14-3377-cr
United States v. Reisman

                                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.

       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 21st day of November, two thousand sixteen.

PRESENT:            JOSÉ A. CABRANES,
                    ROSEMARY S. POOLER,
                                 Circuit Judges,
                    JOHN G. KOELTL,*
                                 District Judge.


UNITED STATES OF AMERICA,

                           Appellee,                        14-3377-cr

                           v.

HARRY K. KAHALE, HAROLD RICHARD GRAHAM,
AND GREGORY C. SCARLATO,

                           Defendants,

MITCHELL REISMAN,

                           Defendant-Appellant.




     *
    Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.

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FOR PLAINTIFF-APPELLANT:                                     Amy Busa (Tanya Y. Hill, on the brief),
                                                             Assistant United States Attorneys, for
                                                             Robert L. Capers, United States Attorney
                                                             for the Eastern District of New York,
                                                             Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                     Mitchell Reisman, pro se, Mt. Laurel, NJ.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Kiyo A. Matsumoto, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED and Appellant’s motion to submit additional exhibits on appeal is DENIED.

        Appellant Mitchell Reisman, proceeding pro se, appeals from the District Court’s order
denying his petition for a writ of error coram nobis, in which he challenged an order of restitution that
was imposed as a part of his sentence following his 2010 conviction for mail and wire fraud. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

          We review the denial of a writ of error coram nobis for abuse of discretion, but conduct a de
novo review with respect to whether the district court applied the proper legal standard. United States
v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000). “To obtain coram nobis relief, the petitioner ‘must
demonstrate 1) there are circumstances compelling such action to achieve justice, 2) sound reasons
exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal
consequences from his conviction that may be remedied by granting of the writ.’” Id. (quoting
Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998)). Coram nobis is not a substitute for appeal and
relief is strictly limited to those cases in which fundamental errors have rendered the prior
proceeding invalid. Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996). It “is an ‘extraordinary
remedy’ available only in rare cases.” Kovacs v. United States, 744 F.3d 44, 54 (2d Cir. 2014) (quoting
United States v. Morgan, 346 U.S. 502, 511 (1954)).

        Here, the District Court applied the proper legal standard and acted well within its discretion
in determining that there were no circumstances warranting coram nobis relief. Reisman was convicted
of wire and mail fraud that resulted in pecuniary loss, mandating restitution under the Mandatory
Victims Restitution Act (“MVRA”). See 18 U.S.C. § 3663A(c)(1)(A). The MVRA “requires the
sentencing court to impose restitution . . . without consideration of the economic circumstances of
the defendant.” See United States v. Catoggio, 326 F.3d 323, 326 (2d Cir. 2003) (internal quotation
marks omitted). That Reisman could not afford to pay restitution in full is thus not even relevant to
the ordering of restitution under the MVRA, let alone some kind of “fundamental” error that
“rendered the proceeding itself irregular and invalid.” Foont, 93 F.3d at 78 (internal quotation marks

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omitted). Moreover, Reisman has identified no reason for his failure to challenge the restitution
order in his prior direct appeal. See United States v. Graham, 477 F. App’x 818 (2d Cir. 2012) (summary
order) (rejecting Reisman’s challenges to his conviction). Finally, we have already rejected, on direct
appeal, Reisman’s challenge to the sufficiency of the evidence supporting his conviction, id. at 824-
25, and Reisman’s reiteration of that challenge here fares no better.

                                          CONCLUSION

        We have considered all of Reisman’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the order of the District Court and DENY Reisman’s motion to
submit additional exhibits on appeal.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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