United States v. Eldridge

18-3294-cr (L)
United States v. Eldridge

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of June, two thousand twenty.

Present:
DENNY CHIN,
RICHARD J. SULLIVAN,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 18-3294-cr (L), 19-92-cr (Con)

THAMUD ELDRIDGE, KEVIN ALLEN,

Defendants-Appellants,

KASHIKA SPEED, GALEN ROSE,

Defendants. 1

_____________________________________

For Defendant-Appellant DEVIN MCLAUGHLIN, Langrock Sperry & Wool,
Thamud Eldridge: LLP, Middlebury, VT

1 The Clerk of Court is directed to amend the caption as set forth above.
 For Defendant-Appellant CHERYL M. BUTH, Meyers Buth Law Group,
Kevin Allen: Orchard Park, NY

For Appellee: KATHERINE A. GREGORY, Assistant United States
Attorney, for James P. Kennedy, Jr., United
States Attorney for the Western District of New
York, Buffalo, NY

Appeal from judgments of the United States District Court for the Western District

of New York (Richard J. Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of conviction and sentences are AFFIRMED.

Defendants-Appellants Thamud Eldridge and Kevin Allen appeal from their

convictions and sentences for narcotics and firearms offenses, as well as for violations of

the Racketeer Influenced and Corrupt Organizations (RICO) Act. In a concurrently filed

opinion, we (1) reject the defendants’ claim that they were denied a fair trial due to a

curtain around the defense table; (2) find no plain error in the court’s instructional error

on Count Seven against Eldridge for possessing and brandishing a gun in furtherance of

a crime of violence, in violation of 18 U.S.C. § 924(c); and (3) hold that Section 403(a) of

the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5221–22, does not apply to

Eldridge. In this summary order, we conclude that none of the defendants’ remaining

challenges warrants reversal. We assume the reader’s familiarity with the record.

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 I. Fair Trial Claims

A. Partial closure of the courtroom

The defendants claim that they were denied their right to a public trial when law

enforcement officers in the courtroom asked for identification from the defendants’

family members on one afternoon during trial. The district court denied the defendants’

motion for a mistrial based in part on these actions, concluding that the Government’s

reason for the officers’ actions—that some witnesses had reported receiving threats

following opening statements—justified the narrow closure.

We find no error in the district court’s ruling. The Supreme Court has

acknowledged that the Sixth Amendment right to a public trial is not absolute and that

circumstances may require closing the courtroom to protect other interests. See Waller

v. Georgia, 467 U.S. 39, 45 (1984). To justify a courtroom closure, the law requires that:

(1) “the party seeking to close the hearing must advance an overriding interest that is

likely to be prejudiced,” (2) “the closure must be no broader than necessary to protect

that interest,” (3) “the trial court must consider reasonable alternatives to closing the

proceeding,” and (4) “it must make findings adequate to support the closure.” Id. at 48.

Where the courtroom is only partially closed, the first requirement is relaxed, requiring a

“substantial reason” rather than “overriding interest” supporting the closure. See

United States v. Smith, 426 F.3d 567, 571 (2d Cir. 2005) (internal quotation marks omitted).

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 We have previously applied Waller to hold that law enforcement’s request for

courtroom spectators’ identification in response to reasonable security concerns effected

a partial closure of the courtroom, but one that did not violate the defendants’ rights to a

public trial. See id. at 572–73. We conclude the same here. The closure was narrow in

scope and time, occurring on only one afternoon of trial and purportedly keeping only

one spectator from attending the trial that day. Moreover, as the district court found,

there was a “positive correlation” between the partial closure and the substantial interest

at stake. Allen App’x at 149 (district court’s decision, quoting Smith, 426 F.3d at 573).

The court’s inference that courtroom spectators could have been the source of threats

made to witnesses—witnesses who had been named for the first time that morning

during trial—was entirely reasonable, and the partial closure reasonably advanced the

public interest in preventing further tampering by deterring such conduct or aiding in a

subsequent investigation. Thus, this short-lived partial closure was justified.

