18‐1023‐cr
United States v. Eberhardt


                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ).
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 4th day of November, two thousand nineteen.

PRESENT:  BARRINGTON D. PARKER,
          DENNY CHIN,
          JOSEPH F. BIANCO,
                      Circuit Judges.
------------------------------------x
UNITED STATES OF AMERICA,
               Appellee,

                             v.                                        18‐1023‐cr

CHRISTOPHER EBERHARDT,
               Defendant‐Appellant.
------------------------------------x

FOR APPELLEE:                                      MONICA J. RICHARDS, Assistant
                                                   United States Attorney, for James P.
                                                   Kennedy, Jr., United States Attorney for
                                                   the Western District of New York,
                                                   Buffalo, New York.

FOR DEFENDANT‐APPELLANT:                           PETER F. LANGROCK, Langrock,
                                                   Sperry & Wool, LLP, Middlebury,
                                                   Vermont.
              Appeal from the United States District Court for the Western District of

New York (Siragusa, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Christopher Eberhardt appeals the judgment of the

district court entered April 3, 2018, following his conviction by a jury on one count of

distribution, five counts of receipt, and two counts of possession of child pornography,

and sentencing him principally to 180 monthsʹ imprisonment. Eberhardt argues that

the district court abused its discretion when it denied his motion for a mistrial based on

allegations of prosecutorial misconduct during summation. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

              We review the district courtʹs denial of a motion for mistrial for abuse of

discretion. See United States v. Zemlyansky, 908 F.3d 1, 9 n.3 (2d Cir. 2018). ʺWhen

reviewing claims of prosecutorial misconduct based on inappropriate remarks in the

Governmentʹs . . . summation[], we will reverse if the misconduct caused substantial

prejudice by so infecting the trial with unfairness as to make the resulting conviction a

denial of due process.ʺ United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 95 (2d

Cir. 2014) (internal quotation marks omitted). In determining whether a defendant has

suffered ʺsubstantial prejudice,ʺ we consider the severity of the misconduct, the

measures adopted to cure the misconduct, and the certainty of conviction absent the


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misconduct. See United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002). Where

Eberhardt failed to object to statements at trial, we review for plain error. See United

States v. Carr, 424 F.3d 213, 219 (2d Cir. 2005).

1.     The Severity of the Misconduct

                The alleged misconduct falls into three general categories: statements

vouching for the governmentʹs evidence or inserting personal opinion, statements

designed to inflame the juryʹs passions, and statements mischaracterizing or misstating

the evidence.

                As to the first category, Eberhardt contends that the prosecutor engaged in

impermissible vouching and inserted his personal opinion into closing arguments three

times: (1) when he announced to the jury ʺthere is no question that [we] have brought

you the right defendant,ʺ Def. Appʹx at 28; (2) when he referred to the laptop as

Eberhardtʹs ʺprized possession,ʺ saying ʺI think he cared for it a lot,ʺ Def. Appʹx at 32;

and (3) when he described the testimony of the case agent as to the absence of

incriminating evidence on Eberhardtʹs phone using the personal pronoun ʺIʺ five times

and noting the testimony as ʺsignificant.ʺ Def. Appʹx at 41‐42. Eberhardt did not

object to any of these statements at trial.

                As to the second category, Eberhardt argues that the prosecutor inflamed

the juryʹs passions during summation with the following three statements: (1) a

comment that Brian Gayheart was ʺfive or six years youngerʺ than Eberhardt and



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ʺnever going to leave his parentsʹ home,ʺ Def. Appʹx at 31; (2) the invocation of

testimony concerning statements Eberhardt made about a young boy that would make

the jurors think their children were potential victims, Def. Appʹx at 29‐30; and (3) a

reference to Eberhardtʹs mother as ʺmommy.ʺ Def. Appʹx at 39. Eberhardt objected to

each of these statements, with the court remaining silent as to the first objection and

sustaining the remaining objections.

              As to the third category, Eberhardt argues that the prosecutor three times

misstated or mischaracterized the evidence when he suggested that Eberhardt: (1)

ʺclean[ed] outʺ his cell phone prior to his arrest, Def. Appʹx at 38; (2) viewed

pornography online on his phone after the laptop was seized, Def. Appʹx at 40‐41; and

(3) had a relationship with Christopher Best, the friend who bought Eberhardt the

laptop on which the pornography was found, that was somehow unusual. Def. Appʹx

at 48. Eberhardt objected to each of these statements, and the objections were all

sustained.

              Of the nine statements Eberhardt identifies as misconduct, six were not

inappropriate. With the exceptions discussed below, the prosecutor did not intimate

the existence of additional evidence, improperly inflame the juryʹs passions, or misstate

or mischaracterize the evidence. For example, the prosecutorʹs statements regarding

Eberhardtʹs comments about the young boy appealed to relevant facts and so did not

inflame the juryʹs passions. See United States v. Modica, 663 F.2d 1173, 1180 (2d Cir.



