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United States District Court, S.D. New York

June 2, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendant Jude T. Barbera ("Barbera") has moved pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure to set aside the verdict of guilty rendered against him on the grounds that the government failed to establish venue, and alternatively, pursuant to Fed.R.Crim.P. 33 (a), for a new trial on the grounds that the government's rebuttal summation, by vilifying defense counsel and shifting the burden of proof, and the Court's improperly instructing the jury of IRS regulations concerning "employee" compensation, substantially prejudiced the defendant.

  For the reasons set forth below, the motions are denied.

 Prior Proceedings

  Indictment S1 02 Cr. 1268 (AGS) (the "Indictment") charged Barbera in twelve counts: one count of conspiracy to defraud the United States and to commit federal tax offenses; five counts of aiding and assisting in the preparation and presentation of a false individual income tax return; one count of conspiracy to commit health care fraud offenses against the United States; one count of theft from an employee benefit plan; one count of making false statements relating to health care; one count of mail fraud; one count of health care fraud; and one count of obstructing a criminal investigation of federal health care offenses. The Indictment charged six unlawful acts on the part of Barbera. First, it alleged that Barbera, as a doctor authorized to practice medicine, caused his Brooklyn medical practice to pay Thomas Gelardo ("Gelardo") a salary and to provide Gelardo with W-2 forms, when in fact Gelardo was not a legitimate employee. Second, the Indictment charged that Barbera caused his Brooklyn medical practice to include Gelardo in the practice's medical insurance plan, which was obtained through Local 348 of the United Food and Commercial Workers International Union (the "Union"), and that on three occasions Barbera defrauded the Union's medical insurance fund by submitting or causing to be submitted false insurance claims on both July 25, 2000 and July 27, 2000 for Gelardo and on August 16, 2000 on behalf of Gina Gelardo. Lastly, the Indictment alleged that Barbera submitted false charts of the July 25 and August 16 visits in response to a grand jury subpoena.

  The case was assigned to the Honorable Allan G. Schwartz sitting in White Plains. After Judge Schwartz's tragic and untimely death, various judges filling in on White Plains matters signed orders relating to the case. As speedy trial deadlines approached, the case was assigned to this Court.

  Trial commenced on June 12, 2004. The government called ten witnesses: FBI agent Vincent Presutti ("Presutti"); Claire Watkins ("Watkins"); Marina Adelman ("Adelman"); Dr. Anthony Scarafile ("Dr. Scarafile"); Rafael Chavez ("Chavez"); Luba Gonzales ("Gonzales"); Scott Curtis ("Curtis"); Peter Marino ("Marino"); Elvira Yasova ("Yasova"); and IRS revenue agent Robert Russo ("Agent Russo"). The defense cross-examined each government witness, with the exception of Dr. Scarafile and Marino, and called one witness, Gina Gelardo.

  The evidence at trial established that the defendant is a urologist who ran his own urology practice located at 2519 Avenue U, Brooklyn, New York, which was called "Jude T. Barbera, M.D., P.C." (See Trial Transcript (hereinafter, "Tr.") at 135.) Barbera put Gelardo, a member or "soldier" of the Luchese Organized Crime Family of La Cosa Nostra, on the payroll of his medical practice and thereby gave Gelardo a "no-show" job. Barbera also put Gelardo on his medical practice's health insurance plan.

  With respect to the tax fraud charges (Counts One through Six), the evidence established that beginning in or about 1995, Barbera agreed with Gelardo to claim falsely in tax filings that Gelardo was an employee of Jude T. Barbera, M.D., P.C. This enabled Gelardo to claim falsely on Gelardo's own individual income tax returns that Gelardo was a legitimate salaried employee, when, in fact, he was a full-time member of the mob. (See Government Exhibits ("GX") 50, 51, 52.) Accordingly, for the years 1995 through 2000, Barbera arranged to have Jude T. Barbera, M.D., P.C. provide Gelardo with W-2 forms which made it appear that Gelardo was a bona fide employee of Jude T. Barbera, M.D., P.C. (GX 402-09; see id. 500-06; Tr. at 419-29.)

  Also for the years 1995 through 2000, Barbera arranged for Jude T. Barbera M.D., P.C. to file corporate income tax returns which contained a deduction for Gelardo's purported salary, which had the effect of improperly reducing Jude T. Barbera, M.D., P.C.'s ordinary income. (GX 435-40; Tr. at 433-36.) In accordance with the Internal Revenue Service laws, Subchapter S Corporations were required to file income tax returns, but not required to pay income taxes in their own rights. (Tr. at 433-36.) Barbera's individual income tax returns under-reported the defendant's income from Jude T. Barbera, M.D., P.C. (See Tr. at 434-36; GX 442-47.)

  At trial, three former and current employees of Barbera's medical practice, as well as the defendant's brother who shared office space with him, testified that Gelardo did not work at the medical practice and that they had never seen him perform any services for the medical practice. Watkins worked as a bookkeeper for Barbera's medical practice for approximately ten years from 1993 up to and including the time of trial and testified that in approximately 1995 Barbera instructed her to put Gelardo on the payroll (Tr. at 76-77), that she then sent a W-4 form to Gelardo's address in Mount Vernon, New York (Tr. at 77-80), and proceeded to write payroll checks to Gelardo every two weeks from 1995 through 2000, which she mailed to him at his home address in Westchester County. The evidence also established that Gelardo lived in Westchester County for the duration of the charged conspiracy, first in Mount Vernon until approximately 1998 (Tr. at 80; GX 107, 401-03), and then in Crestwood, New York. (GX 107, 404-08). Watkins testified that she never met Gelardo in the ten years that she worked for Barbera's medical practice. (Tr. at 78.)

