United States v. Rabinowitz

13-3485(L)
United States v. Rabinowitz, et al.
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of April, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 Circuit Judges,
9
10 DENISE L. COTE,*
11 District Judge.
12
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14 UNITED STATES OF AMERICA,
15 Appellee,
16
17
18 -v.- 13-3485
19 13-3726
20
21 AARON RABINOWITZ, MATTHEW BURSTEIN,
22 Defendants-Appellants
23
*
The Honorable Denise L. Cote, United States
District Court for the Southern District of New York,
sitting by designation.
1
1 RONALDO E. ROLDAN, HUGO LEIVA,
2 MATTHEW VENEZIO, ELIAS COMPRES, JOHN
3 CONSTANTANIDES,
4 Defendants.
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6
7 FOR APPELLANTS: ANDREW H. FREIFELD, Law Office
8 of Andrew H. Freifeld, New York,
9 New York, for Defendant-
10 Appellant Matthew Burstein.
11
12 BRIAN P. COMERFORD, Federal
13 Public Defender’s Office,
14 Western District of New York,
15 Buffalo, New York, for
16 Defendant-Appellant Aaron
17 Rabinowitz
18
19 FOR APPELLEE: MATTHEW S. AMATRUDA (with Amy
20 Busa, Robert T. Polemeni, and
21 Alexander A. Solomon, on the
22 brief) Assistant United States
23 Attorneys, for Robert L. Capers,
24 United States Attorney for the
25 Eastern District of New York,
26 Brooklyn, New York.
27
28 Appeal from a judgment of the United States District
29 Court for the Eastern District of New York (Ross, J.).
30
31 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
32 AND DECREED that the judgment of the district court be
33 AFFIRMED.
34
35 Defendants-appellants Aaron Rabinowitz and Matthew
36 Burstein appeal from judgments entered on September 9, 2013
37 in the United States District Court for the Eastern District
38 of New York (Ross, J.), convicting them, after a jury trial,
39 of conspiracy to commit wire fraud and bank fraud, in
40 violation of 18 U.S.C. § 1349, seven counts of bank fraud,
41 in violation of 18 U.S.C. § 1344, and two counts of wire
42 fraud, in violation of 18 U.S.C. § 1343. Rabinowitz and
43 Burstein were both sentenced to 27 months of imprisonment.
44 We assume the parties’ familiarity with the underlying
45 facts, the procedural history, and the issues presented for
46 review.
2
1 Rabinowitz and Burstein argue that they were entitled
2 to certain Internal Revenue Service tax transcripts to
3 impeach cooperating witness Barbara Armas, that the
4 transcripts prove that Armas committed perjury about seeking
5 extensions to file her tax returns, and that the district
6 court erroneously denied a new trial premised on these
7 arguments.
8
9 Defendants also assert that the district court erred in
10 denying their motion to dismiss the indictment based on
11 allegations of outrageous government misconduct by a former
12 case agent involved in the investigation. They further
13 fault the district court for failing to hold a hearing to
14 address this misconduct claim.
15
16 1. “[T]he Government’s failure to disclose evidence
17 that is materially favorable to the defense violates due
18 process.” United States v. Rivas, 377 F.3d 195, 199 (2d
19 Cir. 2004) (citing Brady v. Maryland, 373 U.S. 83, 87
20 (1963)). Brady’s scope includes impeachment evidence if it
21 has “the potential to alter the jury’s assessment of the
22 credibility of a significant prosecution witness.” Rivas,
23 377 F.3d at 199. “Undisclosed impeachment evidence is not
24 material in the Brady sense when, although possibly useful
25 to the defense, it is not likely to have changed the
26 verdict.” United States v. Avellino, 136 F.3d 249, 257 (2d
27 Cir. 1998) (internal quotation marks omitted).
28
29 Defendants argue that the withholding of evidence
30 warrants a new trial; however, the evidence was not
31 material. There was no reasonable likelihood that any false
32 testimony about extension requests would have affected the
33 verdict.