B. Questioning the jury

The defendants challenge the district court’s decision to question the entire panel

of jurors at once about potential fears over their security, rather than conducting

individual inquiries. We review a district court’s findings concerning jury impartiality

for abuse of discretion, with the court having “broad flexibility in such matters, especially

when the alleged prejudice results from statements by the jurors themselves.” United

States v. Haynes, 729 F.3d 178, 192 (2d Cir. 2013) (quoting United States v. Thai, 29 F.3d 785,

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803 (2d Cir. 1994)). We find no abuse of discretion here. After learning that one juror

had voiced concerns to the courtroom deputy about the defendants’ access to the jurors’

personal information, the district court conducted a thorough inquiry of the jury to

determine whether there was a risk of prejudice before issuing a cautionary instruction

to the jury on its obligation to be fair and impartial. The defendants do not offer any

reason beyond speculation to suspect that the procedure used by the district court here

was inadequate to ensure an impartial jury.

C. Prosecutorial misconduct

Eldridge alone alleges that prosecutorial misconduct infringed his right to a fair

trial; however, Eldridge did not raise this challenge before the district court, and so we

review his claim for plain error. See Johnson v. United States, 520 U.S. 461, 466–67 (1997)

(holding reversal appropriate only if there was “(1) error, (2) that is plain, and (3) that

affects substantial rights,” and only when “the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings” (internal quotation marks and

alterations omitted)).

To warrant a new trial, the alleged prosecutorial misconduct “must be so severe

and significant as to result in the denial of [the defendant’s] right to a fair trial.” United

States v. Banki, 685 F.3d 99, 120 (2d Cir. 2012) (quoting United States v. Locascio, 6 F.3d 924,

945 (2d Cir. 1993)). Eldridge asserts that three instances of alleged misconduct meet this

standard: first, that the prosecutor knew that testimony about when a witness named

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Jackson met Eldridge was false yet left it uncorrected; second, that the prosecutor’s

opening statement misled the jury as to evidence it would hear linking a cigar butt found

at the scene of a charged armed robbery to the gunman; and third, that the prosecutor

improperly solicited statements from a witness regarding Eldridge having previously

been shot. We disagree, seeing no basis to conclude that Eldridge’s right to a fair trial

was violated.

With respect to the purportedly false and uncorrected testimony, Eldridge has not

demonstrated that the false statement was intentional, as opposed to the result of

mistaken memory. See United States v. Josephberg, 562 F.3d 478, 494 (2d Cir. 2009) (stating

that “[d]ifferences in recollection do not constitute perjury”). Even assuming the false

statement was intentional (and that the prosecutor was aware of the statement’s falsity),

the record does not support a finding that the falsehood was material to the jury’s verdict.

See id. Eldridge does not suggest that the year he met Jackson was material to guilt; he

only asserts that had the misstatement been made known to the jury, “Jackson’s

credibility would have been shot.” Eldridge Br. at 47. But the discrepancy—if there

was one—presumably would have been known to the defense, too, and yet Eldridge

declined to cross-examine Jackson on it, leaving Jackson’s credibility undisturbed.

Eldridge therefore has not demonstrated that the prosecution’s failure to correct Jackson’s

testimony is now grounds for reversal.

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 Next, there was no misconduct in the prosecution’s opening statement concerning

the cigar-butt evidence because, at the time of the statement, the prosecution had a good

faith basis to believe that the evidence linking the cigar butt to the gunman could be

admitted pursuant to a hearsay exception. After the prosecution failed to adduce the

requisite foundation for the testimony, it did not revisit the statement in summation.

Moreover, any error would have been harmless because the defense summation

highlighted the prosecution’s failure to produce a witness to testify that the gunman had

a cigar, and the district court issued limiting instructions to the jury concerning

statements made during opening and closing statements. Cf. United States v. Millar, 79

F.3d 338, 343 (2d Cir. 1996) (unintentionality of prosecutor’s misstatement is factor to be

considered in evaluating misconduct); United States v. Caracappa, 614 F.3d 30, 41 (2d Cir.

2010) (efforts made to cure the misconduct considered when determining whether

misconduct amounts to prejudicial error).

Last, Eldridge claims that it was misconduct for the prosecution to solicit

testimony that Eldridge had previously been shot because the testimony violated the

district court’s pre-trial order excluding such evidence under Federal Rule of Evidence

403. We need not reach this question since any hypothetical error was harmless in light

of the overwhelming evidence that Eldridge was a member of a gang, carried a gun, sold

drugs, and committed robberies and other violent acts. See United States v. McCarthy, 54

F.3d 51, 55 (2d Cir. 1995) (“When prosecutorial misconduct is alleged, a new trial is only

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warranted if the misconduct is of sufficient significance to result in the denial of the

defendant’s right to a fair trial.” (internal quotation marks omitted)).

