United States v. Pirgousis

290 F. App'x 388
CourtCourt of Appeals for the Second Circuit
DecidedAugust 14, 2008
DocketNos. 06-5780-cr(L), 07-3298-cr(con)
StatusPublished

This text of 290 F. App'x 388 (United States v. Pirgousis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pirgousis, 290 F. App'x 388 (2d Cir. 2008).

Opinion

SUMMARY ORDER

The defendants William G. Brown and Vlad Goldenberg appeal from judgments of conviction and sentences after a jury trial for illegal conduct arising out of their participation in a “boiler room” stock operation on Staten Island. Brown was convicted of one count of securities-fraud conspiracy, five counts of substantive securities fraud, one count of money-laundering conspiracy, and nine counts of money laundering. The district court sentenced him to 180 months’ imprisonment, three years of supervised release, and $14,563,848.30 in restitution. Golden-berg was convicted of one count of securities-fraud conspiracy and five counts of substantive securities fraud. The district court sentenced him to 97 months’ imprisonment, three years of supervised release, and $2,972,840.14 in restitution. Both defendants appeal the verdicts and sentences. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.

I. William Brown

A. References to Guilty Pleas of Co-conspirators

Brown argues that his trial was rendered prejudicially unfair when the prosecutor made reference in his summation to the guilty pleas of several co-conspirators who testified against Brown at [390]*390trial. In particular, Brown complains of this statement, which came in over defendant’s objection: “Do you think [the cooperating witnesses] would have pleaded guilty to crimes with an aggregate possible ... sentence of ever [sic] a hundred years imprisonment if these were really good deals and there was no stock fraud? Of course not.” Despite overruling Brown’s objection to the prosecutor’s statement, the district court instructed the jury “to draw no inferences of any kind about the guilt of the defendants on trial from the fact that the prosecution witnesses pled guilty to similar or related charges.”

A defendant demanding a new trial based on remarks by a prosecutor at trial must demonstrate that “the misconduct alleged [is] so severe and significant as to result in the denial of [his] right to a fair trial.” United States v. Locascio, 6 F.3d 924, 945 (2d Cir.1993). “It is a rare case in which improper comments in a prosecutor’s summation are so prejudicial that a new trial is required.” United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir.1992) (internal quotation marks omitted). This is not such a case. “Determination of whether there should be a reversal requires an evaluation of the severity of the misconduct, the curative measures taken, and the certainty of conviction absent the misconduct.” United States v. Rosa, 17 F.3d 1531, 1549 (2d Cir.1994). Although the prosecutor’s statement was improper, United States v. Louis, 814 F.2d 852, 856 (2d Cir.1987), it was isolated, and the evidence against Brown was extremely strong. Moreover, the district court gave a clear and correct curative instruction. Cf. United States v. Ramirez, 973 F.2d 102, 105 (2d Cir.1992). When a district court gives such an instruction, we reverse only “where there is an overwhelming probability that the jury will be unable to follow the court’s instructions and the evidence is devastating to the defense.” United States v. Jones, 16 F.3d 487, 493 (2d Cir.1994). Again, this is not such a case. See United States v. Cruz, 797 F.2d 90, 93 n. 1 (2d Cir.1986) (affirming conviction when district court issued a curative instruction “directed specifically toward” a misstatement made in the prosecutor’s summation).

B. Reasonableness of the Sentence

Brown argues that the sentence of 180 months’ imprisonment imposed by the district court is substantively unreasonable, despite that it was a 55-month downward variance from the low end of the correctly calculated Guidelines range. The Supreme Court recently confirmed that the courts of appeals review all sentences for abuse of discretion, “whether inside or outside the Guidelines range.” Gall v. United States, — U.S. -, -, -, 128 S.Ct. 586, 594, 597, 169 L.Ed.2d 445 (2007). Because Brown alleges no procedural error, we need only “consider the substantive reasonableness of the sentence ... tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. at 597. While the “length of a sentence can exceed the bounds of ‘reasonableness,’ we anticipate encountering such circumstances infrequently.” United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005). When the sentence is within the Guidelines, the defendant bears a significant burden because the Sentencing Commission and the sentencing judge have agreed that the challenged sentence achieves the purposes of § 3553(a). See Rita v. United States, — U.S. -, ---, 127 S.Ct. 2456, 2465-67, 168 L.Ed.2d 203 (2007). In this case, the district court’s downward variance by almost six years suggests strongly that the sentence is not unreasonably long.

Brown also contends that his sentence must be reversed because Gary Todd, a co-conspirator whom Brown deems equally culpable, received only an 87-month sen[391]*391tence. We do not object to a “district court[’s] consideration of similarities and differences among codefendants when imposing a sentence,” but “§ 8553(a) does not require district courts to consider sentencing disparity among co-defendants.” United States v. Wills, 476 F.3d 103, 110 (2d Cir.2007) (internal quotation marks and citations omitted). Moreover, Brown and Todd were not similarly situated: (1) Todd pleaded guilty, entitling him to credit under the Guidelines for acceptance of responsibility; (2) Todd pleaded guilty only to one aspect of the scheme, while Brown was found guilty at trial of two conspiracy counts, five securities-fraud counts, and nine money-laundering counts; and (3) at the trial, evidence was admitted demonstrating Brown’s obstruction of justice related to the SEC investigation, exposing him to greater penalties. As such, the district court’s sentence was not substantively unreasonable, even when compared to Todd’s.

II. Vlad Goldenberg

A. Ineffective Assistance of Counsel

Goldenberg argues that he received ineffective assistance of counsel when his attorney made arguments in summation which opened the door to the government introducing incriminating statements Goldenberg had made at a proffer session prior to trial. Whatever the merits of Golden-berg’s claim, we see no reason to deviate from our “baseline aversion to resolving ineffectiveness claims on direct review.” United States v. Khedr, 343 F.3d 96

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Related

Massaro v. United States
538 U.S. 500 (Supreme Court, 2003)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Luis Cruz and Rogelio Chacon
797 F.2d 90 (Second Circuit, 1986)
United States v. George Kaithovalappil Louis
814 F.2d 852 (Second Circuit, 1987)
United States v. Rupert Gordon
987 F.2d 902 (Second Circuit, 1993)
United States v. Frank Locascio, and John Gotti
6 F.3d 924 (Second Circuit, 1993)
United States v. Clarence Jones
16 F.3d 487 (Second Circuit, 1994)
United States v. Rosa
17 F.3d 1531 (Second Circuit, 1994)
United States v. Enrique Carty
264 F.3d 191 (Second Circuit, 2001)
United States v. Sofwat Khedr, Abdullah Alhumoz
343 F.3d 96 (Second Circuit, 2003)
United States v. Fiore
381 F.3d 89 (Second Circuit, 2004)
United States v. Daniel Lee Fleming
397 F.3d 95 (Second Circuit, 2005)
United States v. Garcia
413 F.3d 201 (Second Circuit, 2005)
United States v. Rodriguez
968 F.2d 130 (Second Circuit, 1992)

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Bluebook (online)
290 F. App'x 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pirgousis-ca2-2008.