17‐3178‐cr (L) United States v. Insaidoo 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 15th day of March, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐3178‐cr (L); 17‐3230‐cr (Con) KWAME A. INSAIDOO, ROXANNA INSAIDOO, Defendants‐Appellants.

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FOR APPELLEE: ELI J. MARK, Assistant United States Attorney (David Zhou, Daniel B. Tehrani, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT MICHELLE ANDERSON BARTH, The Law KWAME A. INSAIDOO: Office of Michelle Anderson Barth, Burlington, Vermont.

FOR DEFENDANT‐APPELLANT BEVERLY H. VAN NESS, Law Firm of Beverly ROXANNA INSAIDOO: Van Ness, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Caproni, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED

in part and VACATED in part and the case is REMANDED.

Defendants‐appellants Kwame A. Insaidoo (ʺKwameʺ) and Roxanna

Insaidoo (ʺRoxannaʺ) appeal from judgments entered October 4, 2017, convicting them,

following a six‐day jury trial, of conspiracy, embezzlement, wire fraud, and money

laundering, in connection with a government‐funded not‐for‐profit organization,

United Block Association, Inc. (ʺUBAʺ), and a government‐sponsored mortgage

program.

Kwame was sentenced principally to forty‐eight monthsʹ imprisonment

and three yearsʹ supervised release. Roxanna was sentenced principally to thirty

monthsʹ imprisonment and three yearsʹ supervised release. We assume the partiesʹ

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

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On appeal, the Insaidoos present the following challenges to their

convictions: (1) the adequacy of the jury instructions concerning the definition of

ʺbenefitsʺ and ʺin any one year periodʺ for embezzlement under

; (2) the

sufficiency of the evidence as to whether funds disbursed to UBA under the Older

Americans Act (ʺOAAʺ), 42 U.S.C § 3001 et seq., constitute ʺbenefitsʺ; and, (3) if the

Court vacates their convictions for embezzlement, the Insaidoosʹ entitlement to

retroactive misjoinder on the remaining counts due to spillover prejudice. Separately,

Roxanna challenges the sufficiency of the evidence as to her participation in the

embezzlement scheme, and Kwame challenges one of his standard conditions of

supervised release.

I. Adequacy of the Jury Instructions

The Insaidoos challenge the adequacy of the district courtʹs jury

instructions concerning the terms ʺbenefitsʺ and ʺin any one year periodʺ in Section 666.

They did not raise this objection below, and the parties agree that an unpreserved

challenge to the specific language of a jury instruction must be reviewed for plain error.

See United States v. Skelly,

(2d Cir. 2006) (ʺ[W]e may not reverse for

failure to give a more adequate instruction . . . unless the failure constitutes ʹplain

error.ʹʺ) (citing Fed. R. Crim. P. 52(b)). An error is plain when the district court is

ʺobviously wrong in light of existing law.ʺ United States v. Ghailani,

(2d

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Cir. 2013) (quoting United States v. Tarbell,

(2d Cir. 2013)). Here, we

find no such error.

In relevant part, Section 666 provides that whoever, ʺbeing an agent of an

organization,ʺ embezzles property valued at $5,000 or more is guilty of a crime if the

organization ʺreceives, in any one year period, benefits in excess of $10,000 under a

Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or

other form of Federal assistance.ʺ

(a)‐(b).

The Insaidoos contend that the district court should have instructed the

jury that the government had to prove UBA received benefits tied to an identifiable

federal program whose ʺstructure, operation, and purposeʺ qualify the funds as federal

benefits, citing Fischer v. United States,

(2000) (holding that ʺ[t]o

determine whether an organization participating in a federal assistance program

receives ʹbenefits,ʹ an examination must be undertaken of the programʹs structure,

operation, and purposeʺ). The district court instructed the jury that, to convict, it had to

find that UBA received ʺmore than $10,000 that originated as federal money under a

federal program.ʺ Tr. 1035. The Insaidoos argue, in essence, that the jury should have

been required to find that the funds were ʺbenefitsʺ specifically within the meaning of

Section 666.

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That argument, however, is unpersuasive. This Court has treated the

question of what constitutes a benefit as a legal question for the court. See United States

v. Bahel,

, 626‐29 (2d Cir. 2011) (examining as a legal matter whether the

United Nations Participation Act, 22 U.S.C. § 287e, established a benefit program for the

purpose of § 666(b)); see also United States v. Peery,

, 1233 n.2 (8th Cir. 1992)

(ʺ[D]etermining whether [S]ection 666 applies to [the defendantʹs] conduct is a question

of law.ʺ). But see United States v. McLean,

(11th Cir. 2015) (ʺ[B]ased

on our circuit precedent, if we were to address this issue, we would determine that the

decision to classify assistance as a federal benefit was properly submitted to the jury.ʺ).

