United States v. Scott ( 2010 )

08-4018-cr
USA v. Scott
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
9 CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
10 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11 “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY
12 PARTY NOT REPRESENTED BY COUNSEL.
13
14 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
15 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
16 of August, two thousand ten.
17
18 Present:
19 ROBERT A. KATZMANN,
20 PETER W. HALL,
21 DENNY CHIN,
22 Circuit Judges
23
24 ________________________________________________
25
26 UNITED STATES OF AMERICA,
27
28 Appellee,
29
30 v. No. 08-4018-cr
31
32 ALAN N. SCOTT,
33
34 Defendant-Appellant.
35 ________________________________________________
36
37 For Defendant-Appellant: DONNA R. NEWMAN , New York, NY
38
39 For Appellee: UNA A. DEAN , Assistant United States Attorney (Jo
40 Ann M. Navickas, Assistant United States Attorney,
41 on the brief), for Loretta E. Lynch, United States
42 Attorney for the Eastern District of New York,
43 Brooklyn, NY
44
1 Appeal from the United States District Court for the Eastern District of New York
2 (Bianco, J.).
3
4 ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
5 DECREED that the judgment of the district court be and hereby is AFFIRMED.
6 Defendant-appellant Alan Scott appeals from a judgment of conviction entered May 5,
7 2008 (Bianco, J.) following a guilty plea, convicting him of conspiracy to commit mail fraud in
8 violation of 18 U.S.C. §§ 1341 and 1349, and sentencing him to 32 months’ imprisonment, three
9 years’ supervised release, and restitution in the amount of $76,831.52. We assume the parties’
10 familiarity with the facts and procedural history of this case.
11 On appeal, Scott argues that the district court’s restitution order was illegal because it
12 named the administrators of the class action settlement funds that he defrauded as the victims
13 when the administrators themselves were not victims of his fraud. The government responds that
14 Scott has waived this argument because he did not object to the district court’s proposal to name
15 the administrators as the victims of the fraud. The government is correct.
16 “[W]aiver is the intentional relinquishment or abandonment of a known right.” United
17 States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks omitted). Where a
18 defendant indicates that the district court’s proposed resolution of an issue is satisfactory, he
19 waives his right to appeal that resolution. See United States v. Polouizzi, 564 F.3d 142, 153 (2d
20 Cir. 2009) (concluding that the defendant waived his right to challenge a jury instruction that he
21 had indicated was satisfactory before the district court). This is especially true in the case where,
22 “as a tactical matter,” a party raises no objection to a purported error. United States v. Quinones,
23 511 F.3d 289, 321 (2d Cir. 2007) (internal quotation marks omitted).
24 Here, Scott repeatedly asserted in the district court that he did not seek to avoid the
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1 payment of restitution. He stressed to the district court in a pre-sentencing memorandum that he
2 “[did] not seek, in any manner, to shirk his responsibility for paying restitution.” J.A. 108. And
3 at sentencing, his attorney stated, “[s]o the court is going to, as the court must, impose
4 restitution. We don’t have any objection to that, no objection to the full amount.” J.A. 165.
5 With respect to the recipient of the restitution, after much discussion the district court offered to
6 take a short recess to enable the government to contact the claims administrators to elucidate the
7 precise victims of the fraud. Scott’s attorney declined, stating “I will rely on the court’s ruling.”
8 J.A. 168. The district court immediately queried “Mr. Scott, you are satisfied with that?” to
9 which Scott responded, “[y]es.” Id. The district court then asked both Scott and his attorney if
10 there was any legal reason he could not impose the sentence, and both answered in the negative.
11 Scott plainly indicated that he did not object to the full payment of restitution and that he would
12 rely on the district court’s ruling regarding the precise victims.
13 Moreover, while Scott claims that there could be no tactical reason not to object before
14 the district court, this is not true. Scott went to great lengths to assure the district court that he
15 was not shirking his duty to repay the money that he fraudulently obtained, likely in order to
16 appear more sympathetic to the sentencing judge. We conclude that Scott waived his right to
17 appeal the district court’s decision to order restitution and to name the claims administrators as
18 the victims.
19 Scott also contends that the district court abused its discretion by failing to consider his
20 ability to pay restitution in setting the restitution schedule. Scott is incorrect. When creating a
21 restitution payment schedule, the district court must consider the financial resources and other
22 assets of the defendant, the projected earnings and other income of the defendant, and any
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1 financial obligations of the defendant. 18 U.S.C. § 3664(f)(2). A district court, however, “need
2 not make detailed factual findings on each of the required factors so long as the court makes
3 some affirmative act or statement to demonstrate that it considered those factors.” United States
4 v. Catoggio, 326 F.3d 323, 328 (2d Cir. 2003) (internal quotation marks omitted). Here, the
5 district court explicitly stated that it had considered the § 3664 factors, and there is nothing in the
6 record contradicting that statement. Nor do we find the district court’s restitution payment
7 schedule, requiring Scott to pay 25 percent of his net disposable monthly income, to be an abuse
8 of discretion. See United States v. Harris, 302 F.3d 72, 75 (2d Cir. 2002) (per curiam).
9 We have reviewed Scott’s remaining arguments and conclude that they lack merit.
10 Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
11
12 FOR THE COURT:
13 CATHERINE O’HAGAN WOLFE, CLERK
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