United States v. Liounis ( 2016 )

14-3216-cr
United States v. Liounis
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 18th day of February, two thousand sixteen.
PRESENT: RALPH K. WINTER,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 14-3216-cr
PETER LIOUNIS, AKA “Mark Anderson,” AKA
“Andrew Black,” AKA “James Weston,” AKA “Mike
Solli,” AKA “Mike Slolli,” AKA “Mike Sloli,”
Defendant-Appellant,
RUSLAN RAPOPORT, AKA “Sam Freed,” AKA “Alex
James,” AKA “Al Jason,” AKA “Mark Berg,”
Defendant.*
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FOR APPELLANT: Robert J. Boyle, Law Office of Robert J. Boyle,
New York, New York.
*
The Clerk of Court is directed to amend the caption as set forth above.
1
FOR APPELLEE: Susan Corkery, Daniel A. Spector, Assistant
United States Attorneys, for Robert L. Capers,
United States Attorney for the Eastern District
of New York, Brooklyn, New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (I. Leo Glasser, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on August 26, 2014, is AFFIRMED.
Defendant Peter Liounis stands convicted after a jury trial of nine counts of
conspiratorial and substantive mail, wire, and securities fraud, see 15 U.S.C. §§ 78j(b),
78ff;1 18 U.S.C. §§ 1341, 1343, 1349, for which he received a low-end Guidelines
sentence of 292 months’ imprisonment. On appeal, Liounis’s counsel argues that (1) he
was denied the right to counsel of his choice, (2) his post-arrest statements should have
been suppressed, (3) the government’s trial conduct violated his right to remain silent,
(4) his trial counsel was constitutionally ineffective, and (5) his sentence is procedurally
and substantively unreasonable. Liounis raises additional arguments in a supplemental
pro se brief. We assume the parties’ familiarity with the facts and record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Right to Counsel
Liounis argues that he was denied his counsel of choice at both trial and at
sentencing. We disagree.
1
It appears that the computer program used to enter the Judgment did not afford enough
space for the second “f” in 15 U.S.C. § 78ff. See D.A. 550. The district court should
correct this scrivener’s error manually to avoid any confusion as to the crime of
conviction.
2
a. Adjournment of Trial
Four days before the scheduled start of trial, Liounis—who was then proceeding
pro se (but with standby CJA counsel)—sought an adjournment to a date when recently
retained, but unidentified, counsel could assume responsibility for his defense. We
identify no abuse of discretion in the experienced trial judge’s denial of such an
eve-of-trial adjournment given his (1) reasonable concern that the request was a delay
tactic, see United States v. Pascarella, 84 F.3d 61, 68–69 (2d Cir. 1996); (2) proper
consideration of hardship to eleven victim-witnesses traveling to New York for trial, see
United States v. Brumer, 528 F.3d 157, 160 (2d Cir. 2008); and (3) appointment of
standby counsel to represent Liounis fully at trial.2 When trial began, more than one
year after Liounis began to proceed pro se, and almost two years after his arrest, he had
already had sufficient time to secure retained counsel if he so desired. See United States
v. Scopo, 861 F.2d 339, 344 (2d Cir. 1988) (holding that denial of last-minute request for
adjournment did not violate right to counsel where case had been pending for more than
two years). Further, the district court had already granted three adjournments: at
Liounis’s request in October 2013, at the parties’ joint request in November 2013, and at
the government’s request in December 2013 (over Liounis’s objection).
2
Though counsel professed hesitancy about his ability to do a competent job “under
these circumstances,” D.A. 206, in light of Liounis’s vacillation and the district court’s
suspicion that his request was a delay tactic, its refusal to grant the adjournment was not
an abuse of discretion. See also Morris v. Slappy, 461 U.S. 1, 13–14 (1983) (holding
that Sixth Amendment right to counsel does not guarantee “meaningful relationship” with
counsel). Indeed, the trial judge would subsequently commend counsel’s “vigorous
defense” of Liounis at trial despite “overwhelming evidence of guilt.” G.A. 120.
3
Thus, we conclude that the denial of adjournment did not deny Liounis his right to
counsel of his choice.
b. Sentencing
Liounis argues that he was also denied counsel at sentencing when the district
court relieved his trial attorney (the second CJA attorney appointed for Liounis) without
assigning new counsel. Liounis contends that he never unequivocally expressed a desire
to proceed pro se at sentencing and that the district court’s inquiry into his competence to
make such a decision was inadequate. We review a district court’s conclusion regarding
the constitutionality of a defendant’s waiver of the right to counsel de novo, see United
States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993); accord United States v. Nina, 607 F.