  Adelman, who worked for Barbera as his office manager from approximately 1990 until 2001, testified that she never saw Gelardo performing any work in Barbera's medical office. Although Adelman had the responsibility of hiring employees for the medical practice, she testified that she did not hire Gelardo and that she never had a conversation with Barbera about what Gelardo's job was. (Tr. at 150-51.) She testified that the first time she met Gelardo was at a social event in approximately 1995 or 1996 (Tr. at 144-45), and that she saw Gelardo at Barbera's medical practice in Brooklyn on only one or two occasions when Gelardo accompanied his father to an appointment. (Tr. at 150). She also testified that Watkins mailed Gelardo's paychecks to Gelardo. (Tr. at 148-49.)

  Yasova worked as a nurse for Barbera from August 1995 through December 1997 (Tr. at 373), and testified that she never met anyone named Gelardo and did not even hear his name during the two and a half years she worked at the defendant's medical practice. (Tr. at 376). Dr. Scarafile, Barbera's brother, who worked in the same office as the defendant and signed payroll checks on occasion for the defendant, testified that at the time he was signing Gelardo's payroll checks, he never saw Gelardo in the office and never observed Gelardo working in the office. (Tr. at 248-49.) Dr. Scarafile also testified that he asked his brother, the defendant, why Gelardo was on the payroll and Barbera said that Gelardo was going through a difficult time and "he's a good friend of the family and I'm helping him." (Tr. at 248-49.)

  Agent Presutti of the FBI testified that he and other law enforcement agents interviewed Barbera at his medical office in December 2000. At the beginning of the interview, Barbera told the agents that Gelardo worked as his "driver." (Tr. at 37.) After the agents responded with skepticism, Barbera admitted that Gelardo did not work as his driver and said that Gelardo had asked Barbera to put him on the payroll because Gelardo "needed a source of income." (Tr. at 38-40.) Barbera admitted that he had paid Gelardo between $20,000 and $30,000 a year since 1996.

  With respect to Counts Seven through Eleven, the evidence at trial established that Barbera arranged for Gelardo to obtain medical insurance for Gelardo, his wife Linda Gelardo, and his daughter Gina Gelardo, on the urology practice's medical insurance plan. The Gelardo family's ability to obtain medical insurance was based on the representation that Gelardo was a genuine employee of Jude T. Barbera, M.D., P.C. (GX 205; Tr. at 298-300.) The medical insurance plan was a union-run plan which required that the recipient of medical insurance and related benefits be a bona fide employee and member of the union. (Tr. at 319.)

  In the beginning of 2000, Barbera arranged for Gelardo to join Local 348 of the Union, and for Gelardo, his wife and his daughter to receive health insurance and other benefits from the Union's Health and Welfare Fund ("Union Fund") (GX 205, 206), by representing to the Union Fund that Gelardo was an employee of Jude T. Barbera, M.D., P.C. The application, which Watkins filled out in part and which bore Gelardo's signature, stated that Gelardo was employed as a "medical assistant" in Barbera's medical practice. (GX 205; Tr. at 98-100, 298-99.)

  Adelman testified that in approximately 2000, Barbera had instructed her to put Gelardo on the medical insurance plan. (Tr. at 154-55.) After that, and in response to Barbera's direction, Adelman instructed Watkins to put Gelardo on the medical plan. (Tr. at 155.) Watkins testified that after Adelman told her to put Gelardo on the Union's medical plan, she assembled the required forms and sent them to Gelardo. (Tr. at 96-98.) In particular, Watkins sent the application form (GX 205) to Gelardo at his home in Westchester. (Tr. at 99-100). Watkins also wrote out monthly checks from Barbera's medical practice for Union dues and medical insurance payments on behalf of Gelardo and sent them to the Union throughout 2000. (Tr. at 100-05; GX 109A-109W.)

  In all, Gelardo and his dependents received in excess of $13,000 in medical benefits, as well as other welfare benefits including prescription medication and life insurance from the Union Fund to which they were not entitled. (Tr. at 319-20, 334.) Barbera admitted that he put Gelardo on the Union's health insurance plan after Gelardo asked Barbera for medical coverage, and that Barbera paid approximately $300 per month to the Union Fund on behalf of Gelardo. (Tr. at 42-43.)

  During its rebuttal summation, the government commented as follows:

Then you heard Mr. McDonald's closing. That, we submit, is the third fake story, taking the opening and incorporating the facts and giving you — packaging you a new version, as if you are willing to believe all these different fake stories. (Tr. at 682.)
* * *
He thinks if he says it forcefully enough and dramatically enough, you're just going to give in to his will. (Tr. at 684.)
* * *
But let's focus on what Mr. McDonald was doing with this and why he went down this road, and you'll see that he came up with a fourth bogus story, just because he's got to throw fog and confusion and try to throw away all this evidence. (Tr. at 687.)
* * * Now they come up with a new theory because they've got to throw mud at the government, and the new theory is that TJ came to him looking for a job. Speaking out of both sides of his mouth, you know, TJ did not need a job. You know TJ's lifestyle. (Tr. at 688.)
* * *
Every time Mr. McDonald told you you can't look at inside his head, he's telling you not to use your judgment, not to use your experience, not to use your good wisdom. Don't listen to him. Don't be intimidated. Do your jobs. Follow the evidence. We know you will. (Tr. at 689.)
* * *
I've got a bridge to sell you. Mr. McDonald might sell it to you. (Tr. at 694-95.)
* * *
And when Mr. McDonald ignores it and tries to explain everything else, he's trying to scam someone else, and that's you. (Tr. at 695.)
* * *
But there's a lot more than that that Mr. McDonald didn't address because even his creative mind can't come up with a response to them. (Tr. at 697.)
* * *
Now, if they don't believe the witnesses, they can cross them. They can get into this a little more. Didn't bother, because they knew what they were going to find. Didn't bother because it would just be more testimony on cross to corroborate what the government's saying, what the evidence shows you, what you already know. They're playing games with you. Do not be fooled. Keep your eye on the ball. Keep your eye on the evidence. (Tr. at 679.)
* * *
Mr. Chavez was on the stand folks, right? Mr. McDonald questioned him. He could have asked him that question. He could have asked him, did you know he was on the plan? What checks do you have? Did you ever find out? Did you ever do anything? Didn't ask him because to the defense this is a game. They want to see if they can fool you. He doesn't ask him these questions and he spends so much time trying to tell you how it must really be. It's not evidence, folks, it's a game. You're not playing a game. You know you're not. (Tr. at 692.)
* * *
You heard a lot of stuff about these charts, folks. McDonald spent a lot more time in closing than he did in questioning the witnesses about them. (Tr. at 696.)
  The jury returned a verdict on June 18, 2003. It convicted Barbera of Counts One through Eleven, and acquitted him of Count Twelve, the obstruction of a criminal health care investigation charge. With respect to the substantive health care fraud counts — Counts Eight, Nine, Ten and Eleven — the jury, having responded to special interrogatories, found Barbera guilty by reason of his practice having obtained medical insurance for Gelardo, rather than having committed theft or making false statements or fraud by reason of any of the three contested medical insurance claims.