34
35 The tax transcripts were of only incremental value.
36 The defense extensively questioned Armas on her
37 participation in the mortgage fraud, her post-guilty plea
38 misconduct, her cooperation agreement with the government,
39 her failure to file tax returns, and the continuing benefits
40 she derived from the properties she obtained through her
41 mortgage fraud, among other misconduct.
42
43 As the district court found, proof that she may not
44 have sought an extension to file her taxes was merely
45 additional impeachment evidence, and any unavailability of
46 the material to the defense did not require a new trial.
47
3
1 Further supporting the rejection of defendants’ Brady /
2 Giglio challenge is the extensive record evidence
3 corroborating Armas’s testimony and independently
4 implicating defendants in the crimes of conviction. Such
5 independent evidence of guilt “increases the degree of
6 significance that would need to be ascribed to the withheld
7 impeachment evidence in order for it reasonably to undermine
8 confidence in the verdict.” United States v. Orena, 145
9 F.3d 551, 559 (2d Cir. 1998); accord Leka v. Portuondo, 257
10 F.3d 89, 104 (2d Cir. 2001); see also Avellino, 136 F.3d at11 256-57.
12
13 2. This Court reviews de novo the legal question
14 whether to dismiss an indictment based on outrageous
15 government misconduct. See United States v. Cuervelo, 949
16 F.2d 559, 567 (2d Cir. 1991). To establish a due process
17 violation on this ground, “a defendant must show that the
18 government’s conduct is ‘so outrageous that common notions
19 of fairness and decency would be offended were judicial
20 processes invoked to obtain a conviction.’” United States
21 v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (quoting
22 United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997)).
23 “[T]he sanction is so drastic that, especially where serious
24 criminal conduct is involved, it must be reserved for the
25 truly extreme cases.” United States v. Broward, 594 F.2d
26 345, 351 (2d Cir. 1979).
27
28 In Cuervelo,, this Court considered whether a hearing
29 was required to determine whether a government agent’s
30 sexual relationship with a defendant violated due process:
31
32 [A]t a minimum, the defendant must show: (1) that the
33 government consciously set out to use sex as a weapon
34 in its investigatory arsenal, or acquiesced in such
35 conduct for its own purposes upon learning that such a
36 relationship existed; (2) that the government agent
37 initiated a sexual relationship, or allowed it to
38 continue to exist, to achieve governmental ends; and
39 (3) that the sexual relationship took place during or
40 close to the period covered by the indictment and was
41 entwined with the events charged therein.
42
43 949 F.2d at 567. Here, the government agent had a sexual
44 relationship with a confidential witness. The agent’s
4
1 involvement did not impact the defendants’ prosecution to
2 any significant degree.1
3
4 Nothing about the agent’s conduct in this case
5 implicates the factors identified in Cuervelo: sex was not
6 used as a weapon, was not acquiesced in by the Government,
7 was not conducted to achieve governmental ends, and it did
8 not take place during or close to the period covered by the
9 indictment. In short, the conduct fails to rise to the
10 level of being “so outrageous that common notions of
11 fairness and decency would be offended were judicial
12 processes invoked to obtain such a conviction.” Al Kassar,
13 660 F.3d at 121. Accordingly, no hearing to further develop
14 the facts was necessary. See United States v. LaPorta, 46
15 F.3d 152, 160 (2d Cir. 1994) ("Nothing in Cuervelo requires
16 a district court to conduct a hearing every time a defendant
17 alleges outrageous government misconduct.”).
18
19 For the foregoing reasons, and finding no merit in
20 defendants’ other arguments, we hereby AFFIRM the judgment
21 of the district court.
22
23 FOR THE COURT:
24 CATHERINE O’HAGAN WOLFE, CLERK
25
26
1
Prior to trial, the Government identified the
reports relevant to this case that were prepared by the
agent. To avoid the need to call the agent as a trial
witness, the Government agreed to stipulate to the contents
of the reports in instances where a trial witness gave
inconsistent testimony. A dispute over such a discrepancy
never arose at trial.
5