United States v. Leitch (Richardson)

SUMMARY ORDER Kwame Richardson appeals from the judgment of the United States District Court for the Eastern District of New York (Bianco, J.), convicting him of importation of cocaine in violation of 21 U.S.C. §§ 952(a)(1), 960(a)(1), and 960(b)(2)(B)(ii); conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(l)(B)(ii)(II) and 846; and attempted possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(l)(B)(ii)(II) and 846. On appeal, Richardson argues: a) the prosecutor’s remarks in the Government’s rebuttal summation violated his due process rights; and b) the district court erred in denying his Rule 29 motion. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. 1. Prosecutorial Misconduct Richardson claims that the prosecutor’s rebuttal remarks improperly vouched for the credibility of the Government’s witnesses. The momentary utterance of the word “guarantee” was not objected to, no doubt because the prosecutor himself corrected his wording in almost the same moment; if objection had been made, the court would have been able to instruct the *30 jury there and then, but focusing the jury on the word, even to clarify, would likely have done more harm than good. Nevertheless, because Richardson did not object to these remarks at trial, we review the prosecutorial misconduct claim for plain error. Fed.R.Crim.P. 52(b); United States v. Young, 470 U.S. 1, 14-15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Thus, the error must be “particularly egregious,” that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Young, 470 U.S. at 15, 105 S.Ct. 1038 (internal quotation marks). In the context of prosecutorial misconduct, Richardson must show “ ‘(1) that the prosecutor’s statements were improper and (2) that the remarks, taken in the context of the entire trial, resulted in substantial prejudice.’” United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) (quoting United States v. Bautista, 23 F.3d 726, 732 (2d Cir.1994)). The prosecutor’s statements, while ill-advised, do not amount to plain error, in part because they were made in response to attacks by defense counsel. See Young, 470 U.S. at 17-18, 105 S.Ct. 1038; Perez, 144 F.3d at 210-11. The defense counsel implied that the Department of Homeland Security agents lied during their testimony to pin knowledge and intent on Richardson. In response, the prosecutor guaranteed that “there was absolutely nothing sinister going on.” In part because this was in response to an attack on the credibility of the Government’s witnesses, the prosecutor’s statements were unlikely to lead the jury astray or result in substantial prejudice. Young, 470 U.S. at 12, 105 S.Ct. 1038; United States v. Rivera, 971 F.2d 876, 883-84 (2d Cir.1992). 2. Insufficiency of the Evidence Richardson challenges the denial of his Rule 29 motion arguing insufficiency of evidence. We review this claim de novo. United States v. Amico, 486 F.3d 764, 780 (2d Cir.2007). We must affirm if “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “ ‘In reviewing such a challenge, we must view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor.’ ” Perez, 144 F.3d at 208 (quoting United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992)). Richardson’s first argument is that the jury reached inconsistent verdicts because he could not be convicted of importing cocaine (and conspiracy to distribute cocaine) if he was acquitted of conspiracy to import cocaine. However, criminal defendants cannot challenge inconsistent verdicts. United States v. Powell, 469 U.S. 57, 65-66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Richardson also contends that the Government has not proven the elements of the three charges. Viewing the evidence in a light most favorable to the Government, a rational juror could have found Richardson guilty beyond a reasonable doubt on the three counts on which he was convicted. For the foregoing reasons, and finding no merit in Richardson’s other arguments, we hereby AFFIRM the judgment of the district court.