18‐2200‐cr United States v. Songkram Roy Sahachaisere

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 5th day of December, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee,

v. 18‐2200‐cr

SANDY WINICK, aka JERRY SARRANO, aka JOHN PETER SMITH, aka ABDIEL VERGARA, aka ROBIN CHEER, aka GLEN FORMAN, aka KYLE BENDFORD, aka STEPHEN THOMPSON, GREGORY CURRY, KOLT CURRY, aka MICHAEL EAST, GREGORY ELLIS, GARY KERSHNER, JOSEPH MANFREDONIA, aka MAURIZIO, aka RICHARD, aka PANAMA JOE, aka GUILLERMO MENDOZA, CORT POYNER, WILLIAM SEALS, Defendants,

SONGKRAM ROY SAHACHAISERE, Defendant‐Appellant. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: ANDREY SPEKTOR, Assistant United States Attorney (Mark Bini, Amy Busa, Tyler Smith, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: JOEL M. STEIN, Law Office of Joel M. Stein, New York, New York.

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

New York (Vitaliano, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Songkram Roy Sahachaisere appeals from a

judgment entered July 20, 2018, following a jury trial, convicting him of (1) conspiracy

to commit securities fraud, in violation of

, (2) conspiracy to commit wire

fraud, in violation of

, (3) two counts of wire fraud, in violation of

, and (4) securities fraud, in violation of

(b) and 78ff. The

district court sentenced Sahachaisere principally to twenty‐seven monthsʹ

2 imprisonment and three yearsʹ supervised release, and ordered him to pay $778,444.78

in restitution and a $500 special assessment.

On appeal, Sahachaisere argues that the district court abused its discretion

in admitting inadmissible hearsay and lay opinion testimony at trial. In its brief on

appeal, the government concedes that it ʺimproperly sought the admission of certain . . .

testimony,ʺ Govʹt Br. at 22, but argues that any evidentiary errors were harmless. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

Because Sahachaisere appeals a judgment of conviction following

a jury trial, we summarize the evidence adduced in the light most favorable to the

government. See United States v. Thompson,

(2d Cir. 2018).

Sahachaisere, along with other conspirators, participated in a scheme to manipulate the

price and volume of securities by utilizing deceptive trading practices and press

releases to defraud investors. At trial, the government presented substantial evidence

through the testimony of two accomplice witnesses ‐‐ Mohammed Dolah and Joseph

Manfredonia ‐‐ including emails, recorded conversations, and wire intercepts. The two

accomplice witnesses linked Sahachaisere to the securities fraud scheme, and numerous

emails and call transcripts corroborated their testimony.

In addition, Federal Bureau of Investigation (ʺFBIʺ) Special Agent Kurt

Dengler testified that the FBI executed search warrants and intercepted

3 communications through wiretaps. Over Sahachaisereʹs objections, Dengler also

testified that the evidence revealed a ʺmassive international schemeʺ involving dozens

of individuals in multiple countries ʺengaged in various securities fraud schemes.ʺ

Appʹx at 60. Dengler described the ʺtypes of participantsʺ in the securities scheme,

including control persons, promoters, and middlemen. Appʹx at 60. Dengler identified

Sahachaisere as a promoter. Sahachaisere objected to Denglerʹs characterization of the

evidence. In response, the government explained that Denglerʹs testimony was ʺcase

presentationʺ summarizing the admissible evidence. Appʹx at 64‐65. The district court

overruled Sahachaisereʹs objection.

Dengler also described the internal structure and operations of Moneyline

Brokers (ʺMoneylineʺ) ‐‐ an offshore brokerage used in the criminal scheme. Dengler

explained how customers with Moneyline accounts could deposit stocks into those

accounts and then instruct Moneyline to sell those stocks without disclosing the

customersʹ names. Sahachaisere also objected to this testimony. His objection was

overruled.

In summation, the government reviewed the admissible evidence

supporting Sahachaisereʹs conviction: the testimony of accomplice witnesses

implicating Sahachaisere in the scheme, calls and recordings among the conspirators

(including Sahachaisere), Sahachaisereʹs emails, and information establishing that the

press releases were false. The government also referred to various objectionable

4 portions of Denglerʹs testimony, including his efforts to find information corroborating

the press releases, and the governmentʹs undercover purchase of stocks. A jury

convicted Sahachaisere on November 9, 2015.

Following his conviction, Sahachaisere moved for a new trial under Fed.

R. Crim. P. 33, arguing that Denglerʹs testimony regarding Sahachaisereʹs role in the

scheme and Moneylineʹs structure was improperly admitted. The district court denied

Sahachaisereʹs motion, holding that ʺ[n]one of the testimony offered by Special Agent

Dengler . . . strayed outside the boundaries set by circuit precedent.ʺ Govʹt Appʹx at

402. The district court sentenced Sahachaisere on July 20, 2018. This appeal followed.

STANDARD OF REVIEW

We review the district courtʹs decision to admit evidence for abuse of

discretion, United States v. Spoor,

(2d Cir. 2018), and we will reverse

only if an error affects a ʺsubstantial right.ʺ United States v. Garcia,

(2d

Cir. 2005) (quoting Fed. R. Evid. 103(a)). ʺAn evidentiary error affects substantial rights

if it had a ʹsubstantial and injurious effect or influence on the juryʹs verdict.ʺ

(internal quotation marks and citation omitted).

