18-2059(L)
United States v. Atias


                                  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 TO 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 1st day of April, two thousand twenty.

PRESENT:
           RICHARD C. WESLEY,
           SUSAN L. CARNEY,
           STEVEN J. MENASHI,
                       Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                    Appellee,

                            v.                                   Nos. 18-2059, 18-2269

JOSEPH ATIAS, SOFIA ATIAS,

                   Defendants-Appellants,

NICHOLAS A. PELLEGRINI, PAULA BERCKOFF,

          Defendants.
_________________________________________

FOR DEFENDANTS-APPELLANTS:                         JAMESA J. DRAKE, Drake Law, LLC,
                                                   Auburn, ME (for Joseph Atias); KATE E.
                                                   OLIVIERI (Marc L. Mukasey, on the brief),
                                                   Mukasey Frenchman & Sklaroff, New
                                                   York, NY (for Sofia Atias).

FOR APPELLEE:                                      BURTON RYAN (David C. James, Charles
                                                   P. Kelly, on the brief), Assistant United
                                                   States Attorneys for Richard P. Donoghue,
                                                   United States Attorney for the Eastern
                                                   District of New York, Brooklyn, NY.

       Appeal from judgments of the United States District Court for the Eastern District of
New York (Hurley, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments entered on July 26, 2018, are
AFFIRMED.

       Joseph Atias and Sofia Atias (the “Atiases”) appeal from the District Court’s
judgments of conviction entered against them after a jury trial. In March 2017, a jury found
each of the Atiases (a married couple) guilty of bank fraud and conspiracy to commit bank
fraud in violation of 18 U.S.C. §§ 1344 and 1349 and theft of government funds in violation
of 18 U.S.C. § 641. In December 2017, the District Court denied the Atiases’ respective
motions for a judgment of acquittal and a new trial. United States v. Atias, No. 14-CR-0403,
2017 WL 6459477 (E.D.N.Y. Dec. 18, 2017). As relevant here, the District Court judgments
imposed joint forfeiture obligations on the Atiases in the amount of $465,965.09, and
restitution obligations in the amounts of $539,773.67 (payable to Bank of America) and
$49,956.82 (payable to the New York Medicaid Fraud Control Unit). These appeals, now
consolidated, followed.

       We assume the parties’ familiarity with the underlying facts, procedural history, and
arguments on appeal, to which we refer only as necessary to explain our decision to affirm
the District Court’s judgments.

   1. Proposed Testimony by Zarate

       On appeal, the Atiases first argue that the District Court committed reversible error
in allowing witness Carlos Zarate to invoke the Fifth Amendment and on that basis to


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decline to provide testimony the Atiases sought from him. Zarate, along with attorney
Nicholas Pellegrini, helped the Atiases effect the transactions underlying the Atiases’ bank
fraud and conspiracy charges, a fraudulent short sale of their residential property located at
83 Cathedral Avenue in Hempstead, New York. The testimony the Atiases sought
concerned work that Zarate conducted with Pellegrini on transactions and proposed
transactions other than the 83 Cathedral Avenue short sale. The District Court excluded this
evidence under Federal Rule of Evidence 403, ruling that the probative value of having
Zarate testify to his history with Pellegrini was substantially outweighed by concerns that the
testimony would have been a “wast[e] [of] time” and present “needless[] . . . cumulative
evidence.” Fed. R. Evid. 403. We review the District Court’s evidentiary decisions for abuse
of discretion. See United States v. Gupta, 747 F.3d 111, 132 (2d Cir. 2014).

        We perceive no such abuse here. The District Court reasonably concluded that
introduction of any such testimony would produce collateral factual disputes about
transactions other than the 83 Cathedral Avenue transactions, wasting time. Rejecting the
Atiases’ proffered reason for seeking such testimony—to impeach Pellegrini—the District
Court correctly pointed out that Pellegrini had already been substantially impeached on
cross-examination, rendering the desired additional testimony no more than cumulative.

        On appeal, the Atiases also assert that Zarate’s testimony as to other similar frauds
would have buttressed the Atiases’ defense that they were his victim, not co-perpetrators of
the fraud. It would have demonstrated, they now say, that Pellegrini regularly duped
homeowners. The Atiases did not adequately present this rationale to the District Court,
however, and have developed it beyond an implication only on appeal. Therefore, we cannot
say that the District Court’s exclusion of the testimony exceeded the permissible bounds of
its discretion. 1

    2. Missing Witness Instruction for Zarate



1The Atiases also challenge the District Court’s ruling that Zarate was entitled to invoke the Fifth
Amendment. Because we affirm the court’s exclusion of the evidence on Rule 403 grounds, we do
not address the alternative Fifth Amendment rationale further.