  Post trial the action was returned to White Plains and assigned to the Honorable Stephen C. Robinson. The filings on the instant motions were completed on October 9, 2003. The action was again reassigned to this Court on March 30, 2004.

 The Rule 29 Motion is Denied

  A defendant challenging the sufficiency of the evidence under Rule 29 bears a "heavy burden." United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). In considering a motion for judgment of acquittal, "the Court `must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.'" United States v. Guadaqna, 183 F.3d 122, 129 (2d Cir. 1999) (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)). A jury verdict must be upheld if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at 130 (quoting United States v. Resto, 824 F.2d 210, 212 (2d Cir. 1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))) (emphasis omitted). "In other words, the court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Id. (internal quotation marks and citation omitted); see also United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996). In a close case, where "either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter." Autuori, 212 F.3d at 114 (internal quotation marks and citation omitted).

  Moreover, in assessing the proof at trial, the Court must analyze each piece of evidence "not in isolation but in conjunction," United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994), and must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from others." Guadagna, 183 F.3d at 130; see also United States v. Monica, 295 F.2d 400, 401 (2d Cir. 1961).

  In considering the government's proof for Rule 29 purposes, the Court must view the evidence in the light most favorable to the government, see Autuori, 212 F.3d at 114; Guadagna, 183 F.3d at 129, and must "credit [] every inference that the jury might have drawn in favor of the government." Hernandez, 85 F.3d at 1029; see also United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996). All issues of credibility should be resolved in the government's favor. See United States v. Abelis, 146 F.3d 73, 80 (2d Cir. 1998). In particular, a court must credit the testimony of cooperating witnesses, even when such testimony is "pock-marked with inconsistencies." United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002). Indeed, "the assessment of the credibility of witnesses is generally beyond the scope of review" of sufficiency claims. Schlup v. Delo, 513 U.S. 298, 330 (1995).

 The Government Established Venue

  Barbera has alleged that the government failed to establish venue for each of the counts of conviction and moves for a judgment of acquittal under Rule 29 on Counts One through Eleven. In so doing, he contends that venue is proper where a criminal act was "committed," United States v. Rodriquez-Moreno, 526 U.S. 275, 280 (1999), and that to determine the nature of the offense and the location of the act or acts constituting it, the court must examine "the key verbs which define the criminal offense in the statute." United States v. Brennan, 183 F.3d 139, 145 (2d Cir. 1999). Under this test, Barbera argues, the government did not establish venue.

  However, in Brennan, the Second Circuit noted that the Supreme Court "cautioned against overly restrictive reliance on a `verb test,'" and "asserted that `verbs are [not] the sole consideration in identifying the conduct that constitutes an offense.'" Brennan, 183 F.3d at 145 (quoting Rodriguez-Moreno, 526 U.S. at 280); see also United States v. Kim, 246 F.3d 186, 191 (2d Cir. 2001) (noting that the Supreme Court "warned against an overly rigid application of the key verb test"). Instead, in order to determine whether venue has been established, the court should "first identify the conduct constituting the offense and then determine where that conduct occurred." Kim, 246 F.3d at 191.

  Counts Two through Six charged the defendant with aiding and assisting in the preparation of Gelardo's false income tax returns, filed in 1997 through 2001, respectively. In his motion to set aside the verdict, Barbera argues that "the only alleged act that Dr. Barbera performed to `aid and assist' (the key verbs) the preparation of the returns was the issuance of the yearly W-2 Forms." (Def. Br. at 10.) Barbera further argued that the W-2 forms were "issued" in Brooklyn, not in the Southern District of New York.

  The evidence at trial established that Barbera aided and assisted the preparation of Gelardo's false income tax returns by sending Gelardo a W-4 form when Barbera initially put Gelardo on the payroll, by sending him fake W-2 forms annually, and by sending him payroll checks every two weeks. Specifically, Watkins testified that after Barbera instructed her to put Gelardo on the payroll, she mailed a W-4 form to Gelardo's home in Westchester and his payroll checks to him every two weeks. (Tr. at 85.) Adelman also testified that at times she mailed the payroll checks to Gelardo. (Tr. at 148-49.) Watkins testified further that she mailed W-2 forms to Gelardo each year. (Tr. at 92.) The W-2 forms that Barbera sent to Gelardo are the same W-2 forms that Gelardo submitted to the IRS with his personal income tax returns. (GX 402-07.)

  The proof meets the applicable preponderance of the evidence that there was venue in the Southern District of New York for the tax counts based on the numerous mailings of W-4 and W-2 forms as well as payroll checks from Barbera to Gelardo's home in Westchester. The evidence also established that the tax preparer for Jude T. Barbera, M.D., P.C. was located at Penn Plaza in Manhattan. (Tr. at 456.) Therefore, the defendant's own corporate tax returns, which improperly contained a deduction for Gelardo's purported salary, were prepared in the Southern District of New York. This provides further evidence of venue for the tax conspiracy count (Count One) for which Barbera was convicted.

