15-992(L) United States v. Romano

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.

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 22nd day of November, two thousand twenty-two. Present: JOSÉ A. CABRANES, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 15-992(L) 19-3507(Con) 19-3573(Con) 19-3815(Con) 22-1782(Con) JOSEPH ROMANO, VINCENT ROMANO, AND KEVIN WELLS, Defendants-Appellants, SALVATORE ROMANO, MICHAEL DIBARI, AKA BOB ATWELL, BILL GRAYSON, AKA MARK VAITH, AND RUSSELL BARNES, AKA RUSTY, AKA RUSS, AKA KEVIN WELLS, Defendants. _____________________________________

For Appellee: Susan Corkery, Lauren H. Elbert, Assistant United

1 States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY

For Defendant-Appellant Joseph Gary M. Kaufman, Law Office of Gary Kaufman, Romano: PLLC, New York, NY

For Defendant-Appellant Vincent Arthur Kenneth Womble, Jr., Zeman & Womble, Romano: LLP, New York, NY

For Defendant-Appellant Kevin Wells: Peter J. Tomao, Garden City, NY

Appeal from a judgment of the United States District Court for the Eastern District of New

York (Eric R. Komitee, Judge) entered on July 19, 2022.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the District Court is AFFIRMED.

Defendants-Appellants Joseph Romano, Vincent Romano, and Kevin Wells appeal from

an amended judgment in the United States District Court for the Eastern District of New York,

entered against them on July 19, 2022. The judgment followed a limited remand from this Court,

which directed the District Court primarily to review Defendants’ objections to the magistrate

judge’s report and recommendation (“R&R”) concerning the restitution entered in this case. See

United States v. Romano, No. 15-992,

(2d Cir. Feb. 10, 2022). The District

Court conducted a de novo review of the objections and adopted the R&R in full, with the

exception of a fifteen-dollar reduction in the restitution owed to one victim. Defendants’ appeals

were reinstated, pursuant to the terms of the limited remand, following their letter request dated

July 16, 2022. Dkt. 316. We assume the parties’ familiarity with the case.

We review issues of law in a restitution order “de novo, findings of adjudicative fact for

clear error, and the multi-factor balancing aspects of such an order for abuse of discretion.” United

States v. Jaffe,

(2d Cir. 2005). Defendants argue, first, that the District Court

2 erred in determining the restitution amounts. For largely the reasons given in Judge Komitee’s

thorough analysis, we reject these arguments. Defendants charge the Government with relying on

unqualified experts who used an unexplained valuation methodology, but as Judge Komitee noted,

those experts—including a former president of the Professional Numismatics Guild—had ample

experience and qualifications, and their estimates of the value-to-price ratio closely matched the

ratio between the price Defendants paid for their inventory of coins and their revenue during the

conspiracy. Defendants further complain that the Government used small sample sizes and did

not document the identity of the valued coins. These arguments fall short: the Government

sampled 2,200 coins and relied on sworn affidavits to establish the victims’ ownership. Finally,

the calculation errors Defendants allege are, as the Government explains, not errors at all: they

reflect merely instances in which the Government relied on actual losses (for victims who sold

their coins) rather than imputed losses (for victims who kept them).

Beyond Defendants’ general arguments, Wells specifically objects to the restitution

calculation as applied to him. He claims that he caused less of the loss than did the other

defendants. But the calculation already takes into account that he joined the conspiracy later than

the others. And once Wells signed up, he became liable for the full loss from that point onwards

so long as he “knew or reasonably should have known about some or all of the conspiracy’s past

[conduct].” See United States v. Bengis,

(2d Cir. 2015). Nor was Wells

improperly denied the chance “to examine the witness who prepared” the restitution calculation

that applied to him. Wells Br. at 18. On the contrary, Wells was offered the chance to question

Agent Hessle at the July 2014 restitution hearing, an opening that—although he did not take it—

constituted the “opportunity to rebut the Government’s allegations” to which he was entitled.

3 United States v. Sabhnani,

(2d Cir. 2010) (quoting United States v. Maurer,

, 151–52 (2d Cir. 2000)).

Next, Wells and the Romanos argue that the District Court erred by declining to make the

restitution order joint and several with two other defendants. We disagree. Our limited remand

noted that Defendants and the Government agreed that the amended judgments entered October

16, 2019, “erroneously omitted certain co-Defendants from the list” of those “held jointly and

severally liable for the restitution amount” and instructed the District Court to “[c]orrect any

clerical errors.” Romano,

at *3 n.5, *6. The District Court, however, determined

that the omission was not a clerical error, which must be the kind of “minor, uncontroversial”

mistake that “a clerk or amanuensis might commit.” Special App’x 104 (quoting United States v.

Lansing,

(2d Cir. 2003) (summary order) (quoting United States v. Werber,

(2d Cir. 1995))). Because the record does not clearly reveal the previous judge’s

intent to include those two defendants in the amended judgments of October 16, 2019, see Special

App’x. at 104–05, the district court here acted within its “considerable discretion” in fashioning

an appropriate restitution order, United States v. Yalincak,

(2d Cir. 2022); see

also Lansing,

(“[Rule 36] does not permit a court to amend a judgment ‘to

effectuate its unexpressed intentions at the time of sentencing.’” (quoting Werber,

)).

Finally, Joseph Romano argues that the District Court violated his Fifth Amendment right

to due process by denying his request for appointed counsel after he had elected to proceed pro se.

Because Romano could have raised this argument on the first appeal, and did not, he has waived

it. See United States v. Ben Zvi,

(“[A] decision made at a previous stage of

litigation, which could have been challenged in the ensuing appeal but was not, becomes the law

of the case.” (quoting Cnty. of Suffolk v. Stone & Webster Eng’g Corp.,

, 1117 (2d

4 Cir. 1997))). Romano’s related contention that the failure to hold a new restitution hearing on

remand violated due process cuts no more ice. Our remand was limited: It required the District

Court to review “the timely filed objections of Vincent Romano and Wells” to the R&R, not to

restart the restitution hearing process from scratch. Romano,

at *6. Accordingly,

the District Court’s adherence to our instructions did not violate due process.

* * *

We have considered the Defendants’ remaining arguments and find them unpersuasive.

The judgment of the District Court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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