09-0350-cr
USA v. Schlesinger

                          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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 4th day of March, two thousand and ten.

PRESENT:

       JOSÉ A. CABRANES,
              Circuit Judge,*
       STEFAN R. UNDERHILL,
              District Judge.**

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UNITED STATES OF AMERICA ,

                       Appellee,

       v.                                                                     No. 09-0350-cr

NAT SCHLESINGER , also known as Naftule Schlesinger, also
known as Zvi Pollack,

                       Defendant-Appellant.



       *
          The Honorable Barrington D. Parker recused himself from participating in the decision of
this case, which is decided by the remaining members of the panel, who are in agreement.
       **
         The Honorable Stefan R. Underhill, of the United States District Court for the District of
Connecticut, sitting by designation.

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    FOR APPELLANT:                                       DIANA D. PARKER, New York, NY.

    FOR APPELLEE:                                        CHARLES ROSE , Assistant United States Attorney (Benton J.
                                                         Campbell, United States Attorney, and David C. James and
                                                         Richard T. Lunger, Assistant Untied States Attorneys, on the
                                                         brief), Office of the Untied States Attorney for the Eastern
                                                         District of New York, Brooklyn, NY.

            Appeal from a January 14, 2009 order of the United States District Court for the Eastern
    District of New York (Arthur D. Spatt, Judge).

         UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the order of the District Court is AFFIRMED.

           In 2006, appellant Nat Schlesinger stood trial in the United States District Court for the
    Eastern District of New York and was convicted by a jury of charges relating to two fraudulent
    schemes. The schemes involved a clothing manufacturing business started by Schlesinger and his
    brother.

            Following trial, Schlesinger made three motions for a new trial under Federal Rule of Criminal
    Procedure 33. The District Court denied each motion. The District Court then sentenced Schlesinger,
    Schlesinger appealed his conviction and sentence, and this Court affirmed. See United States v. Schlesinger,
    514 F.3d 277 (2d Cir. 2008); Untied States v. Schlesinger, 261 Fed. App’x 355 (2d Cir. 2008) (summary
    order).

            The District Court denied Schlesinger’s third and final Rule 33 motion on July 26, 2006. See
    United States v. Schlesinger, 439 F. Supp. 2d 255 (E.D.N.Y. 2006). Over two years later, on September 2,
    2008, Schlesinger filed a motion in the District Court seeking (1) the recusal of the District Court judge
    and (2) reconsideration of the District Court’s denial of his third Rule 33 motion. The motion for
    reconsideration asserted that Schlesinger had new evidence that Bradley Lanes, one of the
    government’s witnesses at trial, had committed perjury when he testified as follows:

1                  Q          Did you enter into a cooperation agreement with the government?
2                  A          Yes, I did.
3                  Q          Mr. Lanes, I will show you what has been marked Government’s
4                             Exhibit 500-BL-24 for identification.
5                             Mr. Lanes, please identify that document.
6                  A          That is . . . a plea agreement between myself and the U.S.
7                             Department of Justice.

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1               Q       Does that plea agreement still exist?
2               A       No, it doesn’t.
3               Q       Has the government told you that you’ve broken that plea
4                       agreement, or that cooperation agreement, rather?
5               A       Yes, they have.

    Gov’t App. 107 (Trial Tr. 420-21). Schlesinger concedes that Lanes testified truthfully that he did not
    have a cooperation agreement with the government, but Schlesinger contends that Lanes committed
    perjury by testifying that he did not have a plea agreement with the government.

            The new evidence in support of Schlesinger’s Rule 33 motion consisted, in part, of a letter
    submitted by the government in opposition to Lanes’s application for a stay of his sentence pending an
    appeal of his conviction. In the letter the government argued that because Lanes had “entered into a plea
    agreement with the government and was sentenced pursuant to the terms of that agreement,” the government “kn[ew]
    of no appellate issues appropriate for review.” Joint App. 61 (emphasis added). That statement, made
    by an Assistant United States Attorney other than the trial counsel nearly eighteen months after Lanes’s
    testimony, is the principal new evidence that Schlesinger relies upon to argue that Lanes committed
    perjury—and the government knew he committed perjury—when he testified about his plea and
    cooperation agreement with the government.

