United States v. Michel , 559 F. App'x 73 ( 2014 )

13-1786
United States v. Michel
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of March, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROSEMARY S. POOLER,
8 Circuit Judges,
9 CHRISTINA REISS,
10 District Judge.*
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- No. 13-1786
18
19 HELENE MICHEL, AKA ELAINE ALLONCE, AKA
20 ELENE ALLONCE,
21
22 Defendant-Appellant,
23
*
Chief Judge Christina Reiss, of the United States
District Court for the District of Vermont, sitting by
designation.
1
1 ETIENNE ALLONCE,
2
3 Defendant.
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5
6 FOR DEFENDANT-APPELLANT: DAVID A. BYTHEWOOD, Mineola, NY.
7
8 FOR APPELLEE: CHARLES P. KELLY (David C.
9 James, on the brief) for Loretta
10 E. Lynch, United States Attorney
11 for the Eastern District of New
12 York, New York, NY.
13
14 Appeal from a judgment of the United States District
15 Court for the Eastern District of New York (Bianco, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18 AND DECREED that the judgment of the district court be
19 AFFIRMED.
20
21 Helene Michel was convicted by a jury of health care
22 fraud, conspiracy to commit health care fraud, and wrongful
23 disclosure of health information, and was sentenced to,
24 inter alia, 144 months’ imprisonment. Michel claims that
25 the district judge denied her a fair trial and substantive
26 due process by (1) displaying bias during trial, (2)
27 precluding Michel from adequately presenting her defense,
28 and (3) relying on unproven facts at sentencing. We assume
29 the parties’ familiarity with the underlying facts, the
30 procedural history, and the issues presented for review.
31
32 “We review evidentiary rulings for abuse of
33 discretion.” United States v. Kelley, 551 F.3d 171, 174 (2d
34 Cir. 2009). “We will find an abuse of discretion only where
35 the trial judge ruled in an arbitrary or irrational
36 fashion.” Id. at 175 (internal quotation marks omitted).
37
38 “[T]he trial court may actively participate and give
39 its own impressions of the evidence or question witnesses,
40 as an aid to the jury, so long as it does not step across
41 the line and become an advocate for one side.” United
42 States v. Filani, 74 F.3d 378, 385 (2d Cir. 1996). “In its
43 participation at trial a district court should ask those
44 questions necessary for such purposes as clarifying
45 ambiguities, correcting misstatements, or obtaining
46 information needed to make rulings.” Id. at 386 (internal
2
1 quotation marks omitted). “In reviewing the trial
2 transcript we must take care not to focus on isolated
3 episodes, but to assess the trial court’s inquiries in light
4 of the record as a whole.” Id.
5
6 If the defendant does not object to the district
7 court’s questioning or evidentiary rulings, we review only
8 for plain error. See id. at 387; United States v. Simels,
9 654 F.3d 161, 168 (2d Cir. 2011). In conducting plain-error
10 analysis, we consider whether there was “(1) error, (2) that
11 is plain, and (3) that affects substantial rights.” Johnson
12 v. United States, 520 U.S. 461, 466-67 (1997) (internal
13 quotation marks and brackets omitted). If all three
14 conditions are met, we may then exercise “discretion to
15 notice a forfeited error, but only if (4) the error
16 seriously affects the fairness, integrity, or public
17 reputation of judicial proceedings.” Id. (internal
18 quotation marks and brackets omitted).
19
20 1. Bias. Michel adduces numerous claims of the
21 district court’s bias against her. A review of the trial
22 and sentencing transcripts, however, establishes that the
23 district court’s impartiality was never compromised.
24
25 Many of Michel’s examples are trivial. The district
26 court’s request at a sidebar that counsel stop interrupting
27 each other could hardly be labeled improper admonishment.
28 Equally unobjectionable was the judge’s statement, outside
29 the presence of the jury and after a verdict of guilty had
30 been returned, that defense counsel’s belated objection to
31 the admission of certain brokerage records during the
32 forfeiture phase of the trial was “simply not fair” because
33 it led to unnecessary delay. App. 1055-56.
34
35 The district court’s comments during witness testimony
36 were also proper, and consistent with the court’s duty to
37 “clarify[] ambiguities, correct[] misstatements, [and]
38 obtain[] information needed to make rulings.” Filani, 74
39 F.3d at 386 (internal quotation marks omitted). The
40 district court did not “become an advocate” for the
41 government. Id. at 385. To the contrary, the district
42 court sustained defense objections when those objections
43 were meritorious. See, e.g., App. 104.
44
45 The district court also emphasized to the jury that the
46 court’s statements should not be taken to suggest an
47 outcome, and that the jury should draw no conclusions from
3
1 the court’s questioning. See App. 904-06; see also United
2 States v. Mickens, 926 F.2d 1323, 1327-28 (2d Cir. 1991)
3 (“Moreover, any possible prejudice to defendants-appellants
4 was cured by the court’s cautionary instruction.”).
5
6 To the extent Michel challenges any of the underlying
7 evidentiary rulings on the merits, none constitute an abuse
8 of discretion and all are grounded in the Federal Rules of
9 Evidence. For example, business records can be
10 authenticated by persons other than the custodian, see Fed.
11 R. Evid. 803(6)(D); and the court may conditionally admit
12 evidence subject to proof of the connecting facts, see id.
13 104(b). Michel does not point to a single evidentiary
14 ruling that was error, much less plain error suggesting
15 bias.
16
17 2. Preclusion of Michel’s Defense. Michel argues
18 that the district court improperly precluded her trial
19 defense by ruling that, if Michel took the stand to discuss
20 her divorce from her co-defendant ex-husband, the government
21 would be able to cross-examine her regarding their marital
22 and business relationship and challenge her credibility.
23 The district court did not abuse discretion by allowing
24 cross-examination that goes to “matters affecting the
25 witness’s credibility.” Id. 611(b).
26
27 In any event, Michel’s challenge to this ruling is
28 unsustainable because she ultimately chose not to testify.
29 See Luce v. United States, 469 U.S. 38, 41-43 (1984) (“Any
30 possible harm flowing from a district court’s in limine
31 ruling permitting impeachment by a prior conviction is
32 wholly speculative . . . [w]hen the defendant does not
33 testify[.] . . . We hold that to raise and preserve for
34 review the claim of improper impeachment with a prior
35 conviction, a defendant must testify.”). We “cannot assume
36 that the adverse ruling motivated [the] defendant’s decision
37 not to testify.” Id. at 42.
38
39 3. Sentencing. The district court found at
40 sentencing that Michel stole patient records from nursing
41 homes. Michel argues that no witness testified directly
42 that Michel stole anything. However, a court may use even
43 “acquitted conduct in determining a defendant’s” sentence,
44 as long as it finds the facts at sentencing by a
45 preponderance of the evidence. See United States v. Vaughn,
46 430 F.3d 518, 521, 525-26 (2d Cir. 2005). There was more
47 than enough circumstantial evidence presented at trial for
4
1 the district court to find by a preponderance of the
2 evidence that Michel stole patient records.
3
4 The district court also stated at sentencing that it
5 had observed Michel throughout trial and found her to be
6 competent and alert. The remark runs counter to the
7 defense’s suggestion that Michel’s “dissociative identity
8 disorder” was a mitigating factor, but is consistent with
9 the unanimous opinions of the medical experts, including one
10 specifically appointed by the district court to monitor
11 Michel during trial.
12
13 We have considered all of Michel’s remaining arguments
14 and conclude that they are without merit. The judgment of
15 the district court is hereby affirmed.
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
5