  The evidence with respect to Counts Eight through Eleven, the fraud counts, included representation that Gelardo was eligible for medical coverage and benefits from the Union Fund. (See Court Exh. 10 (Special Verdict Form)). The evidence established that the Union application (GX 205), which contained the representation to the Union that Gelardo was an employee of Barbera and therefore was eligible for benefits, was sent by Watkins from Barbera's Brooklyn office by mail to Gelardo's home in Westchester (Tr. at 98), and contained the misrepresentation that Gelardo worked as Barbera's "medical assistant." This form which contained Gelardo's signature, ultimately was sent to and relied upon by the Union Fund in providing medical benefits to Gelardo and his dependents. (GX 205; Tr. at 298-99.)

  Watkins testified that after Barbera instructed Adelman, and Adelman in turn instructed Watkins, to put Gelardo on the health insurance plan, Watkins requested the enrollment forms from the Union Fund. (Tr. at 97-100.) The Union Fund's offices were located in Queens, New York. (Tr. at 292.) Watkins testified that she received the application form from the Union and then filled out parts of the application, indicating that Gelardo worked as a "medical assistant" for the defendant, and then sent this application form to Gelardo in Westchester. (Tr. at 98-100, 119, 121.) Gelardo sent the completed application back to Barbera's office in Brooklyn and then Watkins sent it to the Union Fund in Queens.*fn1 (Tr. at 119.)

  Barbera argued that because Watkins ultimately mailed the completed application form from the defendant's Brooklyn office to the Union's Queens office, venue is not established, and again cites United States v. Brennan, 183 F.3d at 147, which held in part that "venue for mail fraud lies only where the item was deposited in the mail and received from the mail" and does not include the districts where the mail has traveled. (Def. Br. at 11.) However, in Brennan, the Second Circuit held that when mail had only "traveled through" a district, venue is not established in that district and in that case, venue was based solely on the fact that the U.S. Postal Service had routed the mail through the Eastern District of New York. Brennan, 183 F.3d at 144, 146-47. Here, by contrast, the mail, namely, the fraudulent application form, was sent from one co-conspirator in Brooklyn to another co-conspirator in this district; thus, it was not merely "routed" through the Southern District by the Postal service. In fact, it was "received from the mail" and then "deposited in the mail" in the Southern District of New York. The application form that the Union relied on in giving Gelardo and his dependents medical benefits was mailed to and from a co-conspirator in Westchester. Therefore, actions in furtherance of the fraudulent scheme — mailing the fraudulent application for medical benefits — were undertaken in the Southern District of New York and are sufficient to establish venue. See Kim, 246 F.3d at 191-92.

  The evidence at trial also established that numerous other mailings went to Gelardo in Westchester. The evidence showed that after Gelardo began receiving medical benefits, the Union Fund mailed numerous Explanation of Benefits Forms to Gelardo's home in Westchester. (Tr. at 316; see GX 216, 217, 218.) These Explanation of Benefits Forms enumerated the medical services that Gelardo had received and reflected whether the Union Fund's medical plan covered those services. These documents were mailed by the Union Fund to Gelardo in Westchester and Gelardo received them in furtherance of the fraud schemes charged in Counts Seven through Eleven of the Indictment. These mailings also conclusively establish venue in the Southern District of New York on Counts Seven through Eleven. See Brennan, 183 F.3d at 145.

  There was sufficient evidence to establish venue in this district.

 The Rule 33 Motion Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R. Crim. P. 33(a). Such motions are not favored and should be granted only with great caution "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993). Because "motions for a new trial are disfavored," United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), district courts, after examining the totality of the evidence and considering objectively all of the facts and circumstances, should grant such a new trial motion only if the court finds "a real concern that an innocent person may have been convicted." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). In short, "[i]t is only when it appears that an injustice has been done that there is a need for a new trial `in the interests of justice.'" Id.

 The Government's Rebuttal Summation Was Proper

  Barbera has moved to set aside the verdict and for a new trial on the ground that the government's rebuttal summation "vilified" defense counsel and shifted the burden of proof and on the additional grounds that the Court improperly instructed the jury. A defendant asserting that a prosecutor's remarks warrant reversal "facet[s] a heavy burden, because the misconduct alleged must be so severe and significant as to result in the denial of [his] right to a fair trial." Locascio, 6 F.3d at 945; see also United States v. Rahman, 189 F.3d 88, 140 (2d Cir. 1999) (same). As the Second Circuit has repeatedly stated, "`[t]he government has broad latitude in the inferences it may reasonably suggest to the jury during summation.'" United States v. Zackson, 12 F.3d 1178, 1183 (2d Cir. 1983) (quoting United States v. Casamento, 887 F.2d 1141, 1189 (2d Cir. 1989)). Thus, "[i]t is a `rare case' in which improper comments in a prosecutor's summation are so prejudicial that a new trial is required." United States v. Rodriquez, 968 F.2d 130, 142 (2d Cir. 1992) (citation omitted.).