DISCUSSION

As noted, the government concedes that portions of Denglerʹs testimony

included inadmissible hearsay or constituted inadmissible lay opinion. Specifically,

Denglerʹs testimony regarding Moneylineʹs structure and operations was inadmissible

5 hearsay as he was conveying information that he had learned from debriefing

cooperators and reviewing records. Fed. R. Evid. 801(c)(1). Moreover, his

characterization of Sahachaisereʹs role in the criminal scheme constituted inadmissible

lay opinion testimony.1 Despite conceding that these evidentiary errors occurred, the

government argues that any errors were harmless given the substantial, admissible

evidence provided at trial.

It is troubling when, as here, the government fights hard for the admission

of improper evidence, succeeds, obtains a conviction based in part on that evidence, and

then acknowledges on appeal that the evidence should not have been admitted in the

first place, while arguing that the conviction should be upheld because the errors were

harmless. We would expect the government to do better. Nevertheless, given the

overwhelming strength of the governmentʹs admissible evidence, including recordings

of Sahachaisereʹs own incriminating statements, we agree that the evidentiary errors

were harmless.

1 See, e.g., United States v. Grinage,

(2d Cir. 2004) (ʺ[T]he agentʹs testimony as to his interpretations of the calls went beyond permissible lay opinion testimony under Rule 701(b) because, rather than being helpful to the jury, it usurped the juryʹs function. Moreover, . . . the agent was presented to the jury with an aura of expertise and authority which increased the risk that the jury would be swayed by his testimony, rather than rely on its own interpretation of the calls.ʺ). 6 I. Admissible Evidence

The government provided substantial, admissible evidence supporting

Sahachaisereʹs conviction in the form of: accomplice witness testimony implicating

Sahachaisere, recordings of calls among the conspirators (including Sahachaisere),

Sahachaisereʹs emails, and information establishing that the press releases were false.

The evidence confirmed that Denglerʹs testimony characterizing Sahachaisereʹs role in

the scheme was accurate and cumulative: Dolah testified that Sahachaisere participated

in the fraudulent scheme. Emails and call recordings show that Sahachaisere recruited

other promoters. Other recorded conversations between Dolah and Sahachaisere show

Sahachaisere manipulating stock prices and trading volumes.

With respect to Moneylineʹs internal structure and operations, Dolahʹs and

Manfredoniaʹs testimony also confirmed that Denglerʹs testimony about Moneyline was

accurate and cumulative of other evidence properly admitted at trial. Dolah and

Manfredonia both testified that Moneyline was an offshore brokerage firm.

Manfredonia also testified that a ʺbig advantageʺ of using Moneyline was that ʺevery

trade that was made was made in Moneylineʹs name. So nothing appeared on any

trades in the United States with my corporate name . . . .ʺ Govʹt Appʹx at 362. This

7 testimony is consistent with Denglerʹs testimony regarding Moneylineʹs structure and

operations.2

II. Harmless Error

We conclude that the district courtʹs evidentiary errors were harmless.

See Fed. R. Crim. P. 52(a). We will ʺuphold a verdict in the face of an evidentiary errorʺ

when it is ʺhighly probable that the error did not affect the verdict.ʺ United States v.

Dukagjini,

(2d Cir. 2003) (internal quotation marks and citation omitted).

In conducting this inquiry, we consider: ʺ(1) the overall strength of the prosecutionʹs

case; (2) the prosecutorʹs conduct with respect to the improperly admitted evidence; (3)

the importance of the wrongly admitted testimony; and (4) whether such evidence was

cumulative of other properly admitted evidence.ʺ United States v. Kaplan,

,

123 (2d Cir. 2007) (citation omitted).

Here, we agree with the district court that the government provided

ʺcomprehensive and overwhelmingly incriminatingʺ evidence at trial supporting

Sahachaisereʹs conviction. Govʹt Appʹx at 387. As described above, the government

offered substantial admissible evidence, including the testimony of accomplice

witnesses linking Sahachaisere to the scheme, incriminating calls, recordings, emails,

2 Moreover, this Court is not persuaded by Sahachaisereʹs argument regarding the governmentʹs lack of production of the Moneyline records. The government was not required to submit these documents into evidence. In any event, Denglerʹs inadmissible hearsay testimony regarding Moneylineʹs structure and operations was cumulative of and consistent with the testimony of accomplice witnesses. 8 and evidence establishing that the press releases were false. The inadmissible portions

of Denglerʹs testimony were cumulative of other properly admitted evidence. Further,

while the government did refer to some of the improper evidence in summation, it

relied heavily on admissible evidence, including the recordings and the testimony of the

two cooperators. See Govʹt Appʹx at 374 (ʺAnd you remember Moneyline. We heard

about it from Mo Dolah, from Joseph Manfredonia.ʺ).

For these reasons, this case falls squarely within our precedent finding

evidentiary error harmless. See Garcia, 413 F.3d at 217‐18 (finding harmless erroneous

admission of agentʹs lay opinion describing defendantʹs role in crime when

governmentʹs summation chiefly focused on admissible evidence during summation,

which was overwhelming based on testimony of accomplice witness); Dukagjini,

(finding harmless erroneous admission during case agentʹs testimony of

hearsay as other cooperators ʺtestified extensivelyʺ regarding defendantʹs participation

in charged conspiracy). Accordingly, any error in admitting portions of Denglerʹs

testimony was harmless. We conclude that it is ʺhighly probable that the error did not

affect the verdict,ʺ Dukagjini,

(internal quotation marks and citation

omitted), and the district court did not abuse its discretion in denying Sahachaisereʹs

motion for a new trial.3

3 Finally, we find no need to address Sahachaisereʹs good faith defense argument because this argument was already presented to the jury. The district court instructed the jury on the 9 * * *

We have considered Sahachaisereʹs remaining arguments and conclude

they are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

good faith defense and there was ample evidence in the record demonstrating Sahachaisereʹs lack of good faith. 10