such an attempt, it

3 can hardly be inferred that, in introducing the attempt prohibition

4 in 1937 and including it in § 2113(a) in 1948, Congress had in mind

5 the reformulation of Rule 31(c) in 2002. But even had the attempt

6 prohibition been added to § 2113(a) contemporaneously with or

7 subsequent to the 2002 reformulation of Rule 31(c), Douglas's

8 argument would fare no better. Although the format of the 2002

9 version of Rule 31(c) is different from that of its predecessors,

10 with the current "if the attempt is an offense" language appearing

11 only in subpart (3), the pertinent Advisory Committee Note states

12 that the changes in Rule 31 "are intended to be stylistic only."

13 Fed. R. Crim. P. 31 Advisory Committee Note (2002). Accordingly, we

14 reject the notion that the 2002 amendment to Rule 31(c)(2) was

15 intended to introduce the principle that a defendant may permissibly

16 be convicted of an attempt that is not prohibited by statute. We

17 thus see no basis for Douglas's contention that the normal

18 "substantial step" standard for proving the crime of attempt--which

19 was applied in all of the above attempt cases--is inapplicable to

20 § 2113(a).

21 To the extent that Douglas contends also that the evidence

22 was insufficient to show that he took a substantial step toward

23 entering the building housing the Yonkers ATMs, we reject that

24 contention, crediting, as we must, every inference that could have

25 been drawn in the government's favor and deferring to the jury's

- 51 -
 1 resolution of the weight of the evidence and the credibility of the

2 witnesses, see, e.g., United States v. Morrison, 153 F.3d 34, 49 (2d

3 Cir. 1998). Pieces of evidence are to be viewed not in isolation

4 but in conjunction, see, e.g., United States v. Podlog, 35 F.3d 699,

5 705 (2d Cir. 1994), cert. denied, 513 U.S. 1135 (1995), and the

6 conviction must be upheld if "any rational trier of fact could have

7 found the essential elements of the crime beyond a reasonable

8 doubt," Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

9 original). These principles apply whether the evidence being

10 reviewed is direct or circumstantial. See, e.g., Glasser v. United

11 States, 315 U.S. 60, 80 (1942).

12 As the district court noted in denying Douglas's motion

13 for acquittal in the present case, there was ample evidence from

14 which the jury could infer that Douglas "took substantial steps to

15 commit the crime of entering the Citibank branch at 1915-25 Central

16 Park Avenue for the purpose of stealing money from the ATM machines

17 located there." (Tr. 800.) The record included evidence that

18 Douglas had knowledge, by means of his prior employment with

19 Brink's, that the Yonkers ATMs were replenished with hundreds of

20 thousands of dollars in cash on Thursday mornings; that on Thursday

21 morning April 22, Douglas drove to that facility from his home in

22 Brooklyn, some 20-to-30 miles away, bringing, inter alia, a shotgun

23 and a bulletproof vest; that Douglas went back and forth between the

24 SUV and the bank to see whether the weekly cash infusion had been

25 made; that when Moran arrived at the Yonkers ATMs facility to fix an

- 52 -
 1 ATM printer he had the keys and codes needed to gain access to the

2 backs and interiors of the ATMs; and that after Douglas clubbed

3 Moran and hid his body, those keys and codes were missing.

4 The jury could easily have inferred that Douglas assaulted

5 Moran in order to obtain the keys and codes needed to gain access to

6 the ATMs and that Douglas took those items. Those inferences, in

7 the circumstances here, were more than sufficient to support a

8 finding that Douglas took substantial steps toward entering the

9 banking facility with intent to steal money from the ATM machines.

10 2. The Challenges to the Restitution Order

11 The district court, proceeding under the Mandatory Victims

12 Restitution Act ("MVRA"), 18 U.S.C. § 3663A, ordered Douglas to pay

13 $5,031.44 in restitution to Moran's father ("Moran Sr."), comprising

14 $1,280 for unreimbursed funeral expenses and $3,751.44 for income

15 lost by Moran Sr. as a result of his use of annual leave in order to

16 participate in the investigation into the death of his son and

17 attend the related court proceedings. The court ordered Douglas to

18 pay $6,050 in restitution to Brink's, comprising $4,150 that Brink's

19 paid for a headstone for Moran, plus $1,900 it paid to Moran Sr. to

20 reimburse him for funeral-home expenses. Douglas contends (1) that

21 the restitution award should be vacated in its entirety because it

22 was entered more than 90 days after he was sentenced, and (2) that

23 the awards to Brink's and the award of lost income to Moran Sr. were

24 not authorized by the statute. There being no challenges to the

- 53 -
 1 court's arithmetic calculations or the evidence to support them,

2 Douglas's restitution challenges raise only issues of law, which we

3 review de novo, see, e.g., United States v. Boccagna, 450 F.3d 107,

4 113 (2d Cir. 2006), and we find them to be without merit.