  To prevail on a claim that a prosecutor engaged in misconduct during summation, a defendant must demonstrate that the allegedly improper remarks caused him "substantial prejudice," United States v. Bautista, 23 F.3d 726, 732 (2d Cir. 1994), by "so infect[ing] the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwriqht, 477 U.S. 168, 181 (1986) (internal quotation marks and citation omitted). Remarks of a prosecutor in summation do not amount to a denial of due process unless they constitute "`egregious misconduct.'" United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (quoting Donnellv v. DeChristoforo, 416 U.S. 637, 647 (1974)). "Determination of whether there should be a reversal [for prosecutorial misconduct] requires an evaluation of the severity of the misconduct, the curative measures taken, and the certainty of conviction absent the misconduct." United States v. Rosa, 17 F.3d 1531, 1549 (2d Cir. 1994); see also United States v. Elias, 285 F.3d 183, 190 (2d Cir.), cert. denied, 537 U.S. 988 (2002). In making this determination, the court "must consider the objectionable remarks within the context of the entire trial," United States v. Espinal, 981 F.2d 664, 666 (2d Cir. 1992), reversing only if the remarks, "viewed against the entire argument before the jury, deprived the defendant of a fair trial." United States v. Pena, 793 F.2d 486, 490 (2d Cir. 1986) (internal quotation marks and citations omitted). Such a finding is generally made only on the basis of repeated improper statements by the prosecutor, not on merely one or two isolated transgressions. See, e.g., United States v.Shareef , 190 F.3d 71, 78 (2d Cir. 1999); United States v.Evancrelista , 122 F.3d 112, 120 (2d Cir. 1997).

  Our Circuit has repeatedly held that a "prosecutor is entitled to comment on a defendant's failure to call witnesses to contradict the factual character of the government's case." United States v. Caccia, 122 F.3d 136, 140 (2d Cir. 1997) (quoting United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977)). It is equally established that "the government may comment on a defendant's failure to call witnesses to support his factual theories." Bautista, 23 F.3d at 733; see also United States v. Gotchis, 803 F.2d 74, 80-81 (2d Cir. 1986). "The government may not, however, go further and suggest that the defendant has the burden of producing evidence." Bautista, 23 F.3d at 733.

  In his brief, Barbera lists a total of twelve excerpts from the rebuttal summation that he challenges — three that he argues shifted the burden of proof (see Def. Br. at 4) and nine that he argues "attacked counsel personally." (Id. at 3-4). The three allegedly burden-shifting statements in the government's rebuttal summation commented on the fact that the defense did not cross-examine government witnesses about certain matters and that aspects of the government's proof were not confronted by the defense. (See id. at 4.)

  Defense counsel in his summation had argued that Gelardo had been under investigation and scrutinized by the FBI for years and that his submission of a W-2 form reflecting earned income from Jude T. Barbera, M.D., P.C. could not have served to defraud the IRS because the federal government already was investigating Gelardo. Specifically, defense counsel argued,

You know from Agent Presutti and you know from Agent Russo yesterday . . . that the FBI was working with the IRS and targeting Thomas Gelardo. So how could they tell you that the IRS was fooled? How could they tell you with a straight face that the IRS was fooled? Because of the W-2s that were being submitted. The IRS was not tricked.
(Tr. at 606.) In response, the government pointed out that defense counsel could have cross-examined the IRS agent on this precise point but chose not to do so. Moreover, the government began its argument on this point by stating, "Now, Mr. McDonald doesn't have to say anything. He doesn't have to question Agent Russo, but he did question Agent Russo. He had him on the stand." (Tr. at 677.) The government then argued that defense counsel had not explored with Agent Russo on cross-examination whether the W-2 form served to mislead the IRS, "they can cross them. They can get into this a little more . . . Didn't bother because it would just be more testimony on cross to corroborate what the government's saying." (Tr. at 679.) As the Second Circuit has held, this type of argument is proper and did not shift the burden of proof to the defendant. See United States v. Torres, 901 F.2d 205, 246 (2d Cir. 1990) (noting that an "`observation that evidence adduced by the Government was not confronted on cross-examination is entirely proper'") (quoting United States v. Walker, 835 F.2d 983, 989 (2d Cir. 1987)); see also Bautista, 23 F.3d at 733.

  Barbera also has contended that the government shifted the burden of proof by noting that defense counsel did not question Rafael Chavez, a trustee of the Local 348 Union Fund and a representative of the Union, about the materiality of Barbera's representation that Gelardo was an employee of the defendant. Defense counsel argued in his summation that even if Gelardo was not an employee who fell within the definition of employees who were eligible for health coverage, the Union Fund did not care that it was providing health insurance to Gelardo and his dependents. Specifically, defense counsel argued that the Union Fund was not "so vigilant about making sure" that employees were actually eligible for benefits, and that the Union "wanted to get the dues. They wanted to increase their membership. They weren't out there looking day and night like the FBI at Gelardo. They were happy to have the dues." (Tr. at 628-29.) In direct response to defense counsel's argument, the government noted in rebuttal that Chavez had been on the stand and that defense counsel did not ask him whether the Union knew that Gelardo was receiving Union Fund benefits or even whether the Union had any mechanisms in place to check if Gelardo was properly on the Union Fund's health plan. (Tr. at 692.) This argument was proper as a response to a point raised in the defendant's summation.

  The third comment that Barbera has pointed to as "burden-shifting" is a comment made by the government that defense counsel "spent a lot more time in closing [arguing about the medical charts of Thomas and Gina Gelardo] than he did in questioning the witnesses about them." (Tr. at 696.)

  The government had alleged in Count Twelve of the Indictment that Barbera obstructed justice by providing fake medical charts to the U.S. Attorney's Office in connection with a health care fraud investigation. In addition, the government alleged in Counts Eight through Eleven that Barbera had caused false bills to be submitted for payment by the Union Fund for medical treatment that was not rendered to Thomas and Gina Gelardo on three separate occasions. The government contended that the fraudulent bills, buttressed by false medical charts, constituted some of the false representations that formed the basis for the frauds charged in Counts Eight through Eleven.

