13‐2543‐cr(L) United States v. Bengis

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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 16th day of April, two thousand fifteen. 4 5 PRESENT: JOHN M. WALKER, JR., 6 JOSÉ A. CABRANES, 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ____________________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee, 14 15 ‐v.‐ No. 13‐2543‐cr(L) 16 13‐4268‐cr(CON) 17 18 ARNOLD MAURICE BENGIS, JEFFREY NOLL, DAVID BENGIS, 19 Defendants‐Appellants, 20 GRANT BERMAN, SHAUN LEVY, 21 Defendants.

 The Clerk of Court is directed to amend the official caption to conform with the above. 1 ____________________________________________ 2 3 FOR APPELLANTS: MARK A. BERUBE, New York, NY. 4 FOR APPELLANT 5 DAVID BENGIS: ERIC M. CREIZMAN, New York, NY. 6 7 FOR APPELLEE: JARED LENOW (Brent S. Wible, on the brief), Assistant 8 United States Attorneys, for Preet Bharara, United States 9 Attorney for the Southern District of New York, New 10 York, NY. 11 ____________________________________________ 12 13 Appeal from the United States District Court for the Southern District of 14 New York (Lewis A. Kaplan, Judge). 15 16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

17 ADJUDGED, AND DECREED that the judgment of the district court be and

18 hereby is AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

19 Arnold Bengis, Jeffrey Noll, and David Bengis (jointly, “defendants”)

20 appeal from the entry of a restitution order following their guilty pleas to

21 conspiracy to commit smuggling and violate the Lacey Act, which prohibits

22 trade in illegally taken fish, and to substantive violations of the Lacey Act

23 (Arnold Bengis and Jeffrey Noll) and conspiracy to violate the Lacey Act (David

24 Bengis). The district court entered a restitution order requiring defendants to pay

25 $22,446,720 to South Africa. The defendants’ Sixth‐Amendment Apprendi

26 challenge and David Bengis’s challenge to the portion of the order holding him

2 1 jointly and severally liable for the entire restitution amount are addressed in a

2 separate opinion filed simultaneously with this summary order. In this summary

3 order, we address the remainder of defendants’ arguments. We assume the

4 parties’ familiarity with the underlying facts, procedural history, and

5 specification of issues for review.

6 First, the defendants challenge the district court’s reliance on the OLRAC

7 Method II report and Ray declaration in determining the appropriate amount of

8 restitution. We review a district court’s order of restitution for abuse of discretion

9 and will set aside the district court’s findings of fact only for clear error. United

10 States v. Reifler,

(2d Cir. 2006). In determining the proper

11 restitution amount, the district court “need not establish the loss with precision

12 but rather need only make a reasonable estimate of the loss, given the available

13 information.” United States v. Uddin,

(2d Cir. 2009) (internal

14 quotation marks omitted).

15 We discern no clear error in the district court’s determination of the

16 restitution amount. The district court relied on the OLRAC Method II report,

17 which determined the market value of the illegally harvested lobsters and was

18 prepared based on the plea agreement of defendants’ company in the South

3 1 African prosecution and on informants’ estimations of the quantity of illegally

2 harvested lobster. The district court thus relied on “a reasonable estimate [made]

3 by extrapolating the average amount of loss from known data and applying that

4 average to transactions where the exact amount of loss is unknown.”

(internal

5 quotation marks omitted).

6 Second, David Bengis argues that the Mandatory Victims’ Restitution Act

7 (“MVRA”) does not authorize a restitution order against him because South

8 Africa was not a victim of his crime. Specifically, David Bengis argues that he

9 pleaded guilty only to a conspiracy to import rock lobsters that he should have

10 known were harvested illegally, and that, distinct from the actual harvesting to

11 which his co‐defendants pleaded guilty, this crime did not harm South Africa.

12 Even assuming that his argument is not foreclosed by our decision in United

13 States v. Bengis,

(2d Cir. 2011), we find it unpersuasive.

14 The defendants’ conduct, including David Bengis’s participation in a

15 scheme to import and sell lobsters that he should have known were harvested

16 illegally, “facilitated the illegal harvesting of the lobsters by providing access to

17 the United States market and enabled the poaching to go undetected by the

18 South African government.”

. Thus, the specific conduct that is the basis

4 1 of David Bengis’s offense of conviction contributed to South Africa’s loss. See

2 United States v. Oladimeji,

(2d Cir. 2006). Therefore, the district

3 court correctly ordered David Bengis to compensate South Africa pursuant to the

4 MVRA for the loss he helped to cause.

5 Finally, the defendants make a variety of arguments in support of their

6 contention that the district court abused its discretion by entering the deposit

7 order against them. The MVRA authorizes the government to enforce a

8 restitution order “by all . . . available and reasonable means.” 18 U.S.C.

9 § 3664(m)(1)(A)(ii). And under the All Writs Act, a district court has the power

10 “to issue such commands . . . as may be necessary or appropriate to effectuate

11 and prevent the frustration of orders it has previously issued in its exercise of

12 jurisdiction otherwise obtained.” United States v. N.Y. Tel. Co.,

, 172

13 (1977) (citing

(a)). A district court’s grant of an injunction under

14 the All Writs Act is reviewed for an abuse of discretion. United States v. Intʹl Bhd.

15 of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL‐CIO,

, 49

16 (2d Cir. 2001) (per curiam).

17 Here, the government submitted substantial evidence tending to show that

18 the defendants were taking steps to evade enforcement of the district court’s

5 1 restitution order. Therefore, we conclude, contrary to the defendants’

2 contentions, that the district court had the authority to issue the deposit order to

3 effectuate its earlier restitution order.

4 We also reject the defendants’ arguments that the deposit order is overly

5 broad or vague. The government’s evidence tended to show that the defendants

6 were enlisting the help of third parties to protect their SG Hambros assets from

7 being made available to satisfy the restitution order. Thus, the district court acted

8 within its broad discretion by restraining the defendants, including Noll, and all

9 persons in active concert with them from encumbering or transferring any

10 property in which the defendants held an interest to any entity other than the

11 Clerk of Court. Finally, it is immaterial that the deposit order exceeded the relief

12 sought by the government in its underlying motion because the district court

13 acted comfortably within its discretion by issuing the deposit order for the entire

14 restitution amount.

15 We have considered the remainder of the defendants’ arguments in

16 addition to those addressed in the accompanying opinion, and find them to be

17 without merit. Accordingly, as explained in the accompanying opinion, the

6 1 judgment of the district court hereby is AFFIRMED IN PART, VACATED IN

2 PART, AND REMANDED.

3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7

7