19‐71‐cr United States v. Richard Brega 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 18th day of February, two thousand twenty.

PRESENT: DENNIS JACOBS, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee, ‐v‐ 19‐71‐cr RICHARD BREGA, Defendant‐Appellant. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR APPELLEE: MICHAEL D. MAIMIN, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief), for Geoffrey S.

Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: BRIAN A. JACOBS (Jeremy H. Temkin, Nicole C. Cassidy, on the brief), Morvillo Abramowitz Grand Iason & Anello PC, New York, New York, and Kerry A. Lawrence, on the brief, Calhoun & Lawrence, LLP, White Plains, New York.

Appeal from the United States District Court for the Southern District of New York (Karas, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Richard Brega appeals from a judgment entered December 21, 2018, after a jury trial, convicting him of mail fraud, in violation of 18 U.S.C. §§ 1341, 1346, and bribery and theft concerning a program receiving federal funds, in violation of 18 U.S.C. §§ 666(a)(1)(A), (2). The district court sentenced Brega principally to 50 monthsʹ imprisonment, to be followed by one year of supervised release. On appeal, Brega challenges the sufficiency of the evidence relating to his bribery conviction, the prosecutorʹs summation during his trial, and the procedural reasonableness of his sentence. We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Brega owned and controlled Brega DOT Maintenance Corp. (ʺBrega DOTʺ), a vehicle maintenance and repair shop that serviced customers in Rockland County, New York. Brega DOT contracted with Rockland Boards of Cooperative Educational Services (ʺRockland BOCESʺ) to maintain and repair school buses.

According to the indictment, from 2012 through 2014, Brega participated in a bribery and fraud scheme with William Popkave, the transportation supervisor at Rockland BOCES. As part of this scheme, Brega allegedly falsified invoices submitted to Rockland BOCES for preventative maintenance (ʺPMʺ) on buses that were never actually brought to Brega DOT.1 After Rockland BOCES began using Brega DOT for PM in 2008 or 2009, Popkave brought his personal vehicle and vehicles belonging to his friends and family to Brega DOT for maintenance services. Several years later, Popkave began approving Brega DOT invoices sent to Rockland BOCES for PM, even though he understood that services were not being performed. As part of the scheme, Popkave understood that he was receiving ʺfree vehicle service from Brega DOT.ʺ Appʹx at 1281. When Popkave and Brega discussed ʺarranging for bills on PM servicesʺ Brega ʺmade referencesʺ to Popkaveʹs outstanding debt and ʺ[k]ept [Popkave] up‐to‐date with the total, where it was, [and] where [he] stood.ʺ Appʹx at 1286. After Popkave ʺsent the PMs over,ʺ he believed that he would ʺget some credits toward [his outstanding] billʺ with Brega DOT. Appʹx at 1284. Brega did not issue ʺcreditsʺ to Popkave, but he also never made

1 To remain compliant with the New York Department of Transportation (ʺDOTʺ) regulations, Rockland BOCES was required to show that its buses received PM and passed a DOT inspection. efforts to collect Popkaveʹs debt. Popkave understood that if he ʺdidnʹt put pressure on [Brega], [Brega] didnʹt put pressure on [him].ʺ Appʹx at 1285.

In late 2014, Brega asked Popkave to go for a walk in the Brega DOT parking lot. Popkave testified that during this ʺwalk and talk,ʺ Brega was concerned that he was ʺgoing to be investigated for business actionsʺ and that he wanted to ʺclear up all his open accounts,ʺ including Popkaveʹs outstanding debt to Brega DOT. Appʹx at 1296‐97. Popkave agreed to (ostensibly) sell Brega automotive tools in exchange for a payment that would settle substantially all of his debt, while Brega promised to ʺslowlyʺ repay Popkave the value of the tools.

Brega was charged with: (1) conspiracy to commit mail fraud, (2) mail fraud, (3) federal programs bribery, (4) theft of federal funds, and (5) obstruction of justice. The jury acquitted Brega of obstruction of justice, was unable to reach a verdict on the conspiracy to commit mail fraud count, and convicted Brega of the three remaining counts. This appeal followed.

DISCUSSION I. Sufficiency of the Evidence ʺWe review sufficiency of evidence challenges de novo, but defendants face a heavy burden, as the standard of review is exceedingly deferential.ʺ United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018) (internal quotation marks omitted). ʺWe must view the evidence in the light most favorable to the government, crediting every

inference that could have been drawn in the governmentʹs favor, and deferring to the juryʹs assessment of witness credibility and its assessment of the weight of the evidence.ʺ Id. (internal quotation marks and brackets omitted).

Brega contends that the evidence was insufficient to show that he agreed to provide free vehicle repairs in exchange for Popkaveʹs assistance. Bregaʹs argument is unavailing because the evidence, viewed in the governmentʹs favor, was sufficient to support his conviction. The evidence included: Popkaveʹs testimony that Brega consistently reminded him of his outstanding bill when they discussed PM, Popkaveʹs understanding that if he ʺdidnʹt put pressure on [Brega], [Brega] didnʹt put pressure on [him],ʺ Appʹx at 1285, and Bregaʹs forgiveness of Popkaveʹs $47,318.81 of personal debt after Popkave helped Brega DOT process several PM invoices. Because we are required to view the evidence both in totality and in the light most favorable to the Government, we conclude that there was sufficient evidence to sustain Bregaʹs bribery conviction.

