United States v. Buczek , 457 F. App'x 22 ( 2012 )

10-4799
United States v. Buczek
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of January, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-4799
18
19 SHANE C. BUCZEK,
20
21 Defendant-Appellant.
22
23
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25
26 FOR APPELLANT: Peter J. Tomao
27 Garden City, NY
28
1
1 FOR APPELLEE: Monica J. Richards, Assistant
2 United States Attorney, for
3 William J. Hochul, Jr., United
4 States Attorney,
5 Western District of New York,
6 Buffalo, NY
7
8 Appeal from a judgment of the United States District
9 Court for the Western District of New York (Skretny, C.J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the district court’s judgment is AFFIRMED.
13
14 Shane Buczek appeals from a judgment entered in the
15 United States District Court for the Western District of New
16 York convicting him of one count of bank fraud and one count
17 of committing an offense while on pretrial release. We
18 assume the parties’ familiarity with the underlying facts,
19 the procedural history, and the issues presented for review.
20
21 [1] Buczek argues that the evidence adduced at trial was
22 insufficient to establish that he acted knowingly and with
23 the intent to defraud a financial institution. We review a
24 sufficiency challenge de novo. United States v. Yannotti,
25 541 F.3d 112, 120 (2d Cir. 2008). A defendant challenging
26 his conviction on sufficiency grounds “bears a heavy burden
27 because a reviewing court must consider the evidence ‘in the
28 light most favorable to the prosecution’ and uphold the
29 conviction if ‘any rational trier of fact could have found
30 the essential elements of the crime beyond a reasonable
31 doubt.’” United States v. Aguilar, 585 F.3d 652, 656 (2d
32 Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319
33 (1979)). “The government’s proof need not exclude every
34 possible hypothesis of innocence, and where there are
35 conflicts in the testimony, we defer to the jury’s
36 determination of the weight of the evidence and the
37 credibility of the witnesses, and to the jury’s choice of
38 the competing inferences that can be drawn from the
39 evidence.” United States v. Best, 219 F.3d 192, 200 (2d
40 Cir. 2000) (internal citations and quotation marks omitted).
41
42 At issue is whether the evidence sufficed to show that,
43 when he attempted to transfer funds to HSBC, Buczek knew
44 that he did not actually have an account at the Depository
2
1 Trust and Clearing Corporation (“DTCC”) and thus intended to
2 defraud HSBC. According to Buczek, the evidence showed that
3 he legitimately believed he had a “secret account” at DTCC
4 funded by the United States Treasury Department.
5
6 The evidence of Buczek’s knowledge was sufficient to
7 support a jury finding that he had the requisite intent to
8 defraud HSBC. First, the Government introduced evidence
9 that the DTCC did not offer any individual accounts; so the
10 jury could logically infer that Buczek had never deposited
11 any money in his supposed DTCC account, had never withdrawn
12 any money from that account, and had never checked the
13 balance of that account--since the account did not in fact
14 exist. Under those circumstances, the natural consequence
15 of providing a creditor information for such an account is
16 that there will be no funds in that account to remit to the
17 creditor.
18
19 Second, the Government introduced evidence that Buczek
20 repeatedly purchased goods at Best Buy very shortly after
21 purporting to make direct check payments on his credit card
22 account. The jury could reasonably infer that this timing
23 reflected his awareness that he had a small interval of time
24 to incur additional credit card charges before his checks
25 bounced.
26
27 Third, FBI agent Falkowski testified that Buczek denied
28 using a DTCC routing number to make payments on his credit
29 card. If Buczek genuinely believed his DTCC account was
30 real, he would have had no reason to lie to authorities
31 about having attempted to make payments from that account.
32
33 [2] Buczek also argues that the evidence was insufficient
34 to show that his conduct placed a financial institution at
35 risk of loss, or that the financial institution in question
36 was federally insured. But the evidence established that
37 Buczek never paid more than $8,000 that he charged on his
38 HSBC credit card. This plainly constituted a loss to HSBC,
39 which financed Buczek’s Best Buy purchases. Buczek contends
40 the Government failed to show that “HSBC Bank Nevada” (the
41 entity that administered his credit card account) was FDIC
42 insured. However, the testimony that HSBC “owned” Buczek’s
43 credit account and is FDIC insured was sufficient for the
44 jury to infer an adverse effect on a federally insured
45 financial institution.