II. Eldridge’s Speedy Trial Claim

Eldridge claims that he was denied a speedy trial under the Sixth Amendment,

arguing that the approximately six-year interval between his indictment in September

2009 and the commencement of trial in January 2016 was presumptively prejudicial, that

the prosecution caused the delay, and that the destruction of some trial evidence during

the delay prejudiced his case. We consider four factors when considering claims of a

constitutional speedy trial violation—the “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant,” Barker v. Wingo, 407

U.S. 514, 530 (1972)—none of which has “talismanic qualities,” id. at 533. Here, the

Government concedes that a six-year delay is presumptively prejudicial, while Eldridge

acknowledges that he did not expressly invoke his speedy trial rights before the district

court. Since a presumptively prejudicial delay “cannot alone carry a Sixth Amendment

claim without regard to the other Barker criteria,” Doggett v. United States, 505 U.S. 647,

656 (1992), Eldridge’s claim turns primarily on the causes of the delay and the extent to

which the delay in fact prejudiced Eldridge.

The delay here did not violate Eldridge’s right to a speedy trial. A significant

portion, if not a substantial majority, of the delay was attributable to the defendants. For

example, at least ten months can be traced to Eldridge’s motion to recuse the entire U.S.

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Attorney’s Office. Several of the Government’s motions for extensions of time were

responses to the defendants’ motions to bifurcate the proceedings. And the

Government’s motions regarding the spoliation of evidence were pending at the same

time as various defense motions. Moreover, we see nothing problematic in the

“neutral” reason for delay, namely the use of a magistrate judge for certain proceedings.

Furthermore, the delay did not prejudice Eldridge in any meaningful way. When

evaluating prejudice, we look to “the interests of defendants which the speedy trial right

was designed to protect,” namely “(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit the possibility the defense

will be impaired.” Barker, 407 U.S. at 532. Here, Eldridge was already serving the

remainder of another sentence during the first three years and three months following

his indictment, and he did not argue that he suffered any particular anxiety. Nor was

his defense impaired. Although he lost one of his original attorneys, that was because

his lawyer was not eligible to practice in the Western District of New York and had

nothing to do with the passage of time. The loss of evidence during the delay almost

certainly redounded to Eldridge’s benefit: the witness who had linked the gunman at 87

Girard to the cigar butt with Eldridge’s DNA on it died prior to trial, leaving the

prosecution unable to directly connect Eldridge to that offense. On balance, Eldridge

did not suffer a violation of his speedy trial rights.

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III. Sufficiency of Evidence

The defendants challenge the sufficiency of the evidence as to: (1) the existence of

a racketeering enterprise; (2) a pattern of racketeering activity; and (3) a narcotics

conspiracy (Racketeering Act One and Count Three). Eldridge additionally challenges

the sufficiency of the evidence for: (4) the attempted robbery of 87 Girard (Racketeering

Act Two); (5) the RICO conspiracy (Count Two); and (6) the possession of a firearm in

furtherance of a drug trafficking crime (Count Four). Allen challenges the sufficiency of

the evidence for (7) his participation in a conspiracy to rob Woodie Johnson (Count Six).

In reviewing the sufficiency of the evidence supporting a jury’s verdict, “the

reviewing court is required to draw all permissible inferences in favor of the government

and resolve all issues of credibility in favor of the jury verdict.” United States v. Kozeny,

667 F.3d 122, 139 (2d Cir. 2011). Direct testimony to a fact is sufficient to support a

finding on that fact, and where there was such testimony, we will assume the jury

credited it. See United States v. Jespersen, 65 F.3d 993, 998 (2d Cir. 1995). In light of this

standard, we conclude that the Government adduced sufficient evidence on each of the

challenged points.

First, there was sufficient evidence of an “association-in-fact” racketeering

enterprise, which “must have at least three structural features: a purpose, relationships

among those associated with the enterprise, and longevity sufficient to permit these

associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946

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(2009). The Government’s evidence showed that: Allen, Eldridge, and co-defendant

Kashika Speed met frequently to plan and commit robberies of other drug dealers; Allen

and Eldridge traveled together to Atlanta to acquire drugs and guns after the robberies;

and the three were closely linked to, if not formally affiliated with, the Montana Bridge

and Newburgh crews, which were themselves essentially one gang split generationally.