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       The Atiases contend next that the District Court erred by failing to give a missing
witness instruction, as they requested at trial. The charge was called for with respect to
Zarate, they assert, because Zarate became a “missing” witness when the government chose
not to immunize him, thereby entitling him to invoke his Fifth Amendment privilege with
respect to unrelated transactions but alleged to be similar to the Atiases’ short sale. We
review a district court’s decision to deny a missing witness charge for abuse of discretion. See
United States v. Nichols, 912 F.2d 598, 601 (2d Cir. 1990).

       Zarate made himself available to both the prosecution and the defense to testify
about the 83 Cathedral Avenue transactions. As discussed above, the District Court
reasonably excluded Zarate’s testimony regarding transactions other than the 83 Cathedral
Avenue short sale under Rule 403. Because we have concluded that the District Court did
not abuse its discretion by excluding the proposed testimony on grounds other than Zarate’s
invocation of the Fifth Amendment, the question whether the District Court should have
provided a missing witness instruction is moot.

   3. Conscious Avoidance Instruction

       The Atiases next charge error in the District Court’s instructions to the jury as to
conscious avoidance. The bank fraud statute under which the Atiases were indicted requires
that a defendant “knowingly execute[], or attempt[] to execute, a scheme or artifice . . . to
defraud a financial institution.” 18 U.S.C. § 1344. A conscious avoidance instruction tells
jurors that they may infer such knowledge from proof that a defendant consciously avoided
learning of the fraudulent nature of a transaction. Our precedent describes the circumstances
in which such an instruction is appropriate as follows:

       [A] conscious avoidance instruction may be given only (i) when a defendant
       asserts the lack of some specific aspect of knowledge required for conviction,
       and (ii) the appropriate factual predicate for the charge exists, i.e., the evidence
       is such that a rational juror may reach the conclusion beyond a reasonable doubt
       that the defendant was aware of a high probability of the fact in dispute and
       consciously avoided confirming that fact.

United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) (internal quotation marks and
citations omitted). Regarding requirement (ii), the evidentiary basis for the instruction, we

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have ruled that “[a] factual predicate may be established where a defendant’s involvement in
the criminal offense may have been so overwhelmingly suspicious that the defendant’s
failure to question the suspicious circumstances establishes the defendant’s purposeful
contrivance to avoid guilty knowledge.” United States v. Lange, 834 F.3d 58, 78 (2d Cir. 2016)
(internal quotation marks and brackets omitted). The Atiases argue that no such factual
predicate was present in their case.
       When considering a “challenge to the sufficiency of the evidence to support a
conscious avoidance conviction,” we “review all the evidence presented at trial in the light
most favorable to the government, crediting every inference that the jury might have drawn
in favor of the government.” Aina-Marshall, 336 F.3d at 171 (internal quotation marks
omitted).
       The record here, understood in this light, readily provides the requisite factual
predicate. The evidence shows that the Atiases knew that Sacred Heart Academy’s purchase
offer exceeded the mortgage balance; nevertheless, defendants prevailed upon Bank of
America to approve a non-arms-length short sale to a shell company controlled by them, and
then sold the property to the school through the shell company at a large profit. This
evidence easily meets the “overwhelmingly suspicious” standard that we articulated in Lange.

   4. Limitation on Sofia’s Testimony

       Next, the Atiases submit that the District Court’s judgment cannot stand because the
court wrongly precluded Sofia from testifying at trial regarding her understanding of the legal
advice they received. In particular, she sought to recount what Joseph relayed to her about
counsel’s advice to him about the permissibility of the transactions.

       Without deciding whether the District Court’s ruling on this testimonial question was
erroneous, we instead turn directly to considering whether, if error, the error was harmless.
When conducting a harmless error review, “we ask whether we can conclude with fair
assurance that the errors did not substantially influence the jury.” United States v. Oluwanisola,
605 F.3d 124, 133 (2d Cir. 2010) (internal quotation marks omitted).




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       After review, we comfortably conclude that any such error did not “substantially
influence the jury.” Id. This conclusion is not difficult because, despite the District Court’s
specific evidentiary ruling, Sofia did, in fact, testify to what Joseph had relayed to her about
the attorneys’ advice. See App’x 1275–79. In addition, Sofia fails on appeal to describe with
particularity any additional testimony that she would have given but for the ruling and that,
in her view, would have substantially influenced the jury in her favor. Therefore, we decide
that, even if erroneous, this error was harmless as to Sofia.

