     09-3821-cr
     USA v. Bell (Brumer)



                            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               Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl               Street, in the City of
 4       New York, on the 5 th day of January,              two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee,
16
17                    -v.-                                               09-3821-cr
18
19       BETTY BRUMER,
20
21                    Interested-Party-Appellant,
22
23       MICHAEL BRUMER,
24
25                Defendant.
26       - - - - - - - - - - - - - - - - - - - -X
27

                                                  1
 1   FOR APPELLANT:    Betty Brumer (pro se)
 2                     Great Neck, NY 11024
 3
 4   FOR APPELLEES:    Robin W. Morey
 5                     US Attorney’s Office, SDNY
 6                     New York, NY 10007
 7
 8        Appeal from an order of the United States District
 9   Court for the Southern District of New York (Wood, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the district court’s order is AFFIRMED.
13
14        Appellant Betty Brumer, appearing pro se, appeals from
15   the district court’s denial of her motion to exonerate the
16   $25,000 bail bond she executed on behalf of her husband,
17   defendant Michael Brumer. We assume the parties’
18   familiarity with the underlying facts, the procedural
19   history, and the issues presented for review.
20
21        We review de novo a district court’s legal conclusion
22   that a conveyance is fraudulent under New York State law.
23   United States v. Coppola, 85 F.3d 1015, 1019 (2d Cir. 1996).
24   We review a district court’s factual findings underpinning
25   this legal determination for clear error. Id.
26
27        “On motion of the United States attorney, the court
28   shall order any money belonging to and deposited by or on
29   behalf of the defendant with the court for the purposes of a
30   criminal appearance bail bond (trial or appeal) to be held
31   and paid over to the United States attorney to be applied to
32   the payment of any assessment, fine, restitution, or penalty
33   imposed upon the defendant.” 28 U.S.C. § 2044. “[A]n order
34   of restitution...is a lien in favor of the United States on
35   all property and rights to property of the person fined as
36   if the liability of the person fined were a liability for a
37   tax assessed under the Internal Revenue Code....” 18 U.S.C.
38   § 3613(c).
39
40        State law governs whether a conveyance is fraudulent
41   for purposes of federal tax liens. Aquilino v. United
42   States, 363 U.S. 509, 512-513 (1960) (“[S]tate law controls
43   in determining the nature of the legal interest which the
44   taxpayer ha[s] in the property [sought by the government].”
45   (ellipsis and internal quotation marks omitted)).
46


                                  2
 1        Under New York law, “[e]very conveyance made and every
 2   obligation incurred with actual intent, as distinguished
 3   from intent presumed in law, to hinder, delay, or defraud
 4   either present or future creditors, is fraudulent as to both
 5   present and future creditors.” N.Y. Debt. & Cred. Law
 6   § 276. “[A]ctual intent to defraud consists of deception
 7   intentionally practiced to frustrate the legal rights of
 8   another.” S. Indus., Inc. v. Jeremias, 411 N.Y.S.2d 945,
 9   948 (App. Div. 2d Dep’t 1978).
10
11        The district court did not clearly err in its factual
12   finding that Mr. Brumer purchased his marital home with
13   proceeds from his fraud against the government or its
14   finding that he conveyed this house to Mrs. Brumer in order
15   to deceive the federal government and frustrate its legal
16   rights. As a result, the district court correctly concluded
17   that this conveyance was fraudulent and that the proceeds
18   from it--which were used by Mrs. Brumer to secure the
19   $25,000 bail bond for Mr. Brumer--are subject to Mr.
20   Brumer’s restitution order.
21
22        We hereby AFFIRM the district court’s order denying
23   Mrs. Brumer’s motion to exonerate the $25,000 bail bond she
24   executed on behalf of Michael Brumer and instructing the
25   Clerk of the Court to apply this $25,000 to Michael Brumer’s
26   outstanding restitution and special assessment order.
27
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




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