5 The provisions governing the procedures for the issuance

6 of restitution orders state, inter alia, that if a victim's losses

7 are not ascertainable by the date that is 10 days prior to

8 sentencing, the court may order restitution by a date "not to exceed

9 90 days after sentencing," 18 U.S.C. § 3664(d)(5). In the present

10 case, Douglas was sentenced on January 31, 2006; the 90th day

11 thereafter was May 1; the amended judgment imposing the restitution

12 order was not entered until May 5. We have noted, however, that

13 the purpose behind the statutory ninety-day limit on
14 the determination of victims' losses is not to
15 protect defendants from drawn-out sentencing
16 proceedings or to establish finality; rather, it is
17 to protect crime victims from the willful
18 dissipation of defendants' assets.

19 United States v. Zakhary, 357 F.3d 186, 191 (2d Cir.) ("Zakhary"),

20 cert. denied, 541 U.S. 1092 (2004). Accordingly, we have held that

21 an extension of the proceedings beyond the 90-day period provides no

22 basis for vacating the restitution order unless the defendant can

23 show that the extension caused him actual prejudice. See id.; see

24 also United States v. Johnson, 400 F.3d 187, 199 (4th Cir.) ("the

25 procedural requirements of § 3664 are intended to protect victims,

26 not the victimizers" (internal quotation marks omitted)), cert.

27 denied, 126 S. Ct. 134 (2005). Douglas has provided no indication

28 that he was in any way prejudiced by the fact that the restitution

- 54 -
 1 order was entered on May 5, 2006, rather than May 1, and his

2 challenge to the order's timeliness is thus rejected.

3 Nor do we find merit in any of Douglas's substantive

4 challenges. The MVRA provides that with respect to a defendant

5 convicted of an offense described in § 3663A(c)--which includes "any

6 offense . . . in which an identifiable victim . . . has suffered a

7 physical injury," 18 U.S.C. § 3663A(c)(1)(B)--"the court shall order

8 . . . that the defendant make restitution to the victim of the

9 offense or, if the victim is deceased, to the victim's estate," id.

10 § 3663A(a)(1). For purposes of § 3663A,

11 "victim" means a person directly and proximately
12 harmed as a result of the commission of an offense
13 for which restitution may be ordered . . . . In the
14 case of a victim who is . . . deceased, the . . .
15 representative of the victim's estate, another
16 family member, or any other person appointed as
17 suitable by the court, may assume the victim's
18 rights under this section . . . .

19 Id. § 3663A(a)(2).

20 As to the types of expenses to be compensated, subsection

21 (b) of § 3663A provides, in pertinent part, that the restitution

22 order is to require that the defendant,

23 in the case of an offense resulting in bodily
24 injury that results in the death of the victim,
25 pay an amount equal to the cost of necessary
26 funeral and related services; and

27 (4) in any case, reimburse the victim for
28 lost income . . . and other expenses incurred
29 during participation in the investigation or
30 prosecution of the offense or attendance at
31 proceedings related to the offense.

32 18 U.S.C. §§ 3663A(b)(3) and (4). In addition, "[i]f a victim has

- 55 -
 1 received compensation from insurance or any other source with

2 respect to a loss, the court shall order that restitution be paid to

3 the person who provided or is obligated to provide the compensation

4 . . . ." 18 U.S.C. § 3664(j)(1).