            The District Court denied Schlesinger’s motion for recusal and reconsideration concluding,
    among other things, that Schlesinger’s purported “new evidence” did not “lead the Court to believe
    that Lanes was testifying pursuant to any written or oral agreement with the Government.” Joint App.
    116. Schlesinger now appeals the District Court’s order denying his motion. We assume the parties’
    familiarity with the underlying facts, the procedural history of this case, and the issues raised on appeal.

           First, we affirm the District Court’s determination that recusal was unwarranted. There is
    absolutely nothing in the record to suggest that the “impartiality” of the District Court judge “might
    reasonably be questioned.” See 28 U.S.C. § 455(a).

             Second, we affirm the District Court’s denial of Schlesinger’s motion for reconsideration. We
    agree with the District Court that Lanes did not testify at Schlesinger’s trial pursuant to a “cooperation
    agreement.” Even assuming that Lanes’s plea agreement survived the government’s notice of his
    breach of that agreement, there is nothing in the record to suggest that Lanes believed his plea
    agreement was still in effect at the time of his trial testimony. Even if he had, his single statement
    about his plea agreement was not material. Thus, we reject Schlesinger’s claim that Lanes committed
    perjury.



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       Lanes entered into a plea agreement with the government and pleaded guilty pursuant to that
agreement. Lanes took on a number of obligations under the agreement, including to cooperate with
the government’s investigation and to testify truthfully when called by the government as a witness. If
Lanes met his obligations, the government agreed to seek a departure from the United States
Sentencing Guidelines (“U.S.S.G.”) on the basis of Lanes’s “substantial assistance.” See U.S.S.G.
§ 5K1.1.

        As it happened, Lanes breeched his agreement with the government by being arrested for—and
pleading nolo contendere to—charges related to cocaine possession and evidence tampering in Florida.
After Lanes’s arrest, the government sent Lanes’s attorney a letter informing him that the government
considered Lanes in breach of his agreement and, “as a result[,] . . . would not be submitting a letter at
his sentencing pursuant to section 5K1.1 of the U.S. Sentencing Guidelines.” Gov’t App. 54-55.

         All of this was accurately conveyed to the jury at Schlesinger’s trial. Lanes told the jury that
although he had entered into a “cooperation agreement” with the government, id. at 107 (Trial Tr.
420), he had breached the agreement by pleading nolo contendere to charges of cocaine possession and
evidence tampering in Florida, id. at 108 (Trial Tr. 423-24). Moreover, the jury was read the
government’s letter to Lanes’s counsel explaining that the government would no longer submit a 5K1.1
letter on Lanes’s behalf, and Lanes explained to the jury that the government had made no promises to
Lanes in exchange for his testimony. Id. (Trial Tr. 423-25).

        Schlesinger’s argument that Lanes committed perjury conflates the concept of a “plea
agreement” with the concept of a “cooperation agreement.” Lanes entered into an agreement that
contained, essentially, two parts. The first part was the “plea agreement,” which, among other things,
called for Lanes to plead guilty to certain crimes. The second part was the “cooperation agreement,”
which called for Lanes’s cooperation in return for a 5K1.1 letter.

        It is clear that, with one exception that was immediately corrected by the prosecutor, see Gov’t
App. 107 (Trial Tr. 421), Lanes’s testimony at trial about his “agreement” with the government was
concerned exclusively with his cooperation agreement—that is, the government’s promise to submit a
5K1.1 letter in exchange for Lanes’s testimony. Lanes accurately conveyed to the jury that his
cooperation agreement had been terminated and that he could no longer hope to receive a 5K1.1 letter
(nor did the government, in fact, submit a 5K1.1 letter at Lanes’s sentencing or re-sentencing). The
fact that Lanes was still bound by his guilty plea—that is, his plea agreement—does not make Lanes’s
testimony perjury. Cf. United States v. Gregory, 245 F.3d 160, 165 (2d Cir. 2001) (holding that a criminal
defendant was bound by his guilty plea even though he had breached his cooperation agreement and
the government had declined to submit a 5K1.1 letter).



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         We have considered Schlesinger’s remaining arguments on appeal and find them to be without
merit.

                                          CONCLUSION

         For the foregoing reasons, the January 14, 2009 order of the District Court is AFFIRMED.




                                              FOR THE COURT,

                                              Catherine O’Hagan Wolfe, Clerk of Court




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