       For the same reasons, we also conclude that the curtailment of Sofia’s testimony was
harmless as to Joseph. Joseph gave a robust account of the advice the attorneys gave him
and his account was fortified by what Sofia actually testified. The potential impact on him of
the charged evidentiary error was even more marginal than it was on Sofia. In both cases,
therefore, we have “fair assurance” that the error did not “substantially influence” the jury’s
decision.

   5. Sufficiency of the Evidence on Theft of Government Funds

       The Atiases also appeal the District Court’s denial of their Rule 29 motions for
judgment of acquittal on the charges of theft of government funds in violation of 18 U.S.C.
§ 641. They argue that the government was required to prove that they were ineligible to
receive Medicaid benefits for at least one month that they received benefits in order to
establish violations of section 641. “[W]e will uphold the judgments of conviction if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation
marks omitted).

       At trial, the jury heard that the Atiases would have been ineligible to receive Medicaid
benefits in any month in which they earned more than $3,000 in income. App’x 278–79. The
government produced evidence of several streams of income that exceeded that threshold:
certain corporate payments covering the Atiases’ personal expenses; an inheritance; the
receipt of the proceeds of the 83 Cathedral Avenue transactions; and access to a credit card
for $50,000 to cover personal expenses. Nevertheless, the Atiases argue that Medicaid



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eligibility is based only on “available” income and that the government failed to account for
deductions to those income streams and to prove “available” income exceeding $3,000 in
any particular month.

       We conclude that a rational juror could have found that the Atiases received more
than $3,000 in available income in a month they received Medicaid benefits based, at least,
on evidence showing they had access to a credit card for $50,000 to cover personal expenses.
The jury saw an affidavit in which Joseph swore that he had received access to the “credit
card to use for . . . personal expenses, which [he] did for about $50,000.” Gov’t App’x 196.
The jury also heard expert testimony, which it was entitled to credit, that access to the credit
card would have “disqualified [the Atiases] . . . from Medicaid for . . . three months in 2010.”
App’x 379. Finally, the jury heard testimony from both sides’ experts about the different
types of deductions, App’x 350–52, 1804–06, including testimony in which the Atiases’
expert identified potential deductions from the $50,000. App’x 1863–65. This evidence was
sufficient for the jury to find the essential element of conviction.

   6. Calculation of Restitution

       In their final challenge, the Atiases urge that the District Court miscalculated the
amount of the restitution obligation that it imposed with regard to the New York Medicaid
Fraud Unit under the Mandatory Victims Restitution Act (“MVRA”). See 18 U.S.C. § 3663A.
From 2009 to 2014, the Atiases applied for and received Medicaid benefits from New York
State despite their receipt during those years of income far exceeding the approximately
$3,000 per month limit for their Medicaid eligibility. The District Court ordered payment in
the amount of $49,956.82. In calculating this amount, the Atiases assert, the District Court
incorrectly included the value of Medicaid benefits provided during the relevant period to
the five children born of Sofia’s first marriage, to Jacques Amsellem (the “Amsellem
children”), combining those benefits with amounts paid on behalf of the three issue of the
Atias marriage (the “Atias children”).
       The MVRA provides that “[a]ny dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance of the evidence.” 18 U.S.C.



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§ 3664(e). We review the District Court’s calculation for abuse of discretion. See United States
v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006).
       We perceive no abuse here. Medicaid expert Heather Griffin testified for the
government at a post-trial restitution hearing that both Sofia Atias and Jacques Amsellem
listed the five Amsellem children on their applications for Medicaid benefits, but that the
Amsellem children received benefits under Jacques Amsellem’s case number. Griffin
explained at trial, however, that the Atias family’s income bore on New York’s determination
of the Medicaid eligibility of the five Amsellem children, whom it considered a part of the
Atias account:
       [The Amsellem children are] active on the father’s [Jacques Amsellem’s] file, but
       they are considered as part of the [Atias] household account. In other words,
       Medicaid is compared to different levels based on how close ties to they are part
       of [sic] the Atias family’s budget you referred to. So a family of ten.

App’x 298. Thus, this evidence suggests that the five Amsellem children were counted as part
of the Atias family and the Atias family income (which was misreported) contributed to the
calculation of the erroneous Medicaid payments made to the Amsellem children. Given this
evidence, we cannot say that the District Court committed clear error or otherwise abused its
discretion in ordering that the Atiases make restitution in a dollar amount that includes the
Medicaid benefits received by the Amsellem children.
                                        *        *      *

       We have considered all of the Atiases’ remaining arguments and conclude that they
are without merit. The District Court’s judgment is AFFIRMED.

                                                     FOR THE COURT:

                                                     Catherine O’Hagan Wolfe, Clerk of Court




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