A jury could reasonably have concluded that the defendants constituted an ongoing

enterprise during the charged period of criminal activity, with a shared purpose of selling

drugs and committing robberies to enrich the group.

Second, evidence of the two robberies clearly showed a pattern of racketeering

activity and supported the narcotics conspiracy: the robbery of Woodie Johnson

concluded with the defendants splitting up the stolen cocaine for distribution, while the

attempted robbery of 87 Girard targeted a known drug house. The jury also heard

testimony that the defendants robbed drug dealers because it was a way to obtain drugs

“wholesale” for the defendants to then distribute. Because there was ample evidence

that the defendants committed these predicate crimes, and that the crimes were

sufficiently related, Allen’s related challenge to the pattern is meritless.

Third, with respect to the narcotics conspiracy charged in Racketeering Act One

and Count Three, the defendants argue that the Government proved only instances of

individual dealing. This claim is undermined by substantial evidence introduced at

trial, including that the defendants not only planned to rob drug dealers with the intent

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of acquiring drugs “wholesale” for distribution, but actually did so when robbing

Woodie Johnson and divvying up the proceeds.

Fourth, we reject Eldridge’s challenge to his conviction for the attempted robbery

of 87 Girard Street charged in Racketeering Act Two. Eldridge argues that the

Government failed to show that he was present at the robbery or that any robbery was

actually attempted, but the jury could reasonably have inferred that Eldridge was present

in the house during the robbery based on (1) the recovered cigar butt with Eldridge’s

DNA on it and (2) the homeowner’s testimony that he did not know Eldridge and had

never given him permission to enter the house. Similarly, the jury could have inferred

that the assailants were attempting a robbery based on the evidence, which showed that

the house was owned by a known drug dealer, the assailants were armed, and they tied

up victims at the house. These facts support an inference of the requisite intent to take

property sufficient to support a conviction.

Fifth, Eldridge challenges the sufficiency of the evidence underlying his conviction

for the RICO conspiracy charged in Count Two; however, his argument is based entirely

on the arguments rejected above concerning the lack of evidence of a racketeering

enterprise or pattern of racketeering activity. Because we disagree with Eldridge that

the Government failed to adduce sufficient evidence on either of those elements, we

likewise reject his challenge to his conviction for RICO conspiracy.

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 Sixth, we reject Eldridge’s challenge to the sufficiency of the evidence supporting

his conviction on Count Four for possessing a firearm in furtherance of a drug trafficking

crime. Eldridge himself admits that there is “marginal” evidence that he possessed a

firearm, but he nonetheless argues that the Government failed to prove the requisite

nexus between that firearm possession and any drug trafficking crime. However, the

jury heard ample testimony indicating that Eldridge was armed while obtaining or

dealing drugs. For example, Renfro testified that Eldridge carried a gun “[e]very time,

every day, all the day,” including when Renfro “would drop him off and [Eldridge]

would sell drugs.” Tr. at 682–83. Moreover, as noted above, the jury heard testimony

that Eldridge and Allen together went to Atlanta to acquire drugs and guns. Thus, the

evidence was sufficient to support the jury’s conviction on Count Four.

Finally, Allen’s challenge to the sufficiency of the evidence supporting his

conviction for conspiracy to rob Woodie Johnson is meritless. A witness testified that

he had attended a meeting where Allen, Eldridge, and Speed planned the robbery.

Allen points to inconsistencies between that witness’s testimony and that of other

witnesses, but the jury was entitled to resolve those inconsistencies in favor of crediting

the former.

IV. Jury Instructions

Eldridge raises two challenges to the jury instructions on his § 924(c) convictions.

He first argues that the court’s instruction as to aiding and abetting was insufficient

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because the court did not include any language concerning “advance knowledge” of the

presence of a firearm, as required under Rosemond v. United States, 572 U.S. 65 (2014). See

United States v. Prado, 815 F.3d 93, 100–02 (2d Cir. 2016). Second, Eldridge challenges the

district court’s failure to specifically “instruct the jury that they were not to find liability

on the multiple [§] 924(c) counts for the same predicate conduct.” Eldridge Br. at 42.