App’x 33, 36 (2d Cir. 2015), affirming if “any reasonable view of the evidence supports
it,” United States v. Spencer, 995 F.2d at 11 (internal quotation marks omitted), and
mindful that whether a waiver is knowing and intelligent “depends upon the particular
facts and circumstances of the case and characteristics of the defendant himself,” United
States v. Fore, 169 F.3d 104, 108 (2d Cir. 1999).
In this case, Liounis’s actions must be viewed in the context of the choice
presented to him by the district court when he expressed dissatisfaction with trial counsel.
The district court reasonably, and clearly, advised Liounis that he did not have a right to
pick his CJA attorney; his choice was between representation by trial counsel—who had
performed “superbly,” D.A. 319—or proceeding pro se and without standby counsel.
See United States v. Barton, 712 F.3d 111, 118 (2d Cir. 2013) (stating that “voluntary and
unequivocal” requirement “does not mean . . . a court may not, under certain
4
circumstances, require the defendant to select from a limited set of options a course of
conduct regarding his representation,” including forcing defendant “to choose between
waiver and another course of action as long as the choice presented to him is not
constitutionally offensive” (internal quotation marks omitted)); United States v.
Culbertson, 670 F.3d 183, 193 (2d Cir. 2012) (holding that, where “court has already
replaced counsel more than once,” court may reasonably require intractable defendant
“either to proceed with the current appointed lawyer, or to proceed pro se”). In this
context, Liounis’s non-responsive reiteration of his desire for a different court-appointed
attorney, even if not accompanied by an express statement that he wished to proceed pro
se, was reasonably construed by the district court as the latter election. See, e.g., United
States v. Alden, 527 F.3d 653, 661 (7th Cir. 2008); King v. Bobby, 433 F.3d 483, 492
(6th Cir. 2006); United States v. Kneeland, 148 F.3d 6, 12 (1st Cir. 1998); United States
ex rel. Testamark v. Vincent, 496 F.2d 641, 643–44 (2d Cir. 1974).3
Further, because the district court had already conducted an extensive colloquy
with Liounis to ensure that his pre-trial waiver of counsel was knowing and intelligent,
see Faretta v. California, 422 U.S. 806 (1975), the district court did not need to repeat
that detailed exchange in concluding that Liounis had knowingly and intelligently
decided to forego court-appointed counsel at sentencing, particularly given Liounis’s
previous experience with the criminal justice system. See, e.g., Wilson v. Walker, 204
3
The district court had also made it clear to Liounis several months earlier that he could
not pick and choose which attorney represented him, explaining, “[I]f you do not wish to
have [appointed counsel] continue to represent you, I will not appoint another lawyer,”
D.A. 310. Liounis nevertheless agreed to continue with appointed counsel.
5
F.3d 33, 38 (2d Cir. 2000) (concluding that defendant showed “purposeful choice
reflecting an unequivocal intent to forego the assistance of counsel,” particularly in light
of his “background and previous experiences in the criminal justice system” (internal
quotation marks omitted)).
Thus, we reject Liounis’s right-to-counsel challenge as meritless.
2. Post-Arrest Statements
Notwithstanding his signature on a rights waiver form, Liounis asserts that his
post-arrest statements should have been suppressed both because he invoked his right to
remain silent, see Miranda v. Arizona, 384 U.S. 436, 444–45 (1966), and because, even if
he did not, his confession was involuntary, see Schneckloth v. Bustamonte, 412 U.S. 218,
224 (1973). Neither challenge has merit.
As to the first claim, Liounis faults the district court for rejecting his Miranda
challenge without citing his supporting testimony. The argument is defeated by the
record wherein the district court credited DHS Special Agent Richard DeLisio’s
testimony about events leading to the waiver and rejected Liounis’s testimony. See
United States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990) (recognizing
credibility assessments at suppression hearing as province of district judge that appellate
court will not overturn). While Liounis contends that he would not have spoken with
Agent DeLisio after initially refusing to do so, the district court was not compelled to so
find. See, e.g., United States v. Gonzalez, 764 F.3d 159, 166 (2d Cir. 2014) (upholding
admission of statements where defendant first invoked right to silence but later advised
agents that he wished to speak with them).
