     13-2456
     United States v. Espada


                               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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 22nd day of June, two thousand fifteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               REENA RAGGI,
 8               GERARD E. LYNCH,
 9                     Circuit Judges.
10   _____________________________________
11
12   United States of America,
13                       Appellee,
14
15                      v.                                                       13-2456
16
17   Pedro Gautier Espada,
18                      Defendant,
19
20   Pedro Espada, Jr.,
21                     Defendant-Appellant.
22   _____________________________________
23
24    FOR APPELLEE:                 Catherine Mary Mirabile, Susan Corkery, Claire S. Kedeshian,
25                                  Assistant United States Attorneys, for Acting United States
26                                  Attorney Kelly T. Currie, Brooklyn, New York.
27
28   FOR APPELLANT:                 Pedro Espada, Jr., pro se, Fort Dix, New Jersey.
29
30          Appeal from a judgment of the United States District Court for the Eastern District of New
31   York (Block, J.).
32
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is AFFIRMED.

 3          Pedro Espada, Jr., pro se, appeals from a judgment of the United States District Court for

 4   the Eastern District of New York (Block, J.).

 5          Espada was convicted, after a jury trial, of four counts of embezzling money from the

 6   Soundview Healthcare Network, a not-for-profit institution that received federal funds, in

 7   violation of 18 U.S.C. § 666(a)(1)(A), and thereafter, pursuant to a plea agreement, entered a guilty

 8   plea, to one count of subscribing to false and fraudulent statements in a 2005 tax return, in

 9   violation of 26 U.S.C. § 7206(1). He was sentenced to concurrent terms of 60 months’

10   imprisonment on all counts, a term of three years’ supervised release, restitution, forfeiture, and a

11   special assessment.

12          Based on Espada’s waiver of appellate rights contained in his plea agreement, this Court

13   previously granted the government’s motion to dismiss Espada’s appeal of his conviction and term

14   of imprisonment. The Court ordered the appeal to proceed with respect to Espada’s challenges to

15   the denial of his motion for a new trial brought pursuant to Federal Rule of Criminal Procedure 33,

16   and to the non-imprisonment components of his sentence. See United States v. Espada, 13-2456,

17   Dkt. No. 180 (2d Cir. Dec. 4, 2014).

18          Espada argues that the district court erred in denying his motion for a new trial based on the

19   judge’s alleged ex parte communication with the jury and the jury’s alleged reliance on evidence

20   not admitted at trial. He further contends that the district judge should have recused himself from

21   deciding the new trial motion. Finally, he argues that the amount of the forfeiture money




                                                      2
 1   judgment entered against him should have been decided by the jury, rather than by the court. We

 2   assume the parties’ familiarity with the underlying facts and procedural history.

 3          As to Espada’s challenge to the denial of his Rule 33 motion: Espada alleges misconduct

 4   by the presiding judge and argues that the inquiry should not have been conducted by the judge

 5   himself. While it would ordinarily be better for such an inquiry to be conducted by another judge,

 6   our review of the record convinces us that denial of the motion was proper. Cf. United States v.

 7   Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (recognizing that “post-verdict inquiries may lead to

 8   evil consequences: subjecting juries to harassment, inhibiting jury room deliberation, burdening

 9   courts with meritless applications, increasing temptation for jury tampering and creating

10   uncertainty in jury verdicts,” but remanding for a hearing under the circumstances of that case).

11          Although the appeal waiver in Espada’s plea agreement does not prohibit him from

12   challenging the restitution and forfeiture components of his sentence, see United States v.

13   Oladimeji, 463 F.3d 152, 156-57 (2d Cir. 2006), he does not challenge the amount of restitution or

14   forfeiture imposed, and his procedural challenge to the imposition of those components of his

15   sentence is meritless.

16          Both forfeiture and restitution were statutorily required. See 18 U.S.C. §§ 981(a)(1)(D),

17   3663A. Without challenging the amounts of forfeiture and restitution, Espada argues that the

18   orders were “illegal” because the district court rather than the jury decided the issues. However,

19   Espada explicitly agreed in his plea agreement that the court would decide the forfeiture issue, and

20   implicitly agreed that the judge would determine restitution. In any event, we have held that the

21   rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply to forfeiture

22   orders because forfeiture statutes do not establish any statutory maxima and are not a determinate


                                                      3
 1   scheme. United States v. Fruchter, 411 F.3d 377, 381-83 (2d Cir. 2005). Espada’s reliance on

 2   Southern Union Co. v. United States, 132 S. Ct. 2344, 2350-51 (2012), is inapposite; Southern

 3   Union held that criminal fines are subject to Apprendi. The case did not consider criminal

 4   forfeiture. With respect to restitution, even if Espada had not implicitly agreed to have the district

 5   judge decide the matter, restitution orders pursuant to the Mandatory Victims Restitution Act, 18

 6   U.S.C. § 3663A, which are based on factual findings made by a judge rather than by a jury, are

 7   constitutional. United States v. Reifler, 446 F.3d 65, 118 (2d Cir. 2006). Accordingly, the

 8   non-imprisonment components of Espada’s sentence are affirmed.1

 9          We have considered all of Espada’s remaining arguments and find them to be without

10   merit. Accordingly, we AFFIRM.

11

12                                                  FOR THE COURT:
13                                                  Catherine O=Hagan Wolfe, Clerk




     1
       Espada has waived any challenge to his term of supervised release and special assessment by
     failing to mention those issues in his brief. See United States v. Greer, 285 F.3d 158, 170 (2d Cir.
     2002).

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