11-1596-cr
United States v. Cummings

                            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 United States Courthouse, 500 Pearl Street, in the City of New York,
on the 9th day of July, two thousand twelve.

Present:       ROSEMARY S. POOLER,
               REENA RAGGI,
               GERARD E. LYNCH,
                          Circuit Judges.

_____________________________________________________
UNITED STATES OF AMERICA,

                                      Appellee,

                        -v.-                                               11-1596-cr

REGINALD CUMMINGS, AKA MANUEL ROSADO,
AKA SONNY ONOGWU, AKA STEVE COSEMI CADE,

                                      Defendant-Appellant.


Appearing for Appellant:       Jonathan Svetkey, Watters & Svetkey, LLP, New York, N.Y.

Appearing for Appellee:        Sandra S. Glover, Assistant United States Attorney, District of
                               Connecticut (David B. Fein, United States Attorney for the District
                               of Connecticut, Robert M. Spector, on the brief), New Haven,
                               Conn.

      Appeal from a judgment of the United States District Court for the District of
Connecticut (Bryant, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-appellant Reginald Cummings appeals from a conviction for access device
fraud in violation of 18 U.S.C. § 1029(a)(2). Cummings presses two arguments on appeal: first,
that the district court erred in granting his motion to dismiss the first indictment under the
Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., “without,” rather than “with,” prejudice;
and, second, that the district court erred in denying in part his motion for a retrial. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

        As to Cummings’s Speedy Trial Act argument, we agree with the government that
whether the district court should have dismissed the first indictment with prejudice is moot;
Cummings “lack[s] a legally cognizable interest in the outcome” of our review of this issue, U.S.
Parole Comm’n v. Geraghty, 

, 396 (1980) (internal quotation marks omitted),
because Cummings was not tried on or convicted of any offense charged in the first indictment;
to the contrary, his sole count of conviction was charged only in the superseding indictment, as
was the only other count on which he was tried.

        Insofar as Cummings seeks to argue that the access device fraud count should
nonetheless have been dismissed with prejudice under the Speedy Trial Act, that argument fails
for two reasons. First, Cummings waived his right to seek dismissal of this count by failing to
move to dismiss the superseding indictment. See 18 U.S.C. § 3162(a)(2); United States v. Abad,

, 273-74 (2d Cir. 2008). Second, even if it were possible to construe Cummings’s
motion to dismiss the first indictment as encompassing a motion to dismiss the superseding
indictment, the access device fraud count would not be subject to dismissal under the Speedy
Trial Act because that count was not alleged in the original complaint. The Speedy Trial Act
requires dismissal for pre-indictment delay “only [of] the specific charges alleged in a pending
complaint.” United States v. Gaskin, 

, 452 (2d Cir. 2004); see 18 U.S.C. §
3162(a)(1). Cummings argues that the access device fraud count should have been dismissed
notwithstanding the absence of that charge in the original complaint because the complaint
alleged all of the facts necessary to support a charge of access device fraud. This argument is
squarely foreclosed, however, by our holding in Gaskin that “when a complaint charge and an
indictment charge involve overlapping or even identical facts, dismissal is not warranted under §
3162(a)(1) if the indictment charge requires proof of elements distinct from or in addition to
those necessary to prove the crimes pleaded in the complaint.” 

(emphasis added). Here, access device fraud clearly requires “proof of elements district from or
in addition to” those necessary to prove the crimes—bank fraud, mail fraud, and aggravated
identity theft—pleaded in the complaint, 

use of an access device
and (2) obtaining anything of value amounting to $1,000 or more. Thus, even if Cummings had
preserved a motion to dismiss the access device fraud count, that motion would properly have
been denied.




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         Cummings next contends that the district court erred in denying Cummings’s motion for
a new trial as to the access device fraud count based on newly discovered impeachment
evidence. We review a district court’s denial of a motion for a new trial for abuse of discretion.
See United States v. Spinelli, 

, 164 (2d Cir. 2008). “A district judge’s ruling is
given deference because the judge presided over the trial and is in a better position than an
appellate court to determine the probable effect of new evidence.” United States v. Rivas, 

, 199 (2d Cir. 2004). The government’s failure to disclose impeachment evidence under
Giglio v. United States, 

(1972), and Brady v. Maryland, 

(1963),
“justif[ies] a retrial only ‘if there is a reasonable probability that, had [it] been disclosed to the
defense, the result of the proceeding would have been different,’” that is, if “the government’s
failure to disclose ‘undermines our confidence in the outcome of the trial.’” 

(quoting Kyles v. Whitley, 

, 433-34 (1995)) (second alteration in original).
Here, we discern no abuse of discretion in the district court’s conclusion that Officer Robert
Harry’s testimony was cumulative and immaterial as to the access device fraud count and that
the undisclosed impeachment evidence therefore would not have changed the outcome of the
proceeding with respect to that count.

       We have reviewed the remainder of Cummings’s arguments and found them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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