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Liounis’s claim that his physical condition rendered his confession involuntary
also fails because the district court, again resolving credibility disputes, reasonably found
that Liounis was suffering only from allergies when interrogated, which did not prevent
him from knowingly and voluntarily responding to questions while agents retrieved his
medications. See United States v. Maldonado-Rivera, 922 F.2d at 972 (stating that such
findings of fact must be upheld unless “clearly erroneous”); cf. United States v. Taylor,
745 F.3d 15, 27 (2d Cir. 2014) (holding statement involuntary where record compelled
conclusion that defendant was in “stupor” when interrogated).
Nor can Liounis demonstrate error, much less plain error, in the district court’s
failure to reopen sua sponte his suppression hearing after DeLisio’s trial testimony. See
United States v. Marcus, 560 U.S. 258, 262 (2010) (stating plain error standard); cf. In re
Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196 (2d Cir. 2008)
(applying abuse of discretion review to denial of request to reopen suppression hearing).
While that testimony offered more detail about Liounis’s initial reluctance to speak with
authorities, it nowhere indicated “unambiguous” invocation of the right to remain silent.
Berghuis v. Thompkins, 560 U.S. 370, 381–82 (2010); see United States v. Plugh, 648
F.3d 118, 125 (2d Cir. 2011).
3. Trial References to Liounis’s Reluctance To Speak with Authorities
Liounis argues that his right to remain silent was violated by agent testimony
about his reluctance to “make any statements” because Liounis stated, “I don’t want to
incriminate myself,” D.A. 257, 262. As Liounis did not object to the testimony at trial,
our review is limited to plain error. Liounis cannot satisfy this standard because, while
7
Doyle v. Ohio, 426 U.S. 610 (1976), precludes the prosecution from using a defendant’s
post-arrest silence as substantive evidence of guilt, there is no Doyle error where, as here,
a defendant is found not to have unambiguously invoked his right to remain silent before
making an inculpatory admission, see United States v. Okatan, 728 F.3d 111, 118 (2d Cir.
2013) (stating that constitutionality of government’s use of defendant’s silence turns on
whether defendant asserted privilege against self-incrimination). Indeed, because a jury
must decide for itself the reliability of a defendant’s inculpatory statement, the
circumstances informing the statement are properly admitted. See United States v.
Yousef, 327 F.3d 56, 131 (2d Cir. 2003) (noting requirement that district court “‘instruct
the jury to give such weight to the confession as the jury feels it deserves under all the
circumstances’” (quoting 18 U.S.C. § 3501(a))).
Liounis also asserts error in DeLisio’s opinion testimony regarding the agent’s
understanding of why Liounis was hedging his responses to interrogation. The
argument fails because “there is no theoretical prohibition against allowing lay witnesses
to give their opinions as to the mental states of others” with whom they deal directly.
United States v. Rea, 958 F.2d 1206, 1214–15 (2d Cir. 1992); see United States v. Garcia,
291 F.3d 127, 141 (2d Cir. 2002) (observing that to extent witness offered opinion about
what he understood defendant to mean, he was indirectly offering opinion about what
defendant knew, which evidence “in itself is not impermissible”); see generally United
States v. Garcia, 413 F.3d 201, 212 (2d Cir. 2005) (observing, with respect to lay opinion
testimony, that “rule recognizes the common sense behind the saying that, sometimes,
‘you had to be there’”). But even if there were error here, it was harmless. See United
8
States v. Garcia, 291 F.3d at 143 (noting such error is harmless “if the appellate court can
conclude with fair assurance that the evidence did not substantially influence the jury”
(internal quotation marks omitted)). This is because the evidentiary value of DeLisio’s
opinion that Liounis was trying to shield himself by answering questions indirectly or
“hypothetically” was comparatively insignificant to Liounis’s repeated assertions that any
statements he made would be incriminatory, which strongly manifested consciousness of
guilt. See e.g., Quintana v. Armstrong, 337 F. App’x 23, 26 (2d Cir. 2009) (stating that
defendant’s concern that eyewitness may “get scared and tell about the incident” was
“strongly suggestive” of consciousness of guilt); United States v. Adegbite, 877 F.2d 174,
180 (2d Cir. 1989) (holding that defendant’s “deliberate evasiveness” in response to
question “bespoke a consciousness of guilt”).
The same conclusion obtains as to DeLisio’s opinion testimony that a throw-away
phone was used to call conspiracy leader “Alex,” given Liounis’s admission that he
called Alex on the phone, and records showing that “about ninety percent” of the phone’s
calls were to Alex. D.A. 286–87.