“We review challenges to jury instructions de novo but will reverse only where the charge,

viewed as a whole, demonstrates prejudicial error. A jury instruction is erroneous if it

misleads the jury as to the correct legal standard or does not adequately inform the jury

on the law.” Prado, 815 F.3d at 100 (internal quotation marks and citation omitted).

Because Eldridge did not object to the instructions below, we review for plain error.

On Eldridge’s first claim, we agree—and the Government does not dispute—that

the district court failed to instruct the jury that advance knowledge of the firearm was

necessary to sustain a conviction for secondary liability as required under Rosemond.

However, Eldridge fails to demonstrate, as he must under plain error review, that he was

prejudiced by this error. There was ample evidence that Eldridge himself possessed a

firearm in connection with the charged drug trafficking. Eldridge provides no reason

to conclude that the jury’s verdict turned on a finding that he acted as an accessory in

Counts Four and Seven, much less a showing that the specific failure to instruct the jury

on advance knowledge prejudiced him.

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 We also reject Eldridge’s claim that it was plain error for the district court to fail to

specifically instruct the jury that Eldridge could not be convicted of both § 924(c) counts

based on the same underlying conduct. Even assuming that the district court did err—

and the Government does not argue otherwise—Eldridge cannot show that he was

prejudiced by the lack of such an instruction. Eldridge may be correct that the jury

conceivably could have treated the Johnson robbery specified in Count Seven as part of

the drug trafficking activities stated in Count Four and thus convicted him of both counts

based on a single incident—the Johnson robbery. But conceivably is not enough; he

bears the burden of showing that there was a “reasonable probability” that, if the court

had provided the requested instruction, the jury would not have convicted him on both

Counts Four and Seven. Prado, 815 F.3d at 103. Here, the jury had substantial evidence

that Eldridge possessed a firearm while engaging in a number of drug trafficking

activities other than the Johnson incident; there is no reason to think that a more detailed

instruction on the separate § 924(c) counts would have changed the verdict. See United

States v. Arline, 835 F.3d 277, 282–83 (2d Cir. 2016) (finding no plain error where district

court did not instruct the jury that two § 924(c) counts could not be predicated on the

same conduct, in light of ample evidence showing that the defendant “possessed multiple

firearms on separate occasions”).

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 V. Sentencing Challenges

Next, we address Eldridge’s three challenges to his sentence, which together, he

claims, amount to procedural error. First, he argues that the district court erred when

calculating his criminal history under the Sentencing Guidelines; second, he claims the

court erred in failing to apply an adjustment pursuant to § 5G1.3(b) of the Guidelines;

and third, he argues that the record did not support the drug quantity attributed to him.

A sentencing court commits procedural error if it, inter alia, “is mistaken in the

Guidelines calculation . . . [or] makes clearly erroneous factual findings.” United States

v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). “However, where we identify procedural error

in a sentence, but the record indicates clearly that the district court would have imposed

the same sentence in any event, the error may be deemed harmless, avoiding the need to

vacate the sentence and to remand the case for resentencing.” United States v. Cramer,

777 F.3d 597, 601 (2d Cir. 2015) (internal quotation marks and alteration omitted). We

review the application of the Guidelines de novo and the factual determinations

underlying the calculation of the Guidelines range for clear error. See United States v.

Rowland, 826 F.3d 100, 116 (2d Cir. 2016).

We see no reason to disturb Eldridge’s sentence. First, we find no grounds to

remand for resentencing with respect to the district court’s calculation of the Guidelines.

The court properly declined to count Eldridge’s state forgery conviction as relevant

conduct (as opposed to criminal history), since the conviction could not serve as a

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racketeering predicate, and Eldridge did not offer any facts that would connect the

forgery conviction to Eldridge’s crimes in this case. And, even if the court should have

excluded Eldridge’s 2009 federal convictions from his criminal-history calculation, any

procedural error was harmless. Eldridge’s dispute is basically over a five-month

difference in the low end of the Guidelines range for Counts One, Two, and Six. Under

his view, the court should have considered a range of 235–240 months, rather than a fixed

“range” where both the minimum and maximum were 240 months. But the record is

clear that the district court—having considered the § 3553(a) factors, the competing