                                             4
1981) (per curiam) (alterations and internal quotation marks omitted). Moreover, the

prosecutorʹs suggestion that Eberhardt had cleared out his cell phone prior to its seizure

was a permissible inference drawn from facts presented at trial. See United States v.

Salameh, 152 F.3d 88, 138 (2d Cir. 1998) (per curiam).

              Three statements, however, were at least arguably inappropriate: the

statement that the laptop was Eberhardtʹs prized possession, the discussion of the case

agentʹs testimony, and the comment about Eberhardtʹs relationship with Best. As to

the first two statements, the government concedes that the prosecutor inserted his

personal opinion. Both statements, however, were couched in a discussion of relevant

evidence, including the evident care Eberhardt showed for the laptop by wrapping it in

its original packaging and storing it in Gayheartʹs closet after each use, and the agentʹs

testimony explaining that one can view pornography on a device without saving it to

that device. To the extent these statements constituted any misconduct, it was mild

and not severe.

              The government concedes that the discussion of the relationship between

Best and Eberhardt mischaracterized the evidence. ʺ[I]t is improper for a prosecutor to

mischaracterize the evidence or refer in summation to facts not in evidence.ʺ United

States v. Rosa, 17 F.3d 1531, 1548‐49 (2d Cir. 1994). When discussing Bestʹs and

Eberhardtʹs relationship, the prosecutor observed that Best was ʺthe one that when he

came back from Afghanistan, we didnʹt hear about gifts for mom or dad or – .ʺ Def.



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Appʹx at 48. Again, the misstatement was not severe and, as discussed below, was

immediately followed by an objection and curative instruction.

              Even where no single comment by the prosecutor resulted in ʺsubstantial

prejudice,ʺ we must also consider the cumulative impact of improper statements. See

United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995). Here, taken in the context of

the trial as a whole, any misconduct constituted an ʺaberration in an otherwise fair

proceeding,ʺ thereby mitigating its severity and foreclosing ʺsubstantial prejudice.ʺ

Elias, 285 F.3d at 191.

2.     Curative Measures

              This Court considers not only the severity of the statement, but also

measures taken to cure any misconduct. See Elias, 285 F.3d at 190. After Eberhardtʹs

counsel objected to the prosecutorʹs comment about Best and moved for a mistrial, the

judge sustained the objected, denied the motion, and immediately instructed the jury

that counselʹs comments were not evidence. These instructions mitigated any

prejudice to Eberhardt. Indeed, the district court reminded the jury throughout the

trial that the lawyersʹ statements were not evidence and should not be considered as

such. See, e.g., Govʹt Appʹx at 22 (instructing the jury prior to opening arguments that

ʺcertain things are not evidence and should be considered by you as such [including]

. . . [s]tatements, arguments, and questions by the lawyersʺ); Govʹt Appʹx at 600 (during

closing arguments stating ʺcomments of counsel are not evidenceʺ); Govʹt Appʹx at 618‐



                                             6
19 (when ruling on an objection during closing arguments stating ʺcomments that

counsel make on summations . . . are not evidenceʺ); Govʹt Appʹx at 659‐60 (during

closing arguments stating ʺ[a]rguments and statements by the lawyers are not

evidenceʺ).

3.    Certainty of Conviction

              Finally, we consider the certainty of conviction in the absence of the

misconduct. See Elias, 285 F.3d at 190. Here, there was no question that child

pornography was found on the laptop recovered from Gayheartʹs closet; the question

was rather to whom the laptop belonged. The government presented overwhelming

evidence that the computer belonged to Eberhardt: three witnesses testified that the

computer belonged to Eberhardt, the registered owner of the laptop was ʺChris E,ʺ who

had logged in 608 times, there were no other user accounts, the laptop was password

protected, and a fragment of data stating ʺmy name is Chris Eberhardt and I live in the

USA my add is po box 125 Fayette NYʺ was recovered from the laptop. In addition,

there was trial testimony that, when law enforcement officers spoke to Eberhardt on

February 13, 2015, he admitted, among other things, that the laptop was his and that he

used it at the Gayheartʹs residence to receive child pornography. Given this evidence,

in all likelihood the jury would have found Eberhardt guilty even absent the improper

comments.




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              Considering the mildness of the misconduct, the repeated curative

instructions, and the certainty of conviction absent the misconduct, we conclude that

Eberhardt did not suffer ʺsubstantial prejudice,ʺ and, accordingly, that the district court

did not abuse its discretion when it denied the motion for mistrial.

                                      *      *      *

              We have considered all of Eberhardtʹs remaining arguments and find

them to be without merit. For the foregoing reasons, the judgment of the district court

is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk of Court




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