  Defense counsel now argues that this comment impermissibly shifted the burden to the defendant. The comment that defense counsel did not question the government's witnesses about whether the charts were bona fide and whether the defendant had in fact provided medical services to the Gelardos did not shift the burden of proof. As the Second Circuit has held, an argument that the government's evidence was not confronted on cross-examination is entirely proper. See, e.g., Torres, 901 F.2d at 246. Moreover, Barbera could not have been prejudiced by this argument because the jury found for the defendant on these allegations. First, the jury acquitted Barbera on the obstruction of justice charge (Count Twelve), and in a special verdict form, the jury specifically declined to find that the defendant had caused the three contested false bills to be submitted to the Union Fund for medical services rendered to Thomas and Gina Gelardo, and therefore did not convict Barbera on Counts Eight through Eleven on the basis of these allegations. (See Court Exh. 10 (Special Verdict Form); see also Tr. at 786-87.)*fn2 Therefore, there was no prejudice whatsoever, much less the requisite "substantial prejudice," Bautista, 23 F.3d at 732, to the defendant from this isolated comment.

  Further, the Court is required to consider any improper remarks in the context of the entire trial. Nowhere did the government state that Barbera had any burden of proof and the government informed the jury on at least two occasions in its rebuttal that the burden is on the government and that the defense had no obligation to call any witnesses. (Tr. at 677, 684.) Moreover, the Court instructed the jury at the outset of the trial (Tr. at 2-3), at the time of the allegedly offending comments (Tr. at 696, 701), and at the end of the case (Tr. at 766-67), that the government bore the burden of proof, and that the defendant was presumed innocent and had no obligation to testify or call any witnesses.

  Juries "are presumed to follow their instructions," Richardson v. Marsh, 481 U.S. 200, 211 (1987), and, given the numerous instructions here, it cannot credibly be claimed that the prosecutor's remarks caused prejudice by somehow shifting the burden of proof to the defendant. See United States v. Smith, 282 F.3d 758, 770 (9th Cir. 2002) (finding no prejudice where the prosecutor reminded the jury: "Obviously, a defendant in this case has no burden to do anything. They're presumed innocent."); United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998) (finding no prejudice where the prosecution told the jury that "the burden of proof was theirs to carry" and where "the trial court [] [gave] explicit instruction after closing arguments to that same effect"). Furthermore, where the prosecution's rebuttal statements were fair responses to the defense summation, the defendant "cannot now complain about the issues raised and the atmosphere created by his own making through the defense summation." United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998).

  Barbera has pointed to several statements made by the government in its rebuttal summation that allegedly "attacked defense counsel personally" and "vilified" him (Def. Br. at 3-4), and caused "substantial prejudice" to the defendant. (Id. at 9).

  However, it is well settled that the prosecution is entitled to "broad latitude in the inferences [it] may suggest to the jury during closing arguments," provided it does not misstate the evidence. United States v. Myerson, 18 F.3d 153, 163 (2d Cir. 1994) (internal quotation marks and citations omitted). In summation, the prosecutor is "ordinarily entitled to respond to the evidence, issues, and hypotheses propounded by the defense," United States v. Marrale, 695 F.2d 658, 667 (2d Cir. 1982), and "to reply with rebutting language suitable to the occasion." Myerson, 18 F.3d at 163 (quoting United States v. Bagaric, 706 F.2d 42, 60 (2d Cir. 1983) (internal quotation marks omitted)).

  The government's rebuttal summation was a fair response to the defense's theory at trial that Barbera did not have the requisite knowledge and intent to be convicted of the crimes with which he was charged. (See, e.g., Tr. at 21, 602 (the government has "to have reliable proof, actual evidence of what Jude Barbera's state of mind was, what he understood, what he knew, what he intended.").) In rebuttal, the government pointed out that four different explanations given by the defendant in his statements to law enforcement, and by the defense at trial, about why the defendant paid Gelardo and gave him W-2 forms, were evidence of Barbera's knowledge and intent that Gelardo was not a bona fide employee. The government pointed out that the first story was that Gelardo was the defendant's "driver" (Tr. at 681); second, that Benny Locicero, a member of organized crime, was shaking down Barbera and Barbera, in turn, put Gelardo on the payroll in 1995 to offer protection from Locicero and stop Locicero from frequenting Barbera's medical office (Tr. at 682); third, that Barbera put Gelardo on the payroll as a result of Locicero's visits to his office and, although Locicero did not stop frequenting Barbera's office, Gelardo made Locicero into "a nice guy" (Tr. at 682-83); and fourth, because Gelardo told Barbera that he needed a job.

  The first five comments from the rebuttal that the defense challenges as impermissible (see Def. Br. at 3), were statements about what the government described as the "third" and "fourth" explanations that the defense had put forth about Gelardo. Although the government told the jury that these explanations were "fake" or "bogus" stories and "worthless" explanations, from the context of the entire rebuttal summations that these descriptions were plainly directed at counsel's arguments, not at defense counsel personally. With respect to the sixth (see id. at 3), the government stated that if the jury followed the evidence, they would not credit defense counsel's argument that the jury is not able to determine the intent of the defendant. (Tr. at 689 ("Every time Mr. McDonald told you you can't look at inside his head, he's telling you not to use your judgment . . . Follow the evidence.").) Given that the centerpiece of defense counsel's opening and closing statements and his overarching theory throughout trial was that the government could not prove intent, this argument by the government was appropriate.

  With respect to the last three excerpts from the rebuttal that the defendant now challenges (see Def. Br. at 4), these comments related to the allegedly fake medical charts and medical bills for Thomas and Gina Gelardo. Although the government's words were by necessity forceful, they were not attacks on defense counsel, but again were comments on defense counsel's argument about the medical charts. Looking at these three comments in a broader context, the government was simply stating, consistent with the charges contained in the Indictment, that the three medical claims that Barbera submitted to the Union Fund on behalf of the Gelardos were false, and that the medical charts for the Gelardos also were false. (Tr. at 693-97.) For example, the government told the jury that Barbera's billing statement for Gelardo was dated in May 2001, at the time of the grand jury subpoena, not in 2000, at the time Gelardo was allegedly treated by the defendant and therefore the defendant's medical chart for Gelardo was fake because it was created at the time of the subpoena and not at the time of Gelardo's alleged treatment. (Tr. at 695.) The government further argued that defense counsel "ignore[d] it" [the billing statement] and in doing so was trying to "scam" the jury. These statements addressed the failures of defense counsel's argument and were not a comment in any way on defense counsel personally. See United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995) (finding no misconduct where the prosecutor referred to the defendant's case as a "fairy tale"); Marrale, 695 F.2d at 667 (holding that the prosecutor's admonition to the jury not to "be fooled" by defense counsel was permissible); United States v. Perry, 643 F.2d 38, 51 (2d Cir. 1981) (concluding that the prosecutor's statements describing a defense argument as a "desperate," "struggling" tactic were permissible rebuttal).