3
1 [3] Buczek argues that the admission of various out-of-
2 court statements violated the Sixth Amendment’s
3 Confrontation Clause. “[I]f an out-of-court statement is
4 testimonial in nature, it may not be introduced against the
5 accused at trial unless the witness who made the statement
6 is unavailable and the accused has had a prior opportunity
7 to confront that witness.” Bullcoming v. New Mexico, 131 S.
8 Ct. 2705, 2713 (2011). Confrontation Clause violations are
9 subject to harmless error review if the error is preserved.
10 United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004).
11 Otherwise, review is for plain error. United States v.
12 Bruno, 383 F.3d 65, 78 (2d Cir. 2004). In that event, we
13 will reverse a defendant’s conviction only if there is “(1)
14 error, (2) that is plain, . . . (3) that affects substantial
15 rights” and “(4) the error seriously affected the fairness,
16 integrity, or public reputation of judicial proceedings.”
17 Id. (internal quotation marks and alterations omitted).
18 For an error to affect a defendant’s substantial rights, it
19 generally must “affect[] the outcome of the district court
20 proceedings,” meaning “there must be a reasonable
21 probability that the error affected the outcome of the
22 trial.” United States v. Marcus, 130 S. Ct. 2159, 2164
23 (2010) (internal quotation marks omitted).
24
25 Buczek did not object to the admission of any of the
26 out-of-court statements that were arguably testimonial in
27 nature, and therefore we review their admission for plain
28 error. Each of these statements concerned facts that were
29 established by other witnesses at trial, including Buczek’s
30 use of a fictitious DTCC account and routing number, his use
31 of a “bonded promissory note” to attempt to pay down his
32 HSBC credit account, and the absence of any Buczek account
33 at DTCC (which, as noted above, did not offer individual
34 accounts). Because the record contained ample other
35 evidence that Buczek engaged in the transactions evidenced
36 by the challenged testimony, there is no reasonable
37 probability that the admission of that testimony affected
38 the outcome of the trial.
39
40 [4] Buczek cites testimony describing the redemption theory
41 (to which he claims to subscribe) as “nothing other than a
42 scam” and describing his account at HSBC as a “bust out
43 account,” and argues that this testimony should have been
44 excluded as impermissible opinion evidence that invaded the
45 province of the jury by telling it what result to reach.
4
1 See United States v. Scop, 846 F.2d 135, 139-40 (2d Cir.
2 1988). However, Buczek did not object to either statement
3 at trial. Because there was ample evidence in the record
4 for the jury to conclude that Buczek was aware that he had
5 provided fictitious account information to HSBC, Buczek’s
6 substantial rights were unaffected by the admission of the
7 challenged testimony, so its admission did not amount to
8 plain error.
9
10 [5] Buczek maintains that he did not knowingly waive his
11 right to counsel and that the district court erred by
12 failing to specify the penalties he faced if convicted. The
13 Sixth Amendment guarantees criminal defendants “both the
14 right to counsel and the power to defend themselves without
15 counsel if that decision is made intelligently and
16 knowingly, with full awareness of the right to counsel and
17 the consequences of its waiver.” United States v. Fore, 169
18 F.3d 104, 107-08 (2d Cir. 1999) (internal quotation marks
19 omitted). To ensure that a waiver of the right to counsel
20 is made intelligently and knowingly, “[t]he district judge
21 and defendant should engage in a colloquy on the record, but
22 there is no scripted procedure for this discussion.” Id. at
23 108.
24
25 Although the district court did not specify the
26 potential punishment, the court explained several times the
27 risks of appearing pro se, and warned Buczek that he could
28 face substantial prison time. “Our case law does not
29 require an explicit accounting of the potential punishment”
30 in order for a waiver of the right to counsel to be deemed
31 intelligent. Id. at 108.
32
33 [6] Buczek challenges the district court’s refusal to
34 reduce his Guidelines offense level on the ground that he
35 failed to accept responsibility. “A district court’s
36 decision to deny credit for acceptance of responsibility,
37 primarily a factual determination, will be upheld unless it
38 is without foundation.” United States v. Kumar, 617 F.3d
39 612, 635 (2d Cir. 2010) (internal quotation marks omitted).
40 Buczek’s post-conviction motions espousing conspiracy
41 theories to challenge the “jurisdiction” of the district
42 court and of the United States Attorney’s Office, as well as
43 his failure to cooperate with the probation department in
44 its presentencing investigation, confirm that Buczek was not
45 entitled to an offense level reduction under U.S.S.G.
46 § 3E1.1.
5
1 We have considered Buczek’s remaining arguments and
2 find them to be without merit. For the foregoing reasons,
3 the judgment of the district court is hereby AFFIRMED.
4
5
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
9
6