13‐922‐cr United States of America v. Clark

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 10th day of December, two thousand fourteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee,

v. 13‐922‐cr

MAUREEN CLARK, Defendant‐Appellant,

and

CHRISTOPHER PLUMMER, Defendant.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x *The Clerk of Court is respectfully instructed to amend the caption as set forth above.

FOR APPELLEE: RICHARD J. SCHECHTER, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, for Deirdre M. Daly, United States Attorney for the District of Connecticut, on the brief), Bridgeport, Connecticut.

FOR DEFENDANT‐APPELLANT TODD A. BUSSERT, Frost Bussert, LLC, New MAUREEN CLARK: Haven, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Eginton, 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 the case is REMANDED for reconsideration of the

restitution award.

Defendant‐appellant Maureen Clark (ʺClarkʺ) appeals from the district

courtʹs March 14, 2013 amended judgment convicting her following a jury trial of

conspiracy, wire fraud, and money laundering, and sentencing her principally to 87

monthsʹ imprisonment and imposing restitution in the amount of $1,750,000.32. We

assume the partiesʹ familiarity with the facts, procedural history, and issues for review.

On appeal, Clark argues that (1) the district court improperly instructed

the jury with respect to proof of a scheme to defraud, (2) the government made

improper statements in its summation that deprived Clark of a fair trial, (3) the district

courtʹs sentence was procedurally unreasonable, and (4) the district court improperly

‐ 2 ‐

failed to account for moneys already paid to victims in its $1.75 million restitution

calculation. Each argument is addressed in turn.

1. Wire Fraud Jury Instructions

Clark argues that the district court improperly instructed the jury that the

ʺcontemplated actual harmʺ or ʺloss of money or propertyʺ required for a scheme to

defraud could be shown by proof that the defendant contemplated ʺdepriving another

of the information necessary to make discretionary economic decisions.ʺ (A 133‐34).

We review the district courtʹs jury instructions de novo, reversing only if ʺviewing the

charge as a whole, there was a prejudicial error.ʺ United States v. Aina‐Marshall,

(2d Cir. 2003).

It is well settled in the Second Circuit that investors can be harmed if they

are deprived of ʺinformation necessary to make discretionary economic decisions.ʺ

United States v. Rossomando,

, 201 n.5 (2d Cir. 1998); see also United States v.

Carlo,

(2d Cir. 2007) (per curiam) (ʺThe court properly described the

harm to the victimsʹ property interests as the deprivation of information necessary to

make discretionary economic decisions.ʺ). Therefore, the district court did not err in

explaining that a scheme to defraud could be established by proof that investors were

deprived of information necessary to make discretionary economic decisions.1

1 Clarkʹs reliance on Sekhar v. United States,

(2013), is misplaced. There, the Supreme Court analyzed the scope of the concept of ʺpropertyʺ for purposes of the ‐ 3 ‐

Moreover, the evidence at trial showed, in any event, that Clark

contemplated actual harm to investors by depriving them of material information ‐‐

including the fact that she did not actually own the property in question but had only

an option to buy.

2. Prosecutorial Misconduct

Next, Clark argues that the prosecutor engaged in misconduct in his

summation by repeatedly stating that Clark lied and by vouching for witnesses. The

district court denied Clarkʹs motion for a mistrial, as well as her post‐trial motion for

judgment of acquittal or a new trial.

To succeed on a claim for prosecutorial misconduct, a defendant must

establish that the prosecutorʹs comments ʺso infected the trial with unfairness as to

make the resulting conviction a denial of due process.ʺ Darden v. Wainwright,

(1986) (internal quotation marks omitted); see United States v. Carr,

(2d Cir. 2005). We have held that in considering whether prosecutorial misconduct

rises to the level of ʺegregious misconductʺ requiring reversal, courts must weigh three

factors: (1) the severity of the misconduct; (2) the measures adopted to cure the

misconduct; and (3) the certainty of conviction absent the misconduct. United States v.

Elias,

, 190‐92 (2d Cir. 2002). We review the district courtʹs denial of Clarkʹs

Hobbs Act, not the wire fraud statute. Id. at 2726 (ʺWhether one considers the personal right at issue to be ʹpropertyʹ in a broad sense or not, it certainly was not obtainable property under the Hobbs Act.ʺ) (emphasis in original). ‐ 4 ‐

motion for judgment of acquittal de novo, see United States v. Truman,

(2d Cir. 2012), and the district courtʹs denial of a mistrial and a new trial for abuse of

discretion, see United States v. Deandrade,

(2d Cir. 2010); United States v.

Canova,

(2d Cir. 2005).

Here, all three factors weigh against finding a due process violation. First,

the challenged conduct, even assuming it was improper, was not severe. The

prosecutorʹs assertion that Clark lied fell at least arguably within a prosecutorʹs broad

latitude in summation. See United States v. Peterson,

(2d Cir. 1987)

(noting that ʺ[u]se of the words ʹliarʹ and ʹlieʹ to characterize disputed testimony when

the witnessʹs credibility is clearly in issue is ordinarily not improper unless such use is

excessive or is likely to be inflammatoryʺ); United States v. Nersesian,

(2d Cir. 1987) (litigants enjoy ʺbroad latitudeʺ to draw inferences from the record to

suggest to the jury in summation). And here, there was a basis in the record for the

prosecutor to argue that the evidence showed that Clark had lied. Likewise, the

prosecutor did not personally vouch for witnesses, and instead merely argued, based on

the record, that its witnesses were credible. See United States v. Williams,

(2d Cir. 2012) (concluding that characterization of testimony of witnesses as ʺthe truthʺ

or ʺabsolute truthʺ was proper because it was tied to evidence supporting the

contention). Thus, there was no improper vouching.