  In addition, for Barbera's claim to prevail, he must establish "substantial prejudice" from the comments. Here, there was no prejudice to the defendant from these three remarks because they referred to the medical charts and three medical bills for the Gelardos for which Barbera was not found guilty.

  Barbera cites United States v. Friedman, 909 F.2d 705 (2d Cir. 1990). In Friedman, the Second Circuit found that a prosecutor's statements to the jury that defense counsel was attempting to "pull down the wool over your eyes," in order to "get" the defendants "off" and collect "high fees" had undermined the presumption of innocence, and misstated the government's burden of proof. 909 F.2d at 709. The court also found that the prosecutor had "malign[ed] defense counsel by accusing him of willingness to make unfounded arguments that were not made." Id. Here, unlike Friedman, the government did not suggest that defense counsel would resort to any lengths, including making unfounded arguments in order to obtain an acquittal. Nor did the government suggest that counsel would put their own economic interests ahead of their duties to the court. Rather, the government's use of the terms "scam" and "worthless" were intended to counter the assertions in the defense opening and closing arguments that the government had no evidence of Barbera's knowledge and intent. The remarks at issue were a fair response to the defense comments, which charged that the government had "blundered," "made a mistake," "lost sight of critical facts," and "tried to fill in the blanks with mistaken assumptions and speculation." (Tr. at 19, 602.)

  Even if the government's isolated remarks are deemed to be somewhat pointed, they came during an otherwise fair proceeding. See Elias, 285 F.3d at 190 ("`Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.'") (quoting United States v. Young, 470 U.S. 1, 11-12 (1985)). In addition to the curative instructions administered by the court, and the other mitigating factors described above, two critical components of the trial record make plain that the comments complained of had no impact on the outcome of the trial, and thus fail to justify setting aside the verdict. See Shareef, 190 F.3d at 78 (stating that the final consideration in assessing whether prosecutorial comments constitute egregious misconduct is "the certainty of conviction in the absence of the misconduct"); United States v. Tutino, 883 F.2d 1125, 1136-37 (2d Cir. 1989) (assessing the risk of remark's influence on the jury).

  There was powerful evidence adduced at trial against Barbera on Counts One through Eleven, the counts of conviction. See United States v. Melendez, 57 F.3d 238, 242 (2d Cir. 1995) (concluding that no reversal is warranted "in an otherwise fair trail" even where prosecutor made improper remark in summation, "the proof was strong but not overwhelming," and curative instruction could have been more emphatic).

  Second, and perhaps more importantly, the jury's discriminating verdict, acquitting Barbera entirely on one count (Count Twelve), and finding that Barbera had made only one of the four fraudulent representations which the government had claimed formed the basis for guilt on Counts Eight through Eleven, indicated that the challenged comments had no impact whatsoever on the jury, and that the jury's verdict was based squarely on its assessment of the evidence. See United States v. Miller, 116 F.3d 641, 683 (2d Cir. 1997) (concluding, given the evidence against defendant, and "given the jury's acquittal of all defendants except [one] on one or more counts, we are convinced that the challenged summation statements had no impact whatever on the jury"); Myerson, 18 F.3d at 163 (noting that an "important factor" in finding lack of prejudice from summation remarks is the fact that "the jury was discriminating in its verdict, acquitting [defendant] on more counts than it convicted"). In sum, Barbera has failed to demonstrate any impropriety in the government's summation, let alone misconduct so egregious as to have deprived him of a fair trial and warrant a new trial.

  Finally, Barbera has argued that this Court's jury charge failed to properly instruct the jury that they had to find that Barbera acted knowingly with respect to the tax fraud charges in Counts Two through Six, in that the Court's instructions about IRS regulations "took this fact-finding away from the jury" (Def. Br. at 13), and instead instructed them "as a matter of law when it was appropriate to treat someone as an employee" under the IRS laws, rather than instructing them that they had to decide whether Barbera treated Gelardo as an employee knowing that it was improper to do so. (Id. at 13-14).

  A jury instruction is improper "`if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.'" United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998) (quoting United States v. Dinome, 86 F.3d 277, 282 (2d Cir. 1996) (internal quotation marks omitted)). In determining whether jury instructions are erroneous, the jury instructions must be considered "as a whole," and it must be determined whether, "taken as a whole, [they] caused a defendant prejudice." Bok, 156 F.3d at 160.

  On a number of occasions the jury was instructed that they had to find that Barbera acted knowingly and wilfully in order to find him guilty on the tax fraud counts. (Tr. at 708-29.) When instructing the jury on the tax fraud conspiracy count (Count One), the Court told the jury repeatedly that they had to find that Barbera acted knowingly and wilfully. (Tr. at 709, 715, 716.) At the outset, when describing the elements of the conspiracy, the Court stated that the jury must find that "Dr. Barbera, knowingly and wilfully associated himself and participated in the conspiracy which is charged." (Tr. at 709.) Again, with respect to the second element of the conspiracy charge, the Court told the jury that if they find that the first element (the existence of the charged conspiracy) was established, then they must determine whether "Dr. Barbera . . . participated in the conspiracy with knowledge of its unlawful purposes and in furtherance of its unlawful objectives." (Tr. at 716.) The Court described the terms "wilfully, knowingly and unlawfully" (Tr. at 716-17), and told the jury that "[t]he question of whether a person acted knowingly, wilfully and unlawfully is an issue of fact for you to determine, like all the other fact questions. And this of course involves the state of the defendant's mind." (Tr. at 717). When instructing the jury with respect to Counts Two through Six, the Court told the jury that an element of the crime that they must find in order to find Barbera guilty of the tax fraud counts is that "the defendant acted wilfully and knowingly." (Tr. at 723.) The Court went on to reiterate that the jury had to find knowledge on the part of Barbera, and the Court stated,