II. Prosecutorial Misconduct ʺA defendant bears a substantial burden in arguing for reversal on the basis of prosecutorial misconduct in the summation,ʺ and ʺ[f]laws in the governmentʹs summation will require a new trial only in the rare case in which improper statements ‐‐ viewed against the entire argument to the jury ‐‐ can be said to have deprived the defendant of a fair trial.ʺ United States v. Caracappa, 614 F.3d 30, 41 (2d Cir. 2010). When looking at an inappropriate remark to decide whether it warrants a new trial, ʺwe look

to the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.ʺ Id. (internal quotation marks omitted).

Brega contends that he was denied a fair trial because the government engaged in misconduct in summation that caused him substantial prejudice.

Specifically, he claims that the government made improper comments during its rebuttal summation by: (1) ʺdisparaging defense counselʺ and (2) vouching for guilt by arguing that ʺmembers of the government team only ʹlook for justice,ʹʺ thereby ʺallud[ing] to facts outside the record.ʺ Appellantʹs Br. at 38‐39. In response, the government argues that each allegedly improper statement was appropriate as rebuttal to arguments raised by Brega.

Viewed in the context of the trial as a whole, the governmentʹs statements were permissible arguments about the merits of the defendantʹs theory of the case or were appropriate responses to defense counselʹs own summation comments, which impugned the integrity of the governmentʹs case. See United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (ʺ[T]he government is allowed to respond to an argument that impugns its integrity or the integrity of the case, and when the defense counsel have attacked the prosecutorʹs credibility or the credibility of the government agents, the prosecutor is entitled to reply with rebutting language suitable to the occasion.ʺ (internal quotation marks omitted)).

First, the allegedly ʺdisparaging commentsʺ occurred when the government stated that it was defense counselʹs job to ʺmake argumentsʺ and noted that counsel could argue ʺthat the sun is not shining.ʺ Appʹx at 999. This comment was not ʺdisparagingʺ and cannot constitute misconduct because it occurred in the context of describing the contradictions in the defenseʹs theory ‐‐ notably, the defense counselʹs suggestion that no fraud occurred and, at the same time, characterization of the governmentʹs witnesses as untrustworthy because they were fraudsters.

Second, the governmentʹs reference to the prosecution team as ʺcareer Government folks looking for justice,ʺ Appʹx at 1010, was made in response to the defenseʹs argument that the case against Brega was ʺcarefully engineeredʺ by ʺstrong‐ arm[ing] witnesses into falsely accusing Richard Brega of illegal acts.ʺ Appʹx at 947‐48.

The government responded by explaining that the prosecution team went ʺwhere the case takes you. You look for justice. This is not about strong‐arming people into getting anybody, any particular person.ʺ Appʹx at 1010. This statement was an understandable response to defenseʹs argument that Popkave and other witnesses were ʺstrong‐armedʺ into accusing Brega of the charged crimes. See United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992). Even if the governmentʹs statements rose to the level of misconduct, which, viewed in the context of the entire trial, we do not say, Brega still fails to satisfy the requirements for a retrial. See Caracappa, 614 F.3d at 41. First, the statements were not ʺsevere,ʺ as they constituted a small part of the summation.

Second, no specific curative measures were taken, as defense counsel did not object to any of the statements, but the district court did instruct the jury that ʺ[w]hat the lawyers said in their . . . closing statements . . . is not evidence.ʺ Appʹx at 1034. Finally, there was sufficient evidence supporting Bregaʹs convictions, as discussed above.

III. Procedural Reasonableness of Sentencing Section 3C1.1 of the Sentencing Guidelines provides for a two‐level increase ʺ[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendantʹs offense of conviction and any relevant conduct; or (B) a closely related offense.ʺ U.S.S.G. § 3C1.1. The district court applied the obstruction of justice enhancement after finding, by a preponderance of the evidence, that Brega ʺobstructed justiceʺ through the automotive ʺtools transaction.ʺ Appʹx at 1462. On appeal from a district courtʹs decision to apply an enhancement, we review the courtʹs findings of fact for clear error, and ʺ[w]e review de novo a ruling that the established facts constitute obstruction of justice, giving due deference to the district courtʹs application of the guidelines to the facts.ʺ United States v. Pena, 751 F.3d 101, 105 (2d Cir. 2014) (per curiam) (internal quotation marks omitted).

We conclude that the district courtʹs application of the obstruction‐of‐ justice enhancement was not unreasonable. The district courtʹs finding that Bregaʹs acts

in concealing Popkaveʹs outstanding debt to Brega DOT through a false scheme in selling automotive tools was supported by the evidence and sufficient to establish an obstructive intent. See United States v. Peterson, 385 F.3d 127, 142 (2d Cir. 2004) (affirming obstruction enhancement after concluding that sufficient evidence supported a motive to ʺimpede the investigationʺ). Moreover, the district court was permitted to enhance Bregaʹs sentence based on acquitted conduct, see United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005), and the district court relied on sufficient evidence (namely, Popkaveʹs testimony, the checks from the automotive tools transaction, and the timing of the discussion in the Brega DOT parking lot) to conclude, by a preponderance of the evidence, that Brega obstructed justice.

* * * We have considered Bregaʹs 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