10-4799
     United States v. Buczek


                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      UNITED STATES OF AMERICA,
14
15                   Appellee,
16
17                   -v.-                                               10-4799
18
19      SHANE C. BUCZEK,
20
21                   Defendant-Appellant.
22
23
24      - - - - - - - - - - - - - - - - - - - -X
25
26      FOR APPELLANT:                        Peter J. Tomao
27                                            Garden City, NY
28

                                                 1
 1   FOR APPELLEE:              Monica J. Richards, Assistant
 2                              United States Attorney, for
 3                              William J. Hochul, Jr., United
 4                              States Attorney,
 5                              Western District of New York,
 6                              Buffalo, NY
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Western District of New York (Skretny, C.J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the district court’s judgment is AFFIRMED.
13
14        Shane Buczek appeals from a judgment entered in the
15   United States District Court for the Western District of New
16   York convicting him of one count of bank fraud and one count
17   of committing an offense while on pretrial release. We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.
20
21   [1] Buczek argues that the evidence adduced at trial was
22   insufficient to establish that he acted knowingly and with
23   the intent to defraud a financial institution. We review a
24   sufficiency challenge de novo. United States v. Yannotti,
25   

, 120 (2d Cir. 2008). A defendant challenging
26   his conviction on sufficiency grounds “bears a heavy burden
27   because a reviewing court must consider the evidence ‘in the
28   light most favorable to the prosecution’ and uphold the
29   conviction if ‘any rational trier of fact could have found
30   the essential elements of the crime beyond a reasonable
31   doubt.’” United States v. Aguilar, 

, 656 (2d
32   Cir. 2009) (quoting Jackson v. Virginia, 

, 319
33   (1979)). “The government’s proof need not exclude every
34   possible hypothesis of innocence, and where there are
35   conflicts in the testimony, we defer to the jury’s
36   determination of the weight of the evidence and the
37   credibility of the witnesses, and to the jury’s choice of
38   the competing inferences that can be drawn from the
39   evidence.” United States v. Best, 

, 200 (2d
40   Cir. 2000) (internal citations and quotation marks omitted).
41
42        At issue is whether the evidence sufficed to show that,
43   when he attempted to transfer funds to HSBC, Buczek knew
44   that he did not actually have an account at the Depository

                                  2
 1   Trust and Clearing Corporation (“DTCC”) and thus intended to
 2   defraud HSBC. According to Buczek, the evidence showed that
 3   he legitimately believed he had a “secret account” at DTCC
 4   funded by the United States Treasury Department.
 5
 6        The evidence of Buczek’s knowledge was sufficient to
 7   support a jury finding that he had the requisite intent to
 8   defraud HSBC. First, the Government introduced evidence
 9   that the DTCC did not offer any individual accounts; so the
10   jury could logically infer that Buczek had never deposited
11   any money in his supposed DTCC account, had never withdrawn
12   any money from that account, and had never checked the
13   balance of that account--since the account did not in fact
14   exist. Under those circumstances, the natural consequence
15   of providing a creditor information for such an account is
16   that there will be no funds in that account to remit to the
17   creditor.
18
19        Second, the Government introduced evidence that Buczek
20   repeatedly purchased goods at Best Buy very shortly after
21   purporting to make direct check payments on his credit card
22   account. The jury could reasonably infer that this timing
23   reflected his awareness that he had a small interval of time
24   to incur additional credit card charges before his checks
25   bounced.
26
27        Third, FBI agent Falkowski testified that Buczek denied
28   using a DTCC routing number to make payments on his credit
29   card. If Buczek genuinely believed his DTCC account was
30   real, he would have had no reason to lie to authorities
31   about having attempted to make payments from that account.
32
33   [2] Buczek also argues that the evidence was insufficient
34   to show that his conduct placed a financial institution at
35   risk of loss, or that the financial institution in question
36   was federally insured. But the evidence established that
37   Buczek never paid more than $8,000 that he charged on his
38   HSBC credit card. This plainly constituted a loss to HSBC,
39   which financed Buczek’s Best Buy purchases. Buczek contends
40   the Government failed to show that “HSBC Bank Nevada” (the
41   entity that administered his credit card account) was FDIC
42   insured. However, the testimony that HSBC “owned” Buczek’s
43   credit account and is FDIC insured was sufficient for the
44   jury to infer an adverse effect on a federally insured
45   financial institution.

