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11-5445-cr United States v. Arnold Bell

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 COURTS 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.

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At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of August, two thousand thirteen. PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges.

UNITED STATES OF AMERICA, Appellee, -v.ARNOLD BELL, Defendant-Appellant. FOR APPELLANT: FOR APPELLEE: JEFFREY C. KESTENBAND, Kestenband Law Firm LLC, Glastonbury, CT. JOHN H. DURHAM, Assistant United States Attorney (Anthony E. Kaplan, Robert M. Spector, Assistant United States Attorneys, on the brief), for Deirdre M. Daly, Acting United States Attorney for the District of Connecticut, New Haven, CT. No. 11-5445-cr

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Appeal from the United States District Court for the District of Connecticut (Nevas, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED. Defendant-Appellant Arnold Bell appeals from a July 1, 2004 judgment of conviction and sentence imposed by the United States District Court for the District of Connecticut (Nevas, J.) following a jury trial. We assume the parties

familiarity with the facts and procedural history of this case. Bell contends that the district court improperly denied two motions for a mistrial. Specifically, Bell argues that

he is entitled to a new trial because during the prosecutions cross-examination of Bell, the prosecution (1) asked allegedly improper questions concerning the credibility and veracity of government witnesses that substantially prejudiced Bell; and (2) asked allegedly improper and prejudicial questions concerning statements Bell made in his trial testimony, but had not made in a post-arrest, post-Miranda statement. The District Court did not abuse its discretion in denying Bells two motions for a mistrial. 2 With respect to

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Bells first claim, Bell is unable to demonstrate that the governments conduct, even were it improper, caused him substantial prejudice. F.3d 129 (2d Cir. 2012). See United States v. Truman, 688 The prosecutions cross-

examination question that compelled Bell to characterize a government witness as lying was improper. See United However,

States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994).

the questions that compelled Bell to characterize government witnesses as mistaken were not. Id. Considering the

prosecutions isolated and minor impropriety, in conjunction with the district courts curative instruction to the jury, Bell did not suffer substantial prejudice. With respect to Bells second claim, Bell is unable to show that the prosecutions questions were improper. Bell

is correct that under Doyle v. Ohio, 426 U.S. 610 (1976), the prosecution may not use a defendants post-Miranda silence for impeachment purposes. However, the

prosecutions questions that Bell challenges on appeal were not posed for this improper purpose. Rather, the challenged

questions identified inconsistencies between Bells trial testimony and statements he had made during his post-arrest, post-Miranda statement. Doyle poses no bar to such

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questions, which concern prior inconsistent statements only. See Anderson v. Charles, 447 U.S. 404, 408 (1980). For the reasons stated above, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OHagan Wolfe, Clerk

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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007
DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE

CLERK OF COURT

Date: August 27, 2013 Docket #: 11-5445cr Short Title: United States of America v. Bell

DC Docket #: 3:03-cr-230-1 DC Court: CT (NEW HAVEN) DC Judge: Nevas

BILL OF COSTS INSTRUCTIONS The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website. The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007
DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE

CLERK OF COURT

Date: August 27, 2013 Docket #: 11-5445cr Short Title: United States of America v. Bell

DC Docket #: 3:03-cr-230-1 DC Court: CT (NEW HAVEN) DC Judge: Nevas

VERIFIED ITEMIZED BILL OF COSTS Counsel for _________________________________________________________________________ respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________ and in favor of _________________________________________________________________________ for insertion in the mandate. Docketing Fee _____________________

Costs of printing appendix (necessary copies ______________ ) _____________________ Costs of printing brief (necessary copies ______________ ____) _____________________ Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE) ________________________ Signature

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