United States v. Ferreira

14-4174(L) United States v. Ferreira UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 28th day of June, two thousand seventeen. 5 6 PRESENT: DENNIS JACOBS, 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES, 13 Appellee, 14 15 -v.- 14-4174(L) 16 14-4317(CON) 17 MELANIE FERREIRA, 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLANT: JONATHAN I. EDELSTEIN, Edelstein & 22 Grossman; New York, NY. 23 24 FOR APPELLEE: NICHOLAS S. FOLLY (Brian R. Blais, 25 on the brief), for Joon H. Kim, 26 Acting United States Attorney for 1 1 the Southern District of New York; 2 New York, NY. 3 4 Appeal from a judgment of the United States District Court 5 for the Southern District of New York (Seibel, J.). 6 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 8 DECREED that the judgment of the district court be AFFIRMED. 9 10 Melanie Ferreira appeals from a judgment of conviction 11 entered in the United States District Court for the Southern 12 District of New York (Seibel, J.) pursuant to jury verdict. We 13 assume the parties’ familiarity with the underlying facts, the 14 procedural history, and the issues presented for review. 15 Ferreira was charged with (1) wire fraud in violation of 16 18 U.S.C. §§ 1343 and 2, (2) filing false claims in violation 17 of 18 U.S.C. §§ 287 and 2, (3) bank fraud in violation of 18 18 U.S.C. §§ 1344 and 2, and (4) obstructing and impeding the due 19 administration of the internal revenue laws in violation of 26 20 U.S.C. § 7212(a). On appeal, and with the benefit of counsel, 21 Ferreira argues (1) that it was error to allow her to represent 22 herself (or to allow her to continue representing herself), (2) 23 that several of the district court’s evidentiary rulings 24 deprived her of a fair trial, and (3) that the district court 25 should have granted her request for a reasonable adjournment 26 to spend more time preparing for trial. 27 At her initial presentment in April 2013, Ferreira elected 28 to appear pro se, and appeared along with standby counsel from 29 the Federal Defenders of New York. Magistrate Judge Lisa M. 30 Smith explained in detail the risks of proceeding pro se and 31 “strongly recommend[ed]” that Ferreira accept the assistance 32 of counsel, App. 29, but found that she was competent and made 33 a knowing and voluntary waiver of her right to counsel. 34 At a conference in July 2013, Judge Cathy Seibel told 35 Ferreira that it was a “monumentally bad idea” to waive the right 36 to counsel, App. 129, explained at length the difficulties of 37 criminal trial (and, if convicted, of sentencing), and warned 38 Ferreira that she would not be able to argue later that she should 2 1 not have been permitted to appear pro se. Ferreira indicated 2 that she understood. 3 In December 2013, Ferreira appeared at a conference on 4 pretrial motions and objected to having standby counsel. Judge 5 Seibel told her that she had the right to represent herself and 6 to make no use of standby counsel, but that she could not refuse 7 standby counsel altogether. Standby counsel told Judge Seibel 8 that she had asked the Government to calculate the applicable 9 Sentencing Guidelines range so that Ferreira would “understand 10 . . . how much jail time she actually faces,” and the Government 11 did inform her. App. 218. Judge Seibel further explained to 12 Ferreira that the actual sentence could be anything from “zero 13 up to the statutory maximum.” App. 219. 14 At a final pretrial conference in January 2014, Judge Seibel 15 again revisited Ferreira’s decision to proceed without counsel, 16 and again warned Ferreira that she would not be able to appeal 17 on the basis of ineffective assistance. Ferreira again declined 18 representation. 19 At trial, the Government put on evidence showing (inter 20 alia) that Ferreira’s 2008 tax return fraudulently claimed a 21 refund of $440,924; that the IRS wired those funds to Ferreira’s 22 bank account and Ferreira rapidly depleted them, often in amounts 23 just under $10,000; that Ferreira filed a similar fraudulent 24 tax return the following year (at which point the IRS discovered 25 the fraud); that Ferreira caused an associate to forge a 26 cashier’s check for $316,966.05 to satisfy a mortgage on 27 Ferreira’s home; and that Ferriera drew checks to satisfy her 28 mortgage ($305,000) and to satisfy tax debts ($759,033.05) on 29 an account that she had closed years earlier. Ferreira 30 presented no defense at trial. The jury returned a guilty 31 verdict on all four counts. Ferreira was sentenced principally 32 to concurrent terms of 51 months’ incarceration on the first 33 three counts and a concurrent term of 36 months’ incarceration 34 on the fourth. 35 1. A defendant has the right to defend herself without 36 the assistance of counsel if the decision to waive the right 37 to counsel is made knowingly with full awareness of the 38 consequences. Faretta v. California, 422 U.S. 806, 835–36 3 1 (1975). Whether that standard is satisfied “depends upon the 2 particular facts and circumstances of the case and 3 characteristics of the defendant.” United States v. Fore, 169 4 F.3d 104, 108 (2d Cir. 1999). We review “a district court’s 5 conclusions regarding the constitutionality of a defendant’s 6 waiver” de novo and “its supporting factual findings” for clear 7 error. United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993). 8 We will affirm the district court’s conclusion “if any reasonable 9 view of the evidence supports it.” Id. at 11 (quotation marks 10 omitted). 