Appeal from the judgment of the United States District Court for the District of Connecticut (Arterton, J.).
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At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 5th day of April, two thousand twelve.
PRESENT: PIERRE N. LEVAL, ROBERT D. SACK, PETER W. HALL, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. This appeal arises out of the jury trial and conviction of Michael ("Michael") Stinson and his son, Eugene ("Eugene") Stinson and the guilty plea of David Harvin.*fn1 On March 9, 2010, a jury found Eugene guilty of conspiracy to steal firearms from a federally licensed firearm dealer, American Precision Manufacturing ("APM"), in violation of 18 U.S.C. §§ 922(u)(1), 924(i)(1) and 371; and theft of firearms from a federally licensed firearm dealer, in violation of 18 U.S.C. §§ 2, 922(u)(1) and 924(i)(1). The jury also found Michael guilty of the same and the additional offense of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 28, 2010, the district court sentenced Michael to 200 months' imprisonment. On August 16, 2010, the district court sentenced Eugene to 120 months' imprisonment. Eugene appeals his conviction on the basis that the district court committed a number of errors including mishandling, to Eugene's detriment, Michael's testimony suggestive of a vicarious entrapment defense. Michael appeals his conviction on the grounds that his non-guidelines sentence of 200 months' incarceration is substantively unreasonable and that he was entrapped by the government. Both defendants-appellants have filed, in addition to their counseled briefs, pro se briefs raising a number of claims. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We elaborate only where necessary to explain our decision to affirm the judgments of conviction.
In his counseled brief, Eugene argues that the jury was erroneously permitted to consider Michael's testimony suggesting that Michael was vicariously entrapped by Eugene. In the first instance, Michael testified that Eugene had approached him and told Michael that Ameed Stevenson, the government's cooperating witness, had access to firearms through Stevenson's job at APM and wanted to get Eugene involved in an opportunity to steal some of those firearms. Michael explained that he had been hesitant to get involved with Stevenson. Michael's counsel then inquired about Eugene's response to that hesitation and before Michael answered, Eugene's counsel objected. The district court sustained the objection. Eugene now asserts that district court should have either struck the testimony or given the jury a curative or limiting instruction. Eugene's counsel neither asked for the testimony to be stricken nor requested a curative or limiting instruction. We therefore review for plain error. United States v. Jakobetz, 955 F.2d 786, 801-802 (2d Cir. 1992); see also United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) ("[A]n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an 'error'; (2) the error is 'clear or obvious, rather than subject to reasonable dispute'; (3) the error 'affected the appellant's substantial rights, which in the ordinary case means' it 'affected the outcome of the district court proceedings'; and (4) 'the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"). Because the district court sustained the objection before Michael could answer the question, the district court did not err, much less plainly err, in not striking the testimony or otherwise instructing the jury with specific regard to the testimony.
In the second instance, Michael testified that, on the night of the theft, Eugene told Michael that there were guns in the APM warehouse. Eugene's counsel initially objected to the testimony and asked for it to be stricken from the record. At sidebar Eugene's counsel argued that permitting Michael to testify with regard to statements Eugene made concerning the guns would "undermine my entire predisposition case," and he proposed that Michael's counsel be permitted to lead Michael through his testimony and suggested "[m]aybe if the question posed to Michael is more directed in a yes or no manner, did you do something as a result of, you know, being told something by your son?" When later asked by the district court if he wanted the testimony stricken or a limiting instruction given to the jury, Eugene's counsel stated that he wished not to draw attention to the issue and expressly decided against asking the district court strike the answer or give a limiting instruction. Eugene now argues Michael's testimony was so prejudicial to him that it deprived Eugene of a fair trial as it implied an admission of guilt on Eugene's part, and, as clarified during oral argument, Eugene asserts that the district court should have stricken the testimony when his counsel initially objected.
We find no error in the district court's delay in ruling on the objection in order to make a conscientious assessment of whether the statements were relevant and admissible, in the course of Michael's defense, as a co-conspirator's statement in furtherance of a conspiracy. United States v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998) ("Under Rule 403, relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. A district court is obviously in the best position to do the balancing mandated by Rule 403 [, and] [w]e will second-guess a district court only if there is a clear showing that the court abused its discretion or acted arbitrarily or irrationally. To avoid acting arbitrarily, the district court must make a 'conscientious assessment' of whether unfair prejudice substantially outweighs probative value.") (internal quotations and citations are omitted). Moreover, on Eugene's objection to this testimony, there were essentially three remedies available to him―mistrial, striking of the testimony (with or without instructions to the jury), or a limiting instruction. Eugene expressly declined the court's offer to strike the evidence or give a limiting instruction, and he did not request a mistrial. Accordingly, he "did not afford the court an available opportunity to do something about the problem." United States v. Bautista, 252 F.3d 141, 147 (2d Cir. 2001). This amounted to a waiver of his objection. Cf. United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) ("The law is well established that if, 'as a tactical matter,' a party raises no objection to a purported error, such inaction 'constitutes a true "waiver" which will negate even plain error review.'" (quoting United States v. Kon Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995)).
In his pro se brief, Eugene raises a number of claims including allegations that the government and its agents violated his due process rights; the government misrepresented evidence during its closing argument; the government committed Brady and Jencks Act violations; the trial court abused its discretion; Stevenson perjured himself at trial; and that Eugene was entrapped as a matter of law.
Eugene's due process challenge is linked generally to his allegation that the government and its agents, namely the ATF and APM, violated his right to due process of law in the following ways: (1) the government allowed APM owners to tip off its employees about the investigation into the original firearms theft and to participate in the subsequent sting operation; (2) law enforcement agents showed Stevenson a photo lineup with Eugene's picture in it; (3) the law enforcement agents relied on information provided by Stevenson, who Eugene claims was not reliable; (4) on the night of the charged theft, ATF Special Agent Scott Riordan forced Stevenson, against his will, to open a door at APM for Michael and Harvin; and (5) the affidavit in support of Eugene's arrest warrant contained the false statement that Eugene had sold a firearm to another confidential informant on October 7, 2009 and that Special Agent Riordan testified in grand jury to the same false statement. Also, Eugene asserts that the district court erred by admitting evidence from Michael's cell phone because the ATF agent searched that telephone without a warrant. Eugene did not raise any of these claims below, and thus we review for plain error. Eugene has not identified an error, much less a plain one, rising to the level of a deprivation of his due process rights. He did not move to suppress any evidence obtained as a result of the ATF's investigation and sting operation. See United States v. Yousef, 327 F.3d 56, 144 (2d Cir. 2003) (holding that issues not raised in pre-trial suppression motion are waived). He advances only conclusory statements and identifies no evidence to support his claims that Agent Riordan and Stevenson were lying. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993). Any allegation of misconduct or interference by the ATF in the transaction between Stevenson and Eugene was embodied in Eugene's entrapment defense -- an argument he made to the jury on which the jury was instructed, and which the jury ultimately rejected. Additionally, with regard to Michael's cell phone, leaving aside whether he has standing to challenge it, the Government did obtain a search warrant for the phone, which Michael acknowledged at trial. Eugene argues that the district court abused its discretion in applying a two-level enhancement pursuant to U.S.S.G. § 3B1.1 for his role in the offenses of conviction, and a six-level enhancement pursuant to U.S.S.G. § 2K2.1 because the offense involved twenty-nine firearms. At sentencing the district court determined that the evidence introduced at trial established that Eugene organized the theft and recruited Michael to help ...