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 18 U.S.C. § 371, (2) conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, (3) two counts of wire fraud, in violation of 18 U.S.C. § 1343, and (4) securities fraud, in violation of 15 U.S.C. §§ 78(b) and 78ff. The district court sentenced Sahachaisere principally to twenty‐seven monthsʹ

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, 896 F.3d 155, 159 (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

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

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, 904 F.3d 141, 153 (2d Cir. 2018), and we will reverse only if an error affects a ʺsubstantial right.ʺ United States v. Garcia, 413 F.3d 201, 210 (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 Id. (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

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.

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

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, 326 F.3d 45, 61 (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, 490 F.3d 110, (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,

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, 326 F.3d at 62 (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, 326 F.3d at 61 (internal quotation marks and citation omitted), and the district court did not abuse its discretion in denying Sahachaisereʹs motion for a new trial.3

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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