Like our evaluation of the statutory scheme underlying the United Nations

Participation Act relative to Section 666 in Bahel, determining whether the OAA

provides a federal benefit is a matter of statutory interpretation. The district court did

not err in not assigning this task to the jury. See Jaen v. Sessions,

(2d

Cir. 2018) (ʺ[S]tatutory interpretation . . . presents a question of law.ʺ).

In addition, the Insaidoosʹ claim that the district court should have further

instructed the jury on the phrase ʺin any one year period,ʺ to explicitly indicate that it

had to refer to a continuous twelve‐month period, is meritless. No plausible

understanding of ʺin any one year periodʺ would suggest that a jury would ʺcobble[]

together twelve months that were not continuousʺ between 2007 to 2017, the duration of

the Insaidoosʹ embezzlement scheme. Def. Appellant Kwame A. Insaidoo Br. at 27.

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Consequently, the district court did not commit plain error in its instructions to the jury

concerning either the benefit requirement or the phrase ʺin any one year periodʺ under

Section 666.

II. Sufficiency of the Evidence

The Insaidoos jointly challenge the sufficiency of the evidence as to

whether the government proved that UBA received a federal benefit from an

identifiable federal program to meet Section 666ʹs jurisdictional requirement. Roxanna

independently contests the governmentʹs proof of her involvement in the embezzlement

scheme. This Court reviews a challenge to the sufficiency of evidence de novo, United

States v. Bruno,

(2d Cir. 2011), examining ʺthe totality of the

governmentʹs evidence, . . . and . . . uphold[ing] the conviction if ʹany rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt,ʹʺ

United States v. Kavoukian,

(2d Cir. 2003) (per curiam) (citations

omitted). We conclude that the government adduced sufficient evidence of UBAʹs

receipt of a benefit from a federal program and Roxannaʹs participation in the

embezzlement scheme.

a. Federal Benefit to UBA

The jurisdictional element of Section 666 requires the government prove

that the organization of which the defendant is an agent ʺreceives . . . benefits in excess

of $10,000 under a Federal program involving a grant, contract, subsidy, loan,

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guarantee, insurance, or other form of Federal assistance.ʺ

(b); accord

United States v. Naiman,

(2d Cir. 2000). Because the determination of

whether the OAAʹs ʺstructure, operation, and purposeʺ establishes a federal program

that provides benefits was not a question for the jury, see supra, to satisfy Section 666ʹs

jurisdictional requirement, the government only had to prove that UBA received more

than $10,000 in federal funds in a one‐year period between 2007 and 2017. See Naiman,

. Here, the government provided testimonial and documentary evidence

that UBA received federal funds well in excess of $10,000 in at least three fiscal years:

$454,529 in 2013; $556,015 in 2014; and $548,960 in 2015. Accordingly, the government

supplied sufficient evidence to prove Section 666ʹs jurisdictional element.

b. Roxannaʹs Involvement in the Embezzlement Scheme

Contrary to Roxannaʹs argument, the government presented sufficient

evidence that she was involved in the embezzlement scheme. In addition to testimony

indicating that Roxanna was generously compensated relative to her minimal work for

UBA, there was evidence that she failed to report money she received from UBA on her

tax returns; transferred UBA funds to a shell company she owned; falsified invoices

from her shell company about services rendered to UBA; and used the funds she

received from UBA for personal expenses. Based in part on this evidence, a rational

trier of fact could find that Roxanna was an active participant in her husbandʹs ongoing

embezzlement scheme.

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Given that the jury instructions were not erroneous and the government

provided sufficient evidence to satisfy its burden of proof with respect to each

defendant on the Section 666 count, we need not reach the issue of whether the

Insaidoos are entitled to retroactive misjoinder as a result of spillover prejudice from

the evidence regarding embezzlement.

III. Supervised Release

Kwame Insaidoo also challenges the imposition of condition twelve of his

standard conditions of supervised release, which provides that, in the event Kwameʹs

probation officer determines that he poses a risk to any person, the officer may require

Kwame to notify that person of such risk (the ʺriskʺ condition). We recently vacated an

identical ʺriskʺ condition on the ground that it was ʺvague and afford[ed] too much

discretion to the probation officer.ʺ United States v. Boles,

, 111‐12 (2d Cir.

2019) (citing United States v. Peterson,

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

Furthermore, the government has ʺconsent[ed] to a limited remand for the purposes of

permitting the [d]istrict [c]ourt to impose any condition or combination of conditions

that comply with . . . [the] non‐delegation requirementʺ set forth in Peterson, 248 F.3d at

85‐86. Appellee Br. at 42‐43. Accordingly, we vacate the ʺriskʺ condition imposed by the

district court and remand for the court to make further findings and impose any

condition or conditions pursuant to Boles and Peterson.

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We have considered the Insaidoosʹ remaining arguments and find them to

be without merit. Accordingly, the judgments of the district court are AFFIRMED in all

respects except that we VACATE the ʺriskʺ condition of supervised release as to

Kwame and REMAND to the district court for compliance with Peterson and Boles.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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