16-264-cr (L)
United States v. McFadden, Brown, & Germany
                     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 1st day of May, two thousand seventeen.

Present:
             PETER W. HALL,
             GERARD E. LYNCH,
             CHRISTOPHER F. DRONEY,
                       Circuit Judges.


UNITED STATES OF AMERICA,



             v.                                                  16-264-cr (L)
                                                                 16-269-cr (Con)
                                                                 16-760-cr (Con)

SHAWNN MCFADDEN, ALLAH BROWN,          AND   AHMAD
JAMAL GERMANY,

                   Defendants-Appellants,


For Appellee:             MARK MISOREK (Charles P. Kelly, Emily Berger, on the
                          brief), Assistant United States Attorneys, for Bridget M.
                          Rohde, Acting United States Attorney for the Eastern
                          District of New York, Brooklyn, New York.



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United States v. McFadden, Brown, & Germany
For Appellants:           SUSAN C. WOLFE, New York, New York, for Defendant-
                          Appellant Shawnn McFadden.

                          DONNA R. NEWMAN (Clara Kalhous, on the brief), New
                          York, New York, for Defendant-Appellant Allah Brown.

                          LEONARD LATO, Hauppauge, New York, for Defendant-
                          Appellant Ahmad Jamal Germany.


      Appeal from a judgment of the United States District Court for the Eastern

District of New York (Hurley, J.).

      UPON        DUE   CONSIDERATION,           IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Defendants-Appellants Shawnn McFadden, Allah Brown, and Ahmad Jamal

Germany appeal their convictions for conspiracy to commit mail fraud and

substantive mail fraud, in violation of 18 U.S.C. §§ 1349 and 1341. McFadden

argues that his speedy trial rights were violated, that the evidence presented was

insufficient to sustain his conviction, that the district court incorrectly calculated

the amount of “intended loss” at his sentencing, and (along with his co-appellants)

that the government proved not one, but multiple conspiracies, leading to an

impermissible variance between the charges and the proof at trial. McFadden also

raises a due process challenge to the use of co-conspirator testimony against him at

trial. Brown argues that the evidence against him was insufficient, and he joins the

variance argument. Germany also argues that the evidence against him was

insufficient and joins the variance argument. We assume the parties’ familiarity


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United States v. McFadden, Brown, & Germany
with the underlying facts, the procedural history, the district court’s rulings, and

the arguments presented on appeal. Each of Defendants-Appellants’ arguments is

addressed in turn.

   I.       McFadden’s Speedy Trial Rights

         McFadden argues that his speedy trial rights were violated when 152 days

elapsed between his final speedy trial waiver and the trial. We review “the district

court’s findings of fact as they pertain to a speedy trial challenge for clear error and

its legal conclusions de novo.” United States v. Lynch, 726 F.3d 346, 351 (2d Cir.

2013).

         We find no violation of McFadden’s speedy trial rights. The district court here

made repeated, thorough on-the-record findings that failing to grant requested

continuances would visit a miscarriage of justice. See, e.g., McFadden Supp. App’x

at 9, 16, 24–25; Gov’t App’x at 26. McFadden is correct that this Court has

suggested that continuances for plea negotiations are not explicitly excludable as

“other proceedings” under 18 U.S.C. § 3161(h)(1)(A), see United States v. Lucky, 569

F.3d 101, 107 (2d Cir. 2009), but the exclusions of time for the continuances in this

case were based on the interests of justice under § 3161(h)(7)(A), not on the “other

proceedings” exclusion in § 3161(h)(1)(A). The district court was tasked with

managing a complex, multi-defendant indictment. Given McFadden’s central role in

the conspiracy, and his failure to move for a severance, it was reasonable for the

district court to grant several relatively short continuances to allow other

defendants to engage in plea negotiations.



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United States v. McFadden, Brown, & Germany
         McFadden also fails to demonstrate prejudice from the delay. “[P]rejudice is

concerned with impediments to the ability of the defense to make its own case (e.g.,

if defense witnesses are made unavailable due to the government’s delay); the

opportunity for the prosecution to prepare for trial does not, on its own, amount to

prejudice to the defense.” United States v. Abad, 514 F.3d 271, 275 (2d Cir. 2008).

McFadden points to no evidence that he was impeded in presenting his case.

         McFadden’s ineffective assistance challenge, based on what he asserts was

denial of a speedy trial, is meritless. His counsel’s performance did not fall below

“an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668,

688 (1984), when, given the questionable legal basis for moving to sever or to

dismiss the indictment, McFadden’s counsel declined to do so.

   II.      Sufficiency of the Evidence Challenges

         We review de novo McFadden, Brown, and Germany’s challenge to the

sufficiency of the evidence. United States v. Naiman, 211 F.3d 40, 46 (2d Cir. 2000).

In evaluating such challenges, we “view the evidence in the light most favorable to

the government, deferring to the jury’s evaluation of the credibility of the witnesses,

its choices between permissible inferences, and its assessment of the weight of the

evidence.” United States v. Jones, 482 F.3d 60, 68 (2d Cir. 2006). We will uphold a

conviction if “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id. (internal alteration omitted).




