11-1599-cr
U.S. v. Murphy

                           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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of December, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER, JR.
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                                   No. 11-1599-cr

DAVID MURPHY,

         Defendant-Appellant,
_______________________________________________

For Defendant-Appellant:                 DAVID SAMEL, New York, NY

For Appellee:                            PETER M. SKINNER, (Andrew L. Fish, on the brief),
                                         Assistant United States Attorneys, for Preet Bharara,
                                         United States Attorney for the Southern District of New
                                         York, New York, NY
        Appeal from the United States District Court for the Southern District of New York
(Sullivan, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant David Murphy appeals from a judgment of conviction entered on

March 1, 2011 by the United States District Court for the Southern District of New York

(Sullivan, J.). On October 27, 2010, a jury convicted Murphy of both fraudulently obtaining

money in violation 18 U.S.C. § 666 and making false statements to the Government in violation

of 18 U.S.C. § 1001. On appeal, Murphy challenges the sufficiency of the Government’s proof,

requests a new trial, and argues that the district court should have excluded certain evidence. We

assume the parties’ familiarity with the relevant facts, the procedural history, and the issues

presented for review.

       “[A] defendant who challenges the sufficiency of the evidence . . . bears a heavy burden.

‘We must credit every inference that the jury may have drawn in favor of the government . . . .

The jury’s verdict must be sustained if any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United States v. Finley, 

,

202-03 (2d Cir. 2001) (quoting United States v. Gore, 

, 40 (2d Cir. 1998) (emphasis

retained)). “Assessments of witness credibility and choices between competing inferences lie

solely within the province of the jury.” United States v. Payne, 

, 60 (2d Cir. 2010).

       Here, the evidence clearly permitted the jury to convict Murphy of violating 18 U.S.C.

§ 666. That section prohibits any agent of an organization receiving more than $10,000 in federal

funds from “embezzl[ing], steal[ing], obtain[ing] by fraud, or otherwise without authority

knowingly convert[ing]” more than $5,000 of that organization’s funds. The Government’s

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evidence showed that Murphy, an employee of the Archdiocese of New York (“the

Archdiocese”), knew that he could not receive additional compensation for his work renovating

two Catholic elementary schools, but nonetheless requested and obtained additional money from

those schools, which he then converted for personal use. Murphy contends that the evidence did

not show that he deceived the principals of the two elementary schools, who he claims had

authority to decide how to distribute the relevant funds. Even accepting Murphy’s claim that the

principals could allocate the money, however, the evidence amply supported the conclusion that

Murphy deceived the principals when, while apparently acting in his capacity as an agent of the

Archdiocese, he made requests for funds that the Archdiocese had not authorized. The evidence

further supported the conclusion that Murphy deceived the principals when he requested money

for costs he would not incur, wrote checks to fictitious subcontractors, and then had a friend cash

those checks and return the money to him for personal use. Thus, we affirm Murphy’s conviction

for violating 18 U.S.C. § 666.

       Turning to Murphy’s motion for a new trial, we review the district court’s denial of that

motion for abuse of discretion. United States v. Rigas, 

, 125 (2d Cir. 2009). In

support of his motion, Murphy argues that a forensic analysis of his computer conducted after

trial showed that he had created an allegedly exculpatory document before the Government

began investigating him. To obtain a new trial based on the discovery of additional evidence,

Murphy must show that: “(1) the evidence [was] newly discovered after trial; (2) facts are

alleged from which the court can infer due diligence on the part of the movant to obtain the

evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching;

and (5) the evidence would likely result in an acquittal.” United States v. Owen, 

, 88



                                                 3
(2d Cir. 2007). Here, Murphy had access before trial to other evidence that indicated that he had

created the relevant document at the time he claimed, and his attorney considered introducing

this evidence. Accordingly, the results of the forensic analysis merely duplicated evidence

already available to Murphy, and the results therefore cannot show the manifest injustice

necessary to warrant a new trial. See United States v. Ferguson, 

, 134 (2d Cir.

2001) (“The ultimate test [on a motion for a new trial] is whether letting a guilty verdict stand

would be a manifest injustice.”).

        Finally, Murphy argues that the district court should have excluded certain evidence. “In

general, we will not overturn the district court’s decision to admit or reject evidence absent an

abuse of discretion.” United States v. Ramirez, 

, 499 (2d Cir. 2010).1 During the

trial, after Murphy testified at length about his education and employment history, the district

court permitted the Government (1) to introduce evidence showing that Murphy had not obtained

certain degrees that he claimed to have earned and (2) to question Murphy about his termination

from a job. Murphy challenges these decisions under Federal Rules of Evidence 404(b), 608(b),

and 403. But this Court long ago held that Rules 404(b) and 608(b) do not prevent the

Government from impeaching a defendant’s misrepresentations. See United States v. Beverly, 

, 639 (2d Cir. 1993) (“The government’s questioning arose in the form of impeachment

of specific falsehoods, not as an attack on his general character for truthfulness, Fed. R. Evid.

608(b), nor as an attempt to prove his bad character in order to show he acted in conformity

therewith, Fed. R. Evid. 404(b).”).


        1
         While the failure of Murphy’s counsel to object to the admission of certain evidence might
render plain-error review appropriate in some instances, see United States v. Gaind, 

, 76 (2d
Cir. 1994), our conclusion that the district court did not abuse its discretion renders such review
unnecessary.

                                                    4
       Neither does Rule 403 bar the admission of this evidence. That rule requires exclusion

only where the “unfair prejudice” caused by certain evidence substantially outweighs that

evidence’s “probative value.” Fed. R. Evid. 403. By suggesting that the schools might credibly

have regarded Murphy as a general contractor, Murphy’s testimony concerning his credentials

bolstered his claim that the schools paid him “compensation for additional work he was doing in

an additional capacity.” Appellant’s Brief at 45. Thus, Murphy’s credentials were an important

and disputed issue, and the relevance of the Government’s evidence to that issue outweighed any

prejudice to Murphy.2 Accordingly, the district court did not abuse its discretion by admitting

evidence regarding Murphy’s credentials.

       We have considered Murphy’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




       2
         Moreover, even the most prejudicial evidence—i.e., testimony that a prior employer had
terminated Murphy based on allegations that he had received bribes—was not “more serious than the
charged crime.” United States v. Williams, 

, 34 (2d Cir. 2000).

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