UNITED STATES of America, Appellee, v. Richard BRITT, Defendant-Appellant, 507 F. App'x 37

Present: ROSEMARY S. POOLER, PETER W. HALL and DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. Richard Britt appeals from the judgment of conviction dated November 10, 2011 and entered by the district court on November 15, 2011. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. As the Appellant did not raise the claims in this appeal below, they are forfeited and thus reviewed only for plain error. Fed. R.Crim.P. 52(b).

The plain error standard requires the Appellant to demonstrate that “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (internal quotation marks omitted).

Appellant cannot demonstrate plain error as to any of his claims in this case. In order to be granted a new trial on the grounds that a witness committed perjury, the defendant must show that “(

i) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government knew or should have known of the perjury at [the] time of trial; and (iv) the perjured testimony remained undisclosed during trial.” United States v. Zichettello, 208 F.3d 72, 102 (2d Cir.2000) (citations omitted). In this case, Appellant has totally failed to demonstrate that the witness committed perjury; thus, a new trial is not warranted on these grounds. Despite Appellant’s arguments to the contrary, the witness’s testimony was not in conflict with the representations of the government at trial.

We find Britt’s remaining arguments to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.