4. Ineffective Assistance of Trial Counsel
Liounis charges trial counsel with constitutionally ineffective representation in
(a) conceding guilt on summation, (b) not moving to reopen the suppression hearing, and
(c) failing to object to DeLisio’s testimony regarding Liounis’s refusals to answer
questions directly. While we generally decline to resolve ineffectiveness claims on
direct review, see Massaro v. United States, 538 U.S. 500, 504–05 (2003), we will do so
where, as here, the factual record is sufficiently developed that resolution of the claim is
9
“beyond any doubt,” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (internal
quotation marks omitted).
Our resolution of the merits of Liounis’s second and third claims against him
precludes him from demonstrating the requisite prejudice from trial counsel’s failure to
raise them. See Strickland v. Washington, 466 U.S. 668, 694 (1984). As for Liounis’s
claim that trial counsel conceded his identity as “Mark Anderson” to the jury, Appellant
Br. 68, the record is so clearly to the contrary as to defeat the ineffective assistance claim
beyond any doubt on direct appeal. Indeed, counsel was careful not to concede
Liounis’s identity. See, e.g., D.A. 290d, 290e; G.A. 55–56. Further, given the jury’s
ability to compare the recorded voice of “Mark Anderson” with Liounis’s voice (as a
result of his decision to testify), counsel sensibly did not confine his defense to the issue
of identity, arguing instead that Liounis was, at most, a cold-caller who did not
understand the fraudulent nature of the scheme. In sum, Liounis cannot overcome the
“strong presumption” that counsel’s conduct “might be considered sound trial strategy.”
Strickland v. Washington, 466 U.S. at 689 (internal quotation marks omitted).
5. Sentencing Challenges
We apply “a particularly deferential form of abuse-of-discretion review” to
Liounis’s claim that his 292-month sentence is procedurally and substantively
unreasonable. United States v. Cavera, 550 F.3d 180, 187–88 & n.5 (2d Cir. 2008) (en
banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012).
10
Although a district court errs procedurally if, inter alia, it miscalculates a
defendant’s Guidelines range or rests its sentence on clearly erroneous factual findings,
see United States v. Cavera, 550 F.3d at 190, no such errors are evident here.
Liounis argues that the district court miscalculated loss, see U.S.S.G. § 2B1.1(b),
by treating the Rockford Group and UBS schemes as relevant conduct without sufficient
evidence of a common scheme or course of conduct with the Grayson Hewitt fraud, see
id. § 1B1.3(a)(2), and without particularized findings as to his personal involvement. In
fact, the district court satisfied its particularized-finding obligation by adopting facts set
forth in the presentence report (“PSR”). See United States v. Carter, 489 F.3d 528, 539
(2d Cir. 2007) (approving explicit reliance on PSR facts for requisite findings). Those
facts, which Liounis does not dispute on appeal, indicated that: (1) an investor-victim
recognized a caller identifying himself as “Andrew Black from UBS” as having the same
voice as a caller posing as “James Weston” in the Rockford scheme; (2) another
investor-victim recognized the voice of “Andrew Black” as belonging to “Mark
Anderson from Grayson Hewitt”; and (3) subsequent analysis confirmed that the voices
of “Andrew Black” and “Mark Anderson” belonged to Liounis. This was sufficient to
admit a preponderance finding of common scheme. See United States v. Hertular, 562
F.3d 433, 447 (2d Cir. 2009) (discussing preponderance standard at sentencing).
Indeed, the conclusion was reinforced by the district court’s observations that the
schemes were carried out during the same time period, involved “almost precisely the
same conduct,” and utilized sophisticated promotional materials that were “virtually
identical in every respect.” D.A. 503.
11
Nor do we identify error in the district court’s acceptance of the government’s
representation as to the number of victims and amount of loss in the Rockford scheme.
One week before sentencing, the government provided Liounis and the district court with
factual support in the form of a Securities and Exchange Commission declaration filed in
a civil action against Rockford explaining how bank records—provided to Liounis more
than two years earlier—indicated that the fraud involved at least 200 victims and caused
losses of approximately $11 million. Thus, Liounis cannot demonstrate either that the
district court’s findings lack factual support or that he was unable to mount an informed
challenge. These circumstances, together with the hours afforded by the district court
for Liounis to raise numerous objections, defeat Liounis’s attempt to locate procedural
error in the lack of a formal evidentiary hearing on these issues. See United States v.
Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (holding that neither due process nor
Sentencing Guidelines require full-blown evidentiary hearing to resolve sentencing
disputes where defendant is afforded “some opportunity to rebut the Government’s
allegations”); accord United States v. Sabhnani, 599 F.3d 215, 258 (2d Cir. 2010).