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United States v. McFadden, Brown, & Germany
         a. McFadden

      Our review of the trial record leads us to conclude that there was sufficient

evidence to prove beyond a reasonable doubt that McFadden committed the crimes

of which he was convicted. The jury heard evidence about how the scheme was

devised and how it operated. The three documents relating to the May 11, 2011

incident—a personal injury claim made to RepWest, a U-Haul contract in

McFadden’s name, and a police report describing the accident between the U-Haul

and a private car—plainly support an inference that the accident was staged and

the claim for personal injuries was fake.

      Further, the charged conspiracy was an overall scheme to defraud insurance

companies by staging accidents with U-Hauls. That McFadden’s criminal activity

constituting the substantive mail fraud count occurred with different co-

conspirators than were tried as co-defendants undermines neither the conspiracy

charge nor the substantive charge.

         b. Brown

      Brown’s sufficiency challenge also lacks merit. Essentially, Brown argues

that the January 22, 2010 accident took two tries, and there was insufficient

evidence to prove that he knew that the second “accident” was staged. Were that

true, it would be some coincidence indeed. There was ample evidence from which a

rational jury could infer that Brown was in on the scam. Roshon Cooke testified

that he recruited Brown as a passenger and that Brown knew what was going on.

He also remained in the car during the time of the second collision and gave



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United States v. McFadden, Brown, & Germany
statements to the police who were investigating it. It was entirely reasonable for the

jury to infer that he was a willing participant in the fraudulent scheme.

      Moreover, from the balance of the evidence presented to the jury about how

the frauds were perpetrated and from the documentary evidence presented as proof

of Brown’s involvement (the police report and the $12,500 liability check), a

reasonable jury could infer that he committed mail fraud.

          c. Germany

      Germany construes the district court’s jury instruction to have advised the

jury that, in order to convict on the conspiracy charge, it had to find actual use of

the mails in furtherance of the conspiracy, and that insufficient evidence was

presented to prove that he made actual use of the mails. Even assuming arguendo,

however, that Germany correctly construes the instruction, “sufficiency of the

evidence to support a conviction is measured against the actual elements of the

offense, and not against an expanded list of elements contained in an erroneous jury

instruction.” United States v. Facen, 812 F.3d 280, 289–90 (2d Cir. 2016). Since the

conspiracy charge required only an agreement to commit mail fraud, and not the

completion of that crime, Germany’s challenge fails.

   III.   McFadden’s Due Process Challenge

      McFadden failed below to raise his due process challenge with respect to the

government’s use of co-conspirator testimony. We therefore review it for plain error

under Federal Rule of Criminal Procedure 52(b). See United States v. Rossomando,

144 F.3d 197, 200 (2d Cir. 1998). There was none.



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United States v. McFadden, Brown, & Germany
         We have held that the government’s use of cooperating witnesses does not

violate the anti-gratuity statute. United States v. Stephenson, 183 F.3d 110, 118 (2d

Cir. 1999) (holding that the statute “does not apply to the United States or to any

Assistant United States Attorney acting within his or her official capacity”). There

is no basis to revisit that holding.

         McFadden had the opportunity to, and did in fact, cross-examine the

witnesses and argue bias to the jury. Further, the district court issued a clear

instruction that accomplice testimony “must be scrutinized by [the jury] with great

care and particular caution.” J. App’x at 1082. On this record, we discern no error,

much less error that is plain.

   IV.      “Intended Loss” Calculation under U.S.S.G. § 2B1.1

         As for McFadden’s sentencing challenge, we “adopt[] a de novo standard of

review when the district court’s application determination was primarily legal in

nature, and adopt[] a clear error approach when the determination was primarily

factual.” United States v. Hsu, 669 F.3d 112, 120 (2d Cir. 2012). Loss amount must

be established by a preponderance of the evidence and is subject to clear error

review. United States v. Brennan, 395 F.3d 59, 74 (2d Cir. 2005). District courts

“may presume that the defendant intended the victims to lose the entire face value”

of the claim. United States v. Confredo, 528 F.3d 143, 152 (2d Cir. 2008). The

defendant may then rebut the presumption with evidence that he actually intended

to cause a lesser loss. Id.




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United States v. McFadden, Brown, & Germany
        Here, despite the opportunity to do so at sentencing, McFadden presented no

such evidence. McFadden failed to rebut the district court’s reasonable

presumption, and the district court did not err in its intended loss calculation.

Accord United States v. Jean, 647 F. App’x 1, 3 (2d Cir. 2016).

   V.      Multiple Conspiracies Argument

        McFadden, Brown, and Germany all argue that the United States proved not

one, but several, independent conspiracies at trial, and the result was an

impermissibly prejudicial variance in the evidence. No defendant requested a

multiple conspiracy jury charge, and no defendant objected to evidence of staged

accidents that they now say fall outside of the conspiracy. When, as here, the

challenge has not been preserved below, the Court reviews defendants’ challenge

only for plain error. United States v. Miller, 116 F.3d 641, 672 (2d Cir. 1997). Our

review of the record and relevant case law reveals no plain error. We affirm the

judgment with respect to this challenge for substantially the reasons stated by the

district court in its thorough and well-considered October 27, 2015 memorandum

and order. See United States v. McFadden, No. 13-cr-284, 2015 WL 6506945, at *16–

17 (E.D.N.Y. Oct. 27, 2015).

        We have considered Defendants-Appellants’ remaining arguments and

determine them to be without merit.

        Accordingly, the judgment of the district court is AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk



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