14-3530
     United States v. Smith


                              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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood
Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of
November, two thousand fifteen.

     PRESENT:
                 ROBERT A. KATZMANN,
                       Chief Judge,
                 ROSEMARY S. POOLER,
                 DENNY CHIN,
                       Circuit Judges.
     _____________________________________

     United States of America,

                               Appellee,

                        v.
                                                                                    14-3530
     Kevin Patrick Smith,

                       Defendant-Appellant.
     _____________________________________

     FOR DEFENDANT- APPELLANT:                                 Arza Feldman, Feldman & Feldman,
                                                               Uniondale, NY; Kevin Patrick Smith,
                                                               pro se, White Deer, PA.

     FOR APPELLEE:                                             Hadassa Robyn Waxman, Brian A.
                                                               Jacobs, Assistant United States
                                                               Attorneys, for Preet Bharara, United
                                                               States Attorney Office for the
                                                               Southern District of New York, New
                                                               York, NY.
     Appeal from a judgment of the United States District Court for the Southern District of
New York (Buchwald, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the District Court is AFFIRMED in part and VACATED in

part, and REMANDED for further proceedings consistent with this order.

       Kevin Patrick Smith appeals from a judgment of conviction and sentence entered in the

United States District Court for the Southern District of New York (Buchwald, J.). A jury found

Smith guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), but

failed to reach a verdict on a second charge of attempted bank robbery. Smith was sentenced to

96 months’ imprisonment, followed by three years of supervised release with certain conditions.

Smith now appeals his conviction on several grounds, as well as the imposition of a special

condition of supervised release which restricts his access to credit.

       Smith first argues that the District Court erred in denying his motion for a mistrial due to

prosecutorial misconduct. During its rebuttal summation, the Government argued that the timing

of Smith’s arrest was designed to protect “the safety of the citizens of New York – and New Paltz.”

App. 53. Smith contended before the District Court and again on appeal that a “safe streets”

argument, i.e., that Smith was so dangerous he must be arrested to protect public safety, was an

improper emotional appeal to jurors’ generalized fear of crime. We review the denial of a motion

for a mistrial for abuse of discretion. United States v. Deandrade, 

, 118 (2d Cir.

2010). But a prosecutor’s improper remark warrants a new trial only if the defendant has suffered

“substantial prejudice.” United States v. Banki, 

, 120 (2d Cir. 2011). In determining

whether alleged misconduct has caused “substantial prejudice,” we consider “[1] the seriousness

of the misconduct, [2] the measures adopted by the trial court to cure the misconduct, and [3] the

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certainty of conviction absent the improper statements.” 

States v. Parker, 

, 98 (2d Cir. 1990)).

        We find that the District Court was within its discretion to deny Smith’s motion for a

mistrial. First, the challenged remark did not rise to the level of serious misconduct, but was

instead a fair response to the defendant’s arguments. In his summation, defense counsel disputed

that Smith’s actions were sufficient to constitute an attempted bank robbery, which counsel

described as being when “someone goes into a bank with a gun,” or “is 20 feet away and gets cold

feet.” App. 55 (District Court quoting defense counsel’s summation). As the District Court

correctly noted, by describing an “attempt” in these terms, counsel opened the door to the

Government’s rebuttal argument that it was necessary to arrest Smith before he reached the bank

that was his intended target. See, e.g., United States v. Tocco, 

, 130 (2d Cir. 1998)

(“Under the invited or fair response doctrine, the defense summation may open the door to an

otherwise inadmissible prosecution rebuttal. In particular, where the defense summation makes

arguments and allegations against the government, the prosecutor may respond to them in

rebuttal.” (citation omitted)).

        Even if the Government’s remark was improper, though, Smith was not substantially

prejudiced by it. The challenged remark comprised a single sentence of the Government’s

rebuttal summation, and referenced safety concerns in only a generalized manner. Moreover, the

remark did not directly concern the gun charge of which Smith was actually convicted. The

District Court instructed the jury that it needed to decide the case based solely on the evidence, not

including the arguments made in summation. And the evidence of Smith’s guilt on the gun

charge was overwhelming, as discussed below. Accordingly, the Government’s remark during


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summation does not warrant reversal of Smith’s conviction. See United States v. Shareef, 

, 78 (2d Cir. 1999) (“[W]e have been reluctant to reverse where the transgression was

isolated . . . and the evidence against the defendant was strong.”).

       Representing himself pro se, Smith also challenges the sufficiency of the evidence to

support his conviction and alleges that there was error in the grand jury proceedings. We review

challenges to the sufficiency of evidence de novo, “view[ing] the evidence in the light most

favorable to the government, drawing all inferences in the government’s favor and deferring to the

jury’s assessments of the witnesses’ credibility.” United States v. Sabhnani, 

, 241

(2d Cir. 2010) (quoting United States v. Parkes, 

, 225 (2d Cir. 2007)). The jury’s

verdict will be sustained if “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Romano, 

, 335 (2d Cir. 2015)

(quoting Jackson v. Virginia, 

, 319 (1979)).

       We find no merit in Smith’s pro se arguments. First, there was ample evidence to support

his conviction on the gun charge. The FBI found five guns and assorted ammunition at a storage

unit rented in Smith’s name. Before his arrest, Smith told the FBI’s informant that he kept one of

his guns, the .44 Magnum he intended to use during the robbery, at an Extra Space Storage facility.

Smith also gave the informant a business card with the facility’s name. The conversation was

recorded and later replayed to the jury. At the time he was arrested, Smith was carrying another

Extra Storage Space business card, as well as a key that matched the lock at the Extra Storage

Space unit where the guns were found. Surveillance video at the facility showed Smith filling out

rental paperwork, paying for the unit, and placing items inside it. The unit itself contained a box

with a shipping label containing Smith’s name and address, in addition to the guns and


                                                  4
ammunition. This evidence was more than sufficient to support Smith’s conviction on the

weapons charge.

       We also find Smith’s claim regarding inaccuracies in the grand jury testimony to be

without merit. Smith claims that the FBI agent who investigated his case lied during his

testimony to the grand jury in claiming that the informant was not paid. But the agent’s testimony

was not inaccurate; during his testimony before the grand jury, the agent noted that the informant

was “not being paid for the information.” Supp. Pro Se Br. 22. At trial, the agent clarified that

the informant was reimbursed for expenses and received “subsistence” payments, but again

asserted that the informant was not compensated directly for providing information. There was

thus no error in the testimony that warrants overturning Smith’s conviction.

       Finally, with the assistance of counsel, Smith challenges a special condition of supervised

release restricting his access to credit “unless [he] is in compliance with [his] installment payment

schedule.” App. 87. Conditions of supervised release are generally reviewed for abuse of

discretion. United States v. Green, 

, 122 (2d Cir. 2010). “When the defendant does

not object to the conditions, however, we review only for plain error,” unless there was no

opportunity to raise a contemporaneous objection, in which case we may “relax” the standard and

employ “a less rigorous plain error review.” 

financial penalties were imposed on Smith, there was no installment payment

schedule associated with his sentence. The Government consents to a limited remand on this

issue. We agree, and remand for reconsideration of this special condition in accordance with the

procedures set forth in United States v. Jacobson, 

, 22 (2d Cir. 1994). If the District

Court decides to retain the condition, it should explain its reasoning. Should the District Court


                                                 5
retain the condition, Smith may restore this appeal by notice to the Clerk of this Court within 30

days of the District Court’s order. If the District Court vacates the condition, that will terminate

the appeal.

       We have considered all of Smith’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM in part, VACATE in part, and REMAND the case for further

proceedings consistent with this order.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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