United States v. Cushing
United States v. Cushing
Opinion of the Court
SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-appellant Michael Cushing appeals from the judgment of the United States District Court for the Southern District of New York (Pauley, /.), convicting him, after a two-week trial, of conspiracy to commit securities fraud, obstruction of justice, and perjury, in violation of 18 U.S.C. § 371, securities fraud, in violation of 15 U.S.C. §§ 78j(b), 78ff, 18 U.S.C. § 2, and 17 C.F.R. § 240.10b-5, and perjury, in violation of 18 U.S.C. § 1621, and sentencing him to concurrent terms of 60 months’ and 97 months’ imprisonment, three years of supervised release, and a $300 special assessment. For the reasons that follow, we affirm.
First, we find that the evidence that Cushing had engaged in securities fraud while he was employed at Monitor Investment Group, Inc., Meyers Pollock Robbins, Inc., and Hoffman Schneider, was properly admitted at trial pursuant to Federal Rule of Evidence 404(b) for the three reasons urged by the government, to wit: to prove the charge in the indictment that Cushing withheld material information concerning his background and qualifications from WAMEX investors; to establish that Cushing did so intentionally; and to explain to the jury, Cushing’s relationship with Anthony Hidalgo. See United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998) (“[OJther acts evidence ... can be admitted for any purpose except to show criminal propensity ....”) (internal quotation marks and citation omitted). Cushing’s argument that he was not under an affirmative duty to disclose all information concerning his prior work experience in his press releases and other public announcements goes to the validity of the material omission charge, not to the admissibility of the evidence necessary to prove it. We also reject Cushing’s alternative argument that the probative value of the evidence was substantially outweighed by its potential for unfair prejudice. See Fed.R.Evid. 403.
Third, Cushing argues that the district court improperly adopted the $24 million loss amount set forth in the Presentence Investigation Report (“PSR”). Because, at sentencing, Cushing did not challenge the PSR’s calculation but argued instead that the entire loss amount was not attributable to him, we review Cushing’s instant contention for plain error. Cushing conceded at the sentencing hearing that the sale of WAMEX shares resulted in a $20 million loss. The government, more precisely, explained in a letter brief that “19.5 million shares of WAMEX stock ... were sold in the marketplace ... for a total of $20.4 million.” Because the loss of $20.4 million — like a loss of $24 million — required the enhancement of Cushing’s offense level by 16 steps pursuant to U.S.S.G. § 2Fl.l(b)(l)(Q),
Finally, we hold that the district court committed no error in enhancing Cushing’s sentence for use of “sophisticated means” pursuant to U.S.S.G. § 2Fl.l(b)(6)(C). Cushing argues that the district court should not have applied the enhancement because his involvement in the stock manipulation was limited to making public statements. But, as noted above, the Guidelines provide that, in cases of jointly undertaken criminal activity, a
Accordingly, for the foregoing reasons, we AFFIRM the judgment of conviction and sentence of the district court.
. The government argues that Cushing waived his right to request individual polling by failing to request this procedure before the district court. We, however, do not need to address whether a criminal defendant can waive his or her right to an impartial jury, an issue identified but not resolved in United States v. Nelson, 277 F.3d 164, 205 (2d Cir. 2002), because even if the right to an impartial jury cannot be waived, the lack of the procedural step of polling to determine whether any other juror had seen the cartoon does not mean that the defendant was denied the right to an impartial jury. In Nelson, we were careful to point out that "we do not assert that the presence of a possibly biased juror, whose bias has never been challenged by defendants at voir dire, necessarily taints the jury panel.” Id. at 206.
. All references herein are to the May 1, 2000 version of the Guidelines, the version applied at sentencing.
Reference
- Full Case Name
- United States v. Mitchell CUSHING, Russell Chimenti, Roger Detrano
- Cited By
- 2 cases
- Status
- Published