                                  3
 1   [3] Buczek argues that the admission of various out-of-
 2   court statements violated the Sixth Amendment’s
 3   Confrontation Clause. “[I]f an out-of-court statement is
 4   testimonial in nature, it may not be introduced against the
 5   accused at trial unless the witness who made the statement
 6   is unavailable and the accused has had a prior opportunity
 7   to confront that witness.” Bullcoming v. New Mexico, 131 S.
 8   Ct. 2705, 2713 (2011). Confrontation Clause violations are
 9   subject to harmless error review if the error is preserved.
10   United States v. McClain, 

, 222 (2d Cir. 2004).
11   Otherwise, review is for plain error. United States v.
12   Bruno, 

, 78 (2d Cir. 2004). In that event, we
13   will reverse a defendant’s conviction only if there is “(1)
14   error, (2) that is plain, . . . (3) that affects substantial
15   rights” and “(4) the error seriously affected the fairness,
16   integrity, or public reputation of judicial proceedings.”
17   

marks and alterations omitted).
18   For an error to affect a defendant’s substantial rights, it
19   generally must “affect[] the outcome of the district court
20   proceedings,” meaning “there must be a reasonable
21   probability that the error affected the outcome of the
22   trial.” United States v. Marcus, 

, 2164
23   (2010) (internal quotation marks omitted).
24
25        Buczek did not object to the admission of any of the
26   out-of-court statements that were arguably testimonial in
27   nature, and therefore we review their admission for plain
28   error. Each of these statements concerned facts that were
29   established by other witnesses at trial, including Buczek’s
30   use of a fictitious DTCC account and routing number, his use
31   of a “bonded promissory note” to attempt to pay down his
32   HSBC credit account, and the absence of any Buczek account
33   at DTCC (which, as noted above, did not offer individual
34   accounts). Because the record contained ample other
35   evidence that Buczek engaged in the transactions evidenced
36   by the challenged testimony, there is no reasonable
37   probability that the admission of that testimony affected
38   the outcome of the trial.
39
40   [4] Buczek cites testimony describing the redemption theory
41   (to which he claims to subscribe) as “nothing other than a
42   scam” and describing his account at HSBC as a “bust out
43   account,” and argues that this testimony should have been
44   excluded as impermissible opinion evidence that invaded the
45   province of the jury by telling it what result to reach.

                                  4
 1   See United States v. Scop, 

, 139-40 (2d Cir.
 2   1988). However, Buczek did not object to either statement
 3   at trial. Because there was ample evidence in the record
 4   for the jury to conclude that Buczek was aware that he had
 5   provided fictitious account information to HSBC, Buczek’s
 6   substantial rights were unaffected by the admission of the
 7   challenged testimony, so its admission did not amount to
 8   plain error.
 9
10   [5] Buczek maintains that he did not knowingly waive his
11   right to counsel and that the district court erred by
12   failing to specify the penalties he faced if convicted. The
13   Sixth Amendment guarantees criminal defendants “both the
14   right to counsel and the power to defend themselves without
15   counsel if that decision is made intelligently and
16   knowingly, with full awareness of the right to counsel and
17   the consequences of its waiver.” United States v. Fore, 169

, 107-08 (2d Cir. 1999) (internal quotation marks
19   omitted). To ensure that a waiver of the right to counsel
20   is made intelligently and knowingly, “[t]he district judge
21   and defendant should engage in a colloquy on the record, but
22   there is no scripted procedure for this discussion.” 

  108.
24
25        Although the district court did not specify the
26   potential punishment, the court explained several times the
27   risks of appearing pro se, and warned Buczek that he could
28   face substantial prison time. “Our case law does not
29   require an explicit accounting of the potential punishment”
30   in order for a waiver of the right to counsel to be deemed
31   intelligent. 

32
33   [6] Buczek challenges the district court’s refusal to
34   reduce his Guidelines offense level on the ground that he
35   failed to accept responsibility. “A district court’s
36   decision to deny credit for acceptance of responsibility,
37   primarily a factual determination, will be upheld unless it
38   is without foundation.” United States v. Kumar, 

  612, 635 (2d Cir. 2010) (internal quotation marks omitted).
40   Buczek’s post-conviction motions espousing conspiracy
41   theories to challenge the “jurisdiction” of the district
42   court and of the United States Attorney’s Office, as well as
43   his failure to cooperate with the probation department in
44   its presentencing investigation, confirm that Buczek was not
45   entitled to an offense level reduction under U.S.S.G.
46   § 3E1.1.

                                  5
1        We have considered Buczek’s remaining arguments and
2   find them to be without merit. For the foregoing reasons,
3   the judgment of the district court is hereby AFFIRMED.
4
5
6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK
9




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