5 In objecting to the restitution award to Brink's, Douglas

6 relies on a statement in Zakhary "that 'defendants have a due

7 process interest in paying restitution only for losses actually

8 sustained by victims'" (Douglas brief on appeal at 62 (quoting 357

9 F.3d at 191 n.4) (emphasis in brief)); and he cites our opinion in

10 United States v. Reifler, 446 F.3d 65 (2d Cir. 2006), for the

11 proposition that Brink's cannot properly be awarded restitution

12 because it does not fit within the MVRA's definition of "victim"

13 (see Douglas brief on appeal at 61-62). Neither case advances

14 Douglas's cause.

15 Douglas's reliance on Zakhary is misplaced because that

16 case dealt with a "lump sum restitution order entered without any

17 identification of victims and their actual losses." 357 F.3d at

18 190. Thus, the context of the above-quoted language in the Zakhary

19 footnote was the need to determine which of various entities had

20 lost money, and hence were the victims of the defendant's crimes,

21 see, e.g., id. ("mandatory restitution can only be imposed to the

22 extent that the victims of a crime are actually identified"

23 (internal quotation marks omitted)). Here, there is no question

24 that it was Brink's that reimbursed Moran Sr. $1,900 for part of

25 Moran's funeral-home expense and paid $4,150 for Moran's headstone.

- 56 -
 1 Douglas's reliance on Reifler is also misplaced, for we

2 had no occasion in that case to interpret §§ 3663A(b)(3) and (4), as

3 the restitution issues there concerned compensation for victims of

4 financial fraud, rather than bodily injury. And the restitution

5 orders in that case were held to be erroneous principally because

6 they (1) ordered payments for losses that were not occasioned by the

7 defendants' criminal conduct, and (2) ordered payments to persons

8 who--far from being victims--were among the defendants'

9 coconspirators, see 446 F.3d at 127.

10 Douglas's offense, in contrast, resulted in the death of

11 Moran, occasioning his documented funeral and related expenses.

12 Restitution with respect to that category of expenses was authorized

13 by § 3663A(b)(3), and the MVRA required that restitution be ordered

14 not only for Moran's "estate [or] another family member," who "may

15 assume [Moran's] rights under this section," 18 U.S.C.

16 § 3663A(a)(2), but also for any person who provided Moran's

17 successors with compensation for losses for which restitution was

18 appropriate, see id. § 3664(j)(1). Thus, the court did not err in

19 ordering Douglas to pay restitution to Brink's for its reimbursement

20 of Moran Sr. for funeral-home expenses. Nor did it err in ordering

21 restitution to Brink's for its direct payment for Moran's headstone.

22 Had Moran Sr. purchased the headstone, he plainly would have been

23 entitled to restitution for that funeral-related expense as Moran's

24 father or the representative of Moran's estate under §§ 3663A(a)(2)

25 and (b)(3); and had Brink's then reimbursed Moran Sr. for the

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 1 headstone, Brink's would have been entitled to restitution for that

2 reimbursement under § 3664(j)(1). The fact that Brink's paid for

3 the headstone directly rather than having Moran Sr. pay for it and

4 reimbursing him does not relieve Douglas of the obligation to make

5 restitution for the cost incurred. See generally United States v.

6 Malpeso, 126 F.3d 92, 95 (2d Cir. 1997) (upholding award of

7 restitution to the FBI under the Victim and Witness Protection Act,

8 the precursor to the MVRA, even though FBI had paid the expense

9 directly instead of reimbursing the victim, there being "no

10 significant functional or economic difference between the

11 indemnitor's prior payment of the victim's expense and subsequent

12 reimbursement").

13 Finally, Douglas contends that the district court erred in

14 ordering restitution to Moran Sr. to compensate him for lost income,

15 in the form of his expenditure of accrued annual leave to assist in

16 the investigation and attend court proceedings. While conceding

17 that "Moran[] Sr. clearly is a 'victim' within the meaning of the

18 MVRA," Douglas argued to the district court that Moran Sr.'s use of

19 annual leave "actually prevent[ed] lost income. It appears that the

20 annual leave was used exactly as it is intended and cushioned Mr.

21 Moran [Sr.] against incurring lost income." (Letter from Clinton W.

22 Calhoun, III, to Judge McMahon dated April 27, 2006, at 2, 3.) The

23 district court properly rejected this argument. It reasoned that if

24 Moran Sr. had not had to use that annual leave for the days on which

25 he assisted in the investigation and attended court proceedings, he

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1 would have had the right to receive payment for those days upon

2 leaving his job. See, e.g., United States v. Jacobs, 167 F.3d 792,

3 796-97 (3d Cir. 1999). We see no error in the court's conclusion

4 that Moran Sr.'s expended annual leave in this case qualifies as

5 lost income under § 3663A(b)(4).

6 CONCLUSION

7 We have considered all of Douglas's arguments on this

8 appeal and have found them to be without merit. The judgment of the

9 district court is affirmed.

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