11 The record is clear that Ferreira was repeatedly warned of 12 the consequences and dangers of representing herself, and that 13 Ferreira nevertheless repeatedly declined the assistance of 14 counsel. Both judges concluded that she was competent to make 15 that decision and did so knowingly. 16 A district court need not “resort to any particular 17 talismanic procedures” to establish that a defendant understands 18 the consequences of waiver, United States v. Culbertson, 670 19 F.3d 183, 193 (2d Cir. 2012) (internal quotation marks omitted), 20 and Ferreira makes no persuasive argument that she failed to 21 understand what she was told. The district court did not err 22 by permitting Ferreira to exercise her right to 23 self-representation. Nor is there merit to Ferreira’s 24 contention that during the course of trial she effectively asked 25 to have a lawyer. 26 2. Ferreira argues that three evidentiary rulings 27 deprived her of a fair trial: (1) the admission pursuant to 28 Federal Rule of Evidence 404(b) of testimony from Ferreira’s 29 accountant about her earlier reluctance to report cash income 30 to the IRS; (2) the admission of documents in Ferreira’s 31 possession relating to anti-government, anti-tax, and anti-IRS 32 views; and (3) the admission of evidence (to which Ferreira made 33 no contemporaneous objection) that two associates to whom she 34 transferred fraudulently obtained funds made cash withdrawals 35 in amounts just under $10,000. In light of the district court’s 36 superior position to weigh probative value of evidence against 37 the risk of unfair prejudice, we review its evidentiary rulings 38 for abuse of discretion. See, e.g., United States v. 39 Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010); United States v. 4 1 Guang, 511 F.3d 110, 121 (2d Cir. 2007). We review evidentiary 2 decisions to which the defendant made no contemporaneous 3 objection for plain error. United States v. Pierce, 785 F.3d 4 832, 840 (2d Cir. 2015). 5 “Other acts” evidence is inadmissible for the purpose of 6 showing a defendant’s criminal propensity, but such evidence 7 is admissible under Rule 404(b) for other purposes so long as 8 it is not substantially outweighed by the danger of unfair 9 prejudice. See United States v. Paulino, 445 F.3d 211, 221 (2d 10 Cir. 2006). The district court reasoned that testimony from 11 Ferreira’s former accountant was probative to show that Ferreira 12 knew of her obligations, understood that her conduct was wrong, 13 and acting knowingly and intentionally, not by mistake or 14 accident. The district court found that this probative value 15 was not outweighed by unfair prejudice, in part because the 16 failure to report cash income, though illegal, is relatively 17 common and therefore not highly prejudicial. The district court 18 instructed the jury on the proper use of this evidence twice 19 during the testimony and in greater detail in the jury charge. 20 Ferreira makes no persuasive argument that she was unfairly 21 prejudiced by this testimony or that its admission was an abuse 22 of discretion. 23 Nor did the district court abuse its discretion by admitting 24 evidence of Ferreira’s anti-government, anti-tax, and anti-IRS 25 views. Intent was a critical issue at trial, and Ferreira’s 26 views on these subjects undercut the argument that her actions 27 resulted from a good-faith misunderstanding of her obligations. 28 The evidence was not unduly prejudicial. 29 Ferreira did not object to the admission of evidence that 30 two of her associates to whom she transferred fraudulently 31 obtained funds withdrew those funds in amounts just small enough 32 to avoid triggering bank reporting obligations; so we review 33 the decision to allow introduction of that evidence only for 34 plain error. This evidence was probative of awareness that the 35 overall scheme was known to be illicit by its participants. It 36 was not unduly prejudicial: Ferreira, who did the same thing, 37 would not be tainted by the conduct of her associates. The 38 admission of this evidence was not plainly erroneous. 5 1 3. Five days before the scheduled start of trial, Ferreira 2 sought a 90-day adjournment to review recently produced evidence 3 and because of her mother’s terminal illness. The district 4 court observed that most of the recently produced evidence was 5 cumulative, granted a six-day adjournment nevertheless, and 6 invited Ferreira to advise the court if the material yielded 7 anything significant. Ferreira’s motion for adjournment on the 8 first day of trial was denied. 9 “Trial judges necessarily require a great deal of latitude 10 in scheduling trials,” and have “broad discretion . . . on matters 11 of continuances.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983). 12 “The denial of a defendant’s request for a continuance will not 13 be reversed absent a showing both of arbitrariness and of 14 prejudice to the defendant.” United States v. Arena, 180 F.3d 15 380, 397 (2d Cir. 1999) (abrogated on other grounds by Scheidler 16 v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403 n.8 (2003)). 17 Ferreira has shown neither arbitrariness nor prejudice, and we 18 find no abuse of discretion in the district court’s denial of 19 (a longer) adjournment. 20 Accordingly, and finding no merit in appellant’s other 21 arguments, we hereby AFFIRM the judgment of the district court. 22 FOR THE COURT: 23 CATHERINE O’HAGAN WOLFE, CLERK 6