     14-2394-cr
     United States v. Balboa

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-2394
16
17       MICHAEL BALBOA,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Malvina Nathanson, New York, New
22                                             York.
23
24       FOR APPELLEE:                         Jason H. Cowley (with Michael A.
25                                             Levy on the brief) for Preet
26                                             Bharara, United States Attorney
27                                             for the Southern District of New
28                                             York, New York, New York.

                                                  1
 1
 2        Appeal from a judgment of the United States District
 3   Court for the Southern District of New York (Crotty, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 8
 9        Michael Balboa appeals from the judgment of the United
10   States District Court for the Southern District of New York
11   (Crotty, J.), convicting and sentencing Balboa to 48 months’
12   imprisonment for conspiracy to commit securities fraud,
13   securities fraud, conspiracy to commit wire fraud, wire
14   fraud, and investment advisor fraud. We assume the parties’
15   familiarity with the underlying facts, the procedural
16   history, and the issues presented for review.
17
18        1. Balboa challenges the sufficiency of the evidence
19   supporting the conspiracy counts. “A defendant challenging
20   the sufficiency of the evidence bears a heavy burden,
21   because the reviewing court is required to draw all
22   permissible inferences in favor of the government and
23   resolve all issues of credibility in favor of the jury
24   verdict.” United States v. Kozeny, 667 F.3d 122, 139 (2d
25   Cir. 2011). “The traditional deference accorded to a jury’s
26   verdict ‘is especially important when reviewing a conviction
27   for conspiracy . . . because a conspiracy by its very nature
28   is a secretive operation, and it is a rare case where all
29   aspects of a conspiracy can be laid bare in court with the
30   precision of a surgeon’s scalpel.’” United States v.
31   Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (quoting United
32   States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992)).
33   Balboa concedes that, because he did not raise this argument
34   below, we review his challenge for plain error, which
35   requires that there be error, the error be plain, the error
36   prejudicially affect Balboa’s substantial rights, and the
37   error seriously affect the fairness, integrity, or public
38   reputation of judicial proceedings. See United States v.
39   Thomas, 274 F.3d 655, 667 (2d Cir. 2001).
40
41        “[T]he conspiratorial agreement itself may be
42   established by proof of a tacit understanding among the
43   participants, rather than by proof of an explicit agreement
44   . . . .” United States v. Desimone, 119 F.3d 217, 223 (2d
45   Cir. 1997). Drawing all reasonable inferences in favor of
46   the government, no plain error was committed as the evidence
47   adduced at trial was sufficient to show that DeCharsonville

                                  2
 1   and Pratt had such a tacit understanding with Balboa and
 2   engaged in “purposeful behavior aimed at furthering the
 3   goals of the conspiracy.” Id.
 4
 5        2. Balboa challenges the loss determination, which was
 6   based on the total sum of money that victims of Balboa’s
 7   scheme were fraudulently induced to invest in the Hedge
 8   Fund. “We review the district court’s factual findings with
 9   respect to the loss amount . . . for clear error and its
10   conclusions of law de novo.” United States v. Desnoyers,
11   708 F.3d 378, 385 (2d Cir. 2013). And the Sentencing
12   Guidelines “do not require that the sentencing court
13   calculate the amount of loss with certainty or precision.”
14   United States v. Bryant, 128 F.3d 74, 75 (2d Cir. 1997).
15
16        Balboa argues that the global economic downturn, rather
17   than his fraudulent scheme, was the ultimate cause of the
18   victims’ loss and therefore, the actual loss attributable to
19   the fraud was $0. Balboa’s argument is foreclosed by United
20   States v. Hsu, 669 F.3d 112, 121 (2d Cir. 2012), which held
21   that “[t]he guidelines provide that when an investor puts
22   money into a fraudster’s hands, and ultimately receives
23   nothing of value in return, his loss is measured by the
24   amount of principal invested . . . .” See also United
25   States v. Stitsky, 536 F. App’x 98, 112 (2d Cir. 2013)
26   (“[T]he district court reasonably determined that no offset
27   was warranted for losses resulting from changed economic
28   circumstances because . . . investors would not have been
29   exposed to such risks had defendants not fraudulently
30   induced them to invest in the first instance.”).
31
32        3. Balboa’s supplemental brief challenges the
33   forfeiture calculation. “When a forfeiture award is
34   challenged on appeal, this Court reviews the district
35   court’s legal conclusions de novo and its factual findings
36   for clear error.” United States v. Treacy, 639 F.3d 32, 47
37   (2d Cir. 2011). On this record, no clear error appears in
38   the district court’s forfeiture determination.
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 1        For the foregoing reasons, and finding no merit in
 2   Balboa’s other arguments, we hereby AFFIRM the judgment of
 3   the district court.
 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
 7
 8
 9
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