United States v. Barton ( 2022 )

21-2112-cr
United States v. Barton
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 the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 22nd day of November, two thousand twenty-two.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 SUSAN L. CARNEY,
7 ALISON J. NATHAN,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. No. 21-2112-cr
15
16 ALLAN BARTON,
17
18 Defendant-Appellant.
19 ------------------------------------------------------------------
20 FOR DEFENDANT-APPELLANT: COLLEEN P. CASSIDY, Assistant
21 Federal Defender, Federal
22 Defenders of New
23 York, Inc., New York, NY
1
1
2 FOR APPELLEE: FRANK TURNER BUFORD,
3 Assistant United States
4 Attorney (Jo Ann M. Navickas,
5 Assistant United States
6 Attorney, on the brief), for Breon
7 Peace, United States Attorney,
8 Eastern District of New York,
9 Brooklyn, NY
10
11 Appeal from a judgment of conviction entered in the United States District
12 Court for the Eastern District of New York (William F. Kuntz, II, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the judgment of the District Court is AFFIRMED.
15 Allan Barton appeals from an August 27, 2021 judgment of conviction
16 entered in the United States District Court for the Eastern District of New York
17 (Kuntz, J.), following a jury trial at which he was found guilty of being a felon in
18 possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We
19 assume the parties’ familiarity with the underlying facts and the record of prior
20 proceedings, to which we refer only as necessary to explain our decision to
21 affirm.
22 I. The Admission of Statements by Uncalled Witnesses
23 Barton first argues that the District Court erroneously admitted the
2
1 statements of three uncalled witnesses, who allegedly told police officers that the
2 driver of a white van threatened them and had a gun. Assuming without
3 deciding that the District Court’s decision to admit these statements was error,
4 we conclude that any error was harmless.
5 The erroneous admission of evidence is harmless if “the appellate court
6 can conclude with fair assurance that the evidence did not substantially influence
7 the jury.” United States v. Riggi, 541 F.3d 94, 105 (2d Cir. 2008) (quotation marks
8 omitted). “In making this determination, we consider principally whether the
9 government’s case against the defendant[] was strong; whether the evidence in
10 question bears on an issue that is plainly critical to the jury’s decision . . .;
11 whether the evidence was emphasized in the government’s presentation of its
12 case and in its arguments to the jury; and whether the case was close.” Id.
13 (quotation marks omitted).
14 The evidence against Barton was overwhelming even without the specific
15 witness statements that bore directly on whether he possessed a gun. Police
16 officers testified that they approached a van after speaking with three men. As
17 they neared it, the driver fled the scene, sped several blocks with the officers in
18 pursuit, exited the van, and then ran, at which point the officers caught and
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1 arrested him. The officers also testified that the driver, whom they later
2 identified as Barton, was the only person in the van. Sharon Daniels, a lay
3 witness, testified that she watched police pursue a white van, saw a hand throw
4 an object out of the van’s driver-side window, heard a loud noise as the object hit
5 a car, smelled “a faint scent like a fire cracker,” found a gun nearby, and
6 discovered that her car (which was parked on the street of the chase) was
7 damaged. Def. App’x 75-81. Physical and photographic evidence supported
8 Daniels’s testimony and showed that the gun she found was shattered. Finally, a
9 forensic specialist testified that Barton’s DNA was on the gun.
10 Moreover, although its witnesses referred several times to statements
11 made by the three men, see e.g., Def. App’x 43, 70, the Government only briefly
12 referenced their statements during its closing remarks and focused primarily on
13 Daniels’s testimony, see Gov’t App’x 145 (“Members of the jury, simply put, if
14 you believe Miss Daniels’ testimony . . . you have proof beyond a reasonable
15 doubt to convict the defendant.”). Accordingly, we conclude that any error that
16 the District Court may have committed in admitting the statements was
17 harmless.
18 Likewise, a Confrontation Clause violation is harmless if the reviewing
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1 court is “satisfied beyond a reasonable doubt that the error complained of . . . did
2 not contribute to the verdict obtained.” United States v. Lee, 549 F.3d 84, 90 (2d
3 Cir. 2008) (quotation marks omitted). Because the evidence against Barton was
4 overwhelming, we conclude that any constitutional error that the District Court
5 may have committed in admitting the statements was also harmless. See id.6 II. The Uncalled Witness Charge
7 Barton next argues that the District Court erred by providing an uncalled
8 witness charge, in which it explained that both parties “had an equal opportunity
9 or lack of opportunity to call” any of the “several persons who were identified
10 during the trial, but who did not . . . testify.” Def. App’x 132. The charge also
11 instructed the jury not to “draw any inference or reach any conclusions as to
12 what they would have testified to had they been called” and that “[t]heir absence
13 should not affect [the jury’s] judgment in any way.” Id. at 132-33. In connection
14 with the charge, the District Court reminded the jury that “the law does not
15 impose on a defendant in a criminal case the burden or duty of calling any
16 witnesses or producing any evidence.” Id. at 133.
17 We review challenges to jury instructions de novo and will reverse a
18 conviction on the basis of an erroneous instruction “only where, viewing the
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1 charge as a whole, there was a prejudicial error.” United States v. Calderon, 944
2 F.3d 72, 90 (2d Cir. 2019) (quotation marks omitted). As for the specific
3 instruction that Barton challenges here, the general rule is that “[w]hen a witness
4 equally available to both sides is not called by either, the trial court may in its
5 discretion . . . instruct the jury that no unfavorable inference can be drawn
6 against either side.” United States v. Bahna, 68 F.3d 19, 22 (2d Cir. 1995). “[T]he
7 availability of a witness . . . depend[s] . . . on all the facts and circumstances
8 bearing upon a witness’s relation to the parties, rather than merely on physical
9 presence or accessibility.” United States v. Saa, 859 F.2d 1067, 1076 (2d Cir. 1988)
10 (quotation marks omitted). Here, the uncalled witnesses were equally
11 unavailable to both sides because they remained unidentified after police
12 canvassing and were never “peculiarly within the government’s control.”
13 United States v. Torres, 845 F.2d 1165, 1170 (2d Cir. 1988).
14 Barton argues that the uncalled witness charge was prejudicial because it
15 “suggested that the jury could not even consider the fact that the [three] men
16 disappeared and were not available at trial in determining whether to believe the
17 accusations.” Appellant’s Br. 40. Although the charge prohibited jurors from
18 considering the fact that the three uncalled witnesses did not testify, jurors
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1 remained free to draw inferences about the credibility of the statements that they
2 made based on the fact that they disappeared after speaking with the police,
3 which was the argument actually advanced by defense counsel during the
4 summation. Def. App’x 114. Under these circumstances, we conclude that even
5 if giving the charge were error, it was not prejudicial.
6 We have considered Barton’s remaining arguments and conclude that they
7 are without merit. For the foregoing reasons, the judgment of the District Court
8 is AFFIRMED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk of Court
7