As for Liounis’s substantive challenge, we will set aside a sentence on that ground
only in “exceptional cases” where the sentence cannot be located within the range of
permissible decisions available to a sentencing court. United States v. Cavera, 550 F.3d
at 189; accord United States v. Broxmeyer, 699 F.3d at 288–89. In the “overwhelming
majority of cases, a Guidelines sentence will fall comfortably within the broad range” of
permissible sentences. United States v. Jones, 531 F.3d 163, 178 (2d Cir. 2008). This
case is no exception.
12
As the district court’s thorough discussion of the statutory sentencing factors
makes plain, Liounis’s crime was particularly serious, his lack of remorse evident, and
his risk of recidivism high. See 18 U.S.C. § 3553(a). Liounis carried out a
sophisticated scheme that defrauded more than 250 victims—many elderly and
vulnerable—out of millions of dollars. The district court found Liounis to be both
callously indifferent to the pain caused by his scheme, and lacking in respect for the law,
the latter evident from (a) his commencement of the charged fraud soon after release
from an 87-month sentence for an earlier fraudulent scheme, (b) his contempt of court in
this case, and (c) his obstruction of justice at trial. In these circumstances, a low-end
Guidelines sentence cannot be deemed outside the district court’s permissible choices.
Nor is a different conclusion warranted by the mitigating factors cited by Liounis,
specifically, his lack of substantial financial benefit or leadership role, and his purported
untreated drug addiction. The weight to be afforded such factors is a “matter firmly
committed to the discretion of the sentencing judge” and generally beyond appellate
review. United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006).
We, therefore, reject Liounis’s sentencing challenges as without merit.
6. Pro Se Claims
Liounis’s pro se challenge to the reasonableness of his sentence fails for the same
reasons as his counseled challenge.
Liounis’s sufficiency challenge based on United States v. Newman, 773 F.3d 438,
450 (2d Cir. 2014), fails because receipt of a personal benefit is not an element of any of
the crimes of conviction.
13
Liounis’s indictment challenges are defeated by both the record and long-standing
precedent. See United States v. Schlesinger, 598 F.2d 722, 726 (2d Cir. 1979) (holding
that Fifth Amendment does not require court to look behind facially valid indictment to
consider evidence upon which it is based); United States v. Scopo, 861 F.2d at 341
(approving redactions to provide jury with less prejudicial version of indictment).
His challenge under Brady v. Maryland, 373 U.S. 83 (1963), lacks record support.
As the government explains, the only documents identified by Liounis that were not
either publicly available or previously disclosed to him do not exist.
Liounis’s speedy trial claims fail for the reasons set forth in the district court’s
well-reasoned memorandum and order of October 10, 2013.
His claim of judicial bias fails because adverse judicial rulings cannot support
such a claim absent “deep-seated favoritism or antagonism that would make fair
judgment impossible.” United States v. Yousef, 327 F.3d at 170 (internal quotation
marks omitted). That is not this case. To the contrary, the district judge methodically
addressed dozens of Liounis’s pro se applications spanning hundreds of single-spaced,
typed pages. Moreover, the judge patiently strove to provide Liounis with a fair and
impartial forum notwithstanding Liounis’s frequent obstreperous and self-defeating
conduct. Cf. Liteky v. United States, 510 U.S. 540, 555–56 (1994) (stating that
“expressions of impatience, dissatisfaction, annoyance, and even anger” are insufficient
to establish bias or partiality). On this record, the district judge’s failure to recuse
himself manifests no abuse of discretion. See In re Basciano, 542 F.3d 950, 957 (2d
Cir. 2008) (identifying standard of review).
14
Insofar as Liounis’s litany of pro se ineffective assistance claims are coextensive
with those raised in his counseled brief, we have already explained why they fail.
Consistent with our preference for hearing such claims on collateral review, see Massaro
v. United States, 538 U.S. at 504, we decline to address his remaining ineffectiveness
claims on the present record, instead dismissing them without prejudice to Liounis filing
a petition under 28 U.S.C. § 2255.
Because Liounis’s remaining constitutional claims are presented only
“perfunctorily,” we deem them waived. See, e.g., United States v. Botti, 711 F.3d 299,
313 (2d Cir. 2013).
7. Conclusion
We have considered all of Liounis’s remaining counseled and pro se arguments,
and we conclude that they are without merit. Accordingly, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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