Guidelines ranges offered by the Government and Eldridge, and the length of the

aggregate sentence it was going to impose—decided to impose a non-Guidelines sentence

on Count Five. The court was free to choose any sentence from zero to life on this count,

and it chose a sentence of 240 months. Because Eldridge’s sentence for Count Five runs

concurrently with and for the same length of time as the counts that Eldridge claims were

subject to procedural error (Counts One, Two, and Six), any mistake the district court

might have made when calculating the Guidelines with respect to those disputed counts

could not have had any effect on the total length of Eldridge’s sentence. Thus, any error

was harmless. See United States v. Blount, 291 F.3d 201, 214 (2d Cir. 2002) (finding

sentencing error on individual counts did not prejudice the defendant under plain error

review, where “[t]he correct aggregate sentence would thus have been a prison term

identical to the sentence that was in fact imposed”).

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 Next, we disagree with Eldridge’s argument that he was entitled to an adjustment

pursuant to U.S.S.G. § 5G1.3(b) based on his characterization of the above-described 2009

convictions and his state forgery conviction. Section 5G1.3(b), by its plain language,

applies only to “undischarged term[s] of imprisonment.” Eldridge completed his

sentence for these convictions in 2012—well before his sentence in this case was

imposed—so his prior term of imprisonment was not “undischarged.” Eldridge was

not eligible for this adjustment.

Finally, we find that the district court did not clearly err in its determination of the

drug quantity attributable to Eldridge for purposes of calculating his base offense level.

There was ample testimony supporting the district court’s implicit finding that the

Montana Bridge and Newburgh gangs were intertwined, and thus the district court could

rightly attribute their sales to Eldridge. The record likewise contains sufficient evidence,

including the testimony of Jermone Laster, to support the calculated weekly sales

quantity. In any event, the record is replete with evidence on which the district court

could have based its calculated quantity of between 3,000 and 10,000 kilograms of

marijuana even excluding the weekly sales of the Montana Bridge gang. For these

reasons, we conclude that the district court did not clearly err in its calculation of the drug

quantity.

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VI. Eldridge’s Pro Se Claim

Eldridge, acting pro se, separately challenges his conviction by arguing that he was

deprived of a fair trial because the district court judge took on the role of the prosecutor

and denied defense counsel the opportunity to impeach a witness. In reviewing such a

challenge, this Court will reverse only where “the judge’s behavior was so prejudicial

that it denied [the defendant] a fair, as opposed to a perfect, tr[ia]l.” United States v.

Amiel, 95 F.3d 135, 146 (2d Cir. 1996) (citation omitted). “The test is whether the jury

was so impressed with the judge’s partiality to the prosecution that it became a factor in

determining the defendant’s guilt, or whether it appeared clear to the jury that the court

believed the accused is guilty.” Id. (internal quotation marks and alteration omitted).

Based on the record before us, the district court did not take on the role of the prosecutor

during the cross-examination of the witness in question, Cuyler. Contrary to Eldridge’s

characterization, the district court did not object on the prosecutor’s behalf. The record

reflects that after a colloquy in which the court sustained several of the prosecution’s

objections, defense counsel persisted on the same line of questioning; it was only then

that the judge asked the prosecution if it was objecting, at which point the judge again

sustained the objection. There was nothing improper with this exchange. See United

States v. Pisani, 773 F.2d 397, 403–04 (2d Cir. 1985) (finding no violation of a defendant’s

fair trial right where the judge questioned defense witnesses and made comments to

defense counsel, at least some of which “were provoked by counsel’s continuing to do

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things that the court had specifically cautioned” against). Further, the district court’s

statement that defense counsel’s questioning would be limited based on whether

Cuyler’s recollection was refreshed was not “leading” Cuyler, but rather an evidentiary

ruling. In any event, Eldridge has failed to show how the district court’s actions

prejudiced him. Eldridge does not explain why Cuyler’s testimony was critical to the

jury’s verdict, nor does he link Cuyler’s testimony to any specific count or critical piece

of evidence. He merely points to a single incident during a weeks-long trial, which

cannot support his claim. Eldridge has thus failed to show that the judge’s actions

deprived him of a fair trial.

* * *

We have considered the defendants’ remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons as well as those in the

accompanying opinion, we AFFIRM the defendants’ convictions and sentences.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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