[p]roof that [Barbera] knowingly provided false information with the expectation that the information he provided would be used to file a tax return is sufficient to satisfy this element. All forms of wilful assistance in the preparation or submission of a false return are included.
(Tr. at 723-24.) In explaining this element in more detail, the jury was instructed that:
in order for the government to prove beyond a reasonable doubt that the defendant acted voluntarily and intentionally, with a specific intent to aid and assist in the filing of a false tax return when it was the duty, the legal duty of the defendant not to do so and the defendant knew it was his legal duty not to do so.
(Tr. at 725.)

  The only false information that Barbera was alleged to have provided to Gelardo for the preparation of Gelardo's false tax returns was the fraudulent W-2 forms. (See Indictment ¶¶ 8-9.) The government argued at trial that the jury had to determine whether Barbera knew that Gelardo was not a bona fide employee and knew whether the W-2 forms he gave to Gelardo were fraudulent. In the government's main summation, it argued that Barbera's "knowledge and intent" on the tax fraud charges was readily ascertainable from the evidence. (Tr. at 574-88.) The government specifically argued about the ways in which the jury could conclude that Barbera knew it was unlawful to give Gelardo a W-2 form and treat him as an "employee," and argued that the evidence established that Barbera knew that Gelardo was not a bona fide employee of his medical practice.*fn3 In addition, the Court instructed the jury in the jury charge that "the government contends that the wage and W-2 information on Gelardo's returns is materially false. The defendant disputes this contention." (Tr. at 725.)

  It was in the context of having heard from the Court numerous times that what the jury had to decide was that the defendant knowingly and wilfully aided and assisted Gelardo in the preparation of his false tax returns, with the specific intent to defraud the IRS, that the jury was instructed about the IRS regulations. The IRS regulations were also introduced in the context of the specific instruction that the jury had to determine whether Barbera "knowingly provided false information" (i.e., the W-2 Forms) to Gelardo with the expectation that Gelardo would use them to file his tax returns. (Tr. at 723-24.) Thus, viewed in light of the entire jury instructions on the tax fraud charges, the descriptions of the IRS regulations pertaining to "employee" and "independent contractor" designations did not serve to remove the fact-finding function from the jury or otherwise mislead the jury as to the instruction to find that Barbera acted knowingly with respect to the tax fraud charges.

  A recent opinion from the First Circuit Court of Appeals, United States v. Mikutowicz, 365 F.3d 65 (1st Cir. 2004), is instructive. In Mikutowicz the defendant challenged his convictions for conspiracy to commit tax fraud, filing materially false tax returns, and tax evasion on multiple grounds, including on the basis that the district court erred in instructing the jury as to the definition of "ordinary and necessary business expenses" under the Internal Revenue Code. Specifically,

[The defendant] contends that the court's instruction was unnecessary because the government was required to prove only that the deductions he claimed were "false" — not that they failed to qualify as ordinary and necessary business expenses." This unnecessary instruction was also prejudicial, he asserts, because it introduced an extraneous issue that might well have confused the jury and diverted its attention from his primary defense: that he claimed the deductions in "good faith."
365 F.3d at 70.

  The First Circuit declined to find that the instruction as to the IRS regulation was unnecessary or prejudicial under the facts of the case, because "knowing the definition of `ordinary and necessary business expenses' was helpful to the jury in applying the law to the evidence." Id. Indeed, "[i]t is common in tax crime prosecutions for the court to instruct the jury on the meaning of tax law terms implicated by the particular facts of a case." Id. (citing United States v. Wapnick, 60 F.3d 948, 955 (2d Cir. 1995) (holding a jury instruction on the definition of "sham corporation" proper in a tax evasion case); United States v. Curtis, 782 F.2d 593, 596-98 (6th Cir. 1986) (holding a jury instruction on the definition of "income" proper in a tax evasion case); United States v. Sorrentino, 726 F.2d 876, 881 (1st Cir. 1984) (finding a jury instruction on the definition of "taxable income" proper in a tax evasion case)). The First Circuit concluded that since the government was required to prove, inter alia, that the tax returns at issue were false as to a material matter, the relevant definition drawn from IRS regulations was useful information for the jury:

[W]hether the deductions claimed by [two corporations in which the defendant was sole shareholder] were "false" depended on whether they were properly claimed as "ordinary and business expenses." Thus, the jury's ultimate conclusion that the deductions were "false" was inexorably linked to whether they were ordinary and necessary business expenses." Therefore, a definition of "ordinary and natural business expenses" was useful information for the jury to evaluate the evidence.
Id. The First Circuit similarly declined to find that the inclusion of the IRS regulation instruction shifted the jury's focus away from the defendant's "good faith" defense because the jury was explicitly and separately instructed that the government had to prove that the claimed deductions were false and that the defendant acted knowingly. See id. at 71.

  As in Mikutowicz, the instruction to the jury regarding the IRS regulations in this case was relevant to the jury's determination as to whether each tax return was materially false and, when viewed in the context of the repeated explicit instructions that the jury had to decide whether the defendant acted knowingly and wilfully, did not mislead the jury as to the correct legal standard. Therefore, the Court properly instructed the jury on the IRS regulations pertaining to "employee" and "independent contractor" designations.


  For the foregoing reasons, Barbera's post-trial motions are denied. It is so ordered.

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