‐ 5 ‐

Second, even if there had been any misconduct, the district court clarified

that: ʺLawyers are never permitted to express their own opinion regarding the guilt or

the non‐guilt of the defendant. . . . [T]o the extent that the lawyers in this case may have

made any comments about the ultimate issues in this case, which are for [the jury], I

caution you that you must disregard those comments of the lawyers.ʺ (A 120). The

government also emphasized that it was the juryʹs job to assess credibility (see, e.g.,

GA 628, 630, 632, 644, 670), and stated that ʺ[l]awyers donʹt express their opinions.ʺ

(GA 675). Thus, to the extent there was any misconduct, the court and prosecutor

adopted measures to cure it.

Finally, given the ample evidence before the jury, Clark most likely would

have been convicted even absent the purported misconduct. Accordingly, we conclude

that the district court did not err in denying the motion for judgment of acquittal or

abuse its discretion in denying a mistrial or a new trial.

3. Sentencing

Clark challenges the procedural reasonableness of her sentence, arguing

that the district court failed to consider her downward departure request, failed to

consider the factors set forth in

(a), improperly substituted the

probation officeʹs judgment for its own judgment, and afforded the guidelines undue

weight.

‐ 6 ‐

We review the district courtʹs sentence for reasonableness.2 See United

States v. Thomas,

(2d Cir. 2010). ʺA district court commits procedural

error where . . . it fails to calculate the Guidelines range . . . , makes a mistake in its

Guidelines calculation, . . . treats the Guidelines as mandatory, or fails adequately to

explain its chosen sentence.ʺ

(internal quotation marks omitted).

Contrary to Clarkʹs argument, the district court did consider her

downward departure request. Prior to sentencing, the parties submitted lengthy

memoranda that addressed Clarkʹs request for a downward departure. The record

makes clear that the district court considered Clarkʹs departure request, but was not

persuaded and denied it. The experienced district judge was well aware of his ability to

depart, and in any event, denials of downward departures are generally not reviewable

on appeal. See United States v. Galvez‐Falconi,

(2d Cir. 1999).

Clarkʹs remaining arguments fail to establish that the sentence was

procedurally unreasonable. The district court expressly considered § 3553, at one point

even stating that § ʺ3553 is the bible.ʺ (GA 224). Throughout the sentencing hearing,

the district court referred to § 3553, and discussed several of the pertinent factors for

consideration, including general deterrence, Clarkʹs continued belief that she did

nothing wrong, that Clark would benefit from vocational training provided while

2 The government argues for plain error review because Clark raises her objections for the first time on appeal. We need not address which standard is appropriate because under either standard, Clarkʹs arguments fail. ‐ 7 ‐

incarcerated to aid in her gainful employment upon release, and explained why Clark

was receiving a longer sentence than Plummer, who pled guilty prior to trial.

Moreover, the district court explained that it was adhering to the bottom of the

guidelines sentence, rather than going below it, as it ʺwould have liked to do,ʺ in light

of the § 3553 factors. (GA 229). Because the record supports a finding that the district

court sentenced Clark after careful consideration of the partiesʹ submissions, analysis of

the § 3553 factors, and review of the thorough PSR prepared by the probation office, we

conclude that the district court did not substitute the probation officeʹs judgment for its

own, did not afford the guidelines undue weight, and imposed a reasonable sentence.

4. Restitution

Clarkʹs final argument is that the district court improperly failed to credit

payments made to victims by a third party when calculating restitution. The

government does not dispute that payments were made, but it argues that Clark

waived that issue and the she has suffered no prejudice by any error.

We remand for the district court to reconsider the issue of restitution.

There is record evidence that two victims, Anthony Lovallo and Herman Abramowitz,

were repaid approximately $250,000 of their losses by a third party, Douglas

Grossinger, prior to trial. If true, the victims are not entitled to a second payment by

Clark because double payment would constitute an impermissible windfall. See United

States v. Boccagna,

(2d Cir. 2006) (ʺsentencing court cannot order

‐ 8 ‐

restitution that goes beyond making the victim wholeʺ) (internal quotation marks

omitted). Moreover, as for the governmentʹs argument that Clark has not been

prejudiced because she would have to reimburse Grossinger for amounts he paid to the

victims, the fact is that the judgment clearly provides for payment of $300,000 to Lovallo

and Abramowitz. As the judgment is now written, Clark is potentially subject to

further claims for amounts already paid to the victims. Accordingly, we vacate the

restitution award and remand the case to the district court to consider whether Clark

should be credited for any payments already made to the victims and whether any

adjustments must be made to the restitution order.

* * *

We have considered Clarkʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM in part and VACATE in part the judgment of

the district court, and REMAND the case for reconsideration of the restitution award.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

‐ 9 ‐