         12-94-cr
         United States v. Fleishman

                                 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 8th day of January, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                         Circuit Judges,
 9                RICHARD W. GOLDBERG,
10                         Judge.*
11
12       UNITED STATES OF AMERICA,
13
14                                     Appellee,
15
16                      v.                                           12-94-cr
17
18       BOB NGUYEN, DON CHING TRANG CHU,
19       AKA DON CHU, MANOSHA KARUNATILAKA,
20       MARK ANTHONY LONGORIA, AKA TONY LONGORIA,
21       AKA TONY L., WALTER SHIMOON, AKA Walter S,
22
23                                     Defendants,
24
25       JAMES FLEISHMAN,
26
27                                     Defendant-Appellant.
28
29
30

                *
                 Judge Richard W. Goldberg, of the United States Court of
         International Trade, sitting by designation.
 1   FOR APPELLANT:    BENJAMIN L. COLEMAN (Ethan A. Balogh, on
 2                     the brief), Coleman and Balogh LLP, San
 3                     Diego, CA.
 4
 5   FOR APPELLEE:     BRENT S. WIBLE, Assistant United States
 6                     Attorney (Antonia M. Apps, Michael
 7                     Gerber, Assistant United States
 8                     Attorneys, on the brief), for Preet
 9                     Bharara, United States Attorney for the
10                     Southern District of New York, New York
11                     NY.
12
13
14       Appeal from the United States District Court for the

15   Southern District of New York (Rakoff, J.).

16
17       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18   AND DECREED that the December 27, 2011 judgment of

19   conviction entered in the United States District Court for

20   the Southern District of New York (Rakoff, J.) is AFFIRMED.

21        Defendant-Appellant James Fleishman (“Fleishman”) was

22   convicted by a guilty verdict on September 20, 2011 for

23   conspiracy to commit securities fraud in violation of 18

24   U.S.C. § 371 and conspiracy to commit wire fraud in

25   violation of 18 U.S.C. § 1349.    We assume the parties’

26   familiarity with the facts, the procedural history of the

27   case, and the issues on appeal.

28       Fleishman argues that the district court impermissibly

29   chilled his right to testify in violation of the Sixth


                                  2
1    Amendment by ordering him to produce “[a]ny and all

2    appointment books, calendars, and diaries from 2006 through

3    2010” in violation of the Fifth Amendment.    “[W]hen a

4    defendant takes the stand in his defense, he surrenders his

5    Fifth Amendment privilege for proper cross-examination . . .

6    .”   United States v. Spinelli, 551 F.3d 159, 167 (2d Cir.

7    2008).   Given that Fleishman would have offered “testimony

8    that would constitute a denial both of there being any

9    conspiratorial agreements and of his having any intent to

10   violate the law,” we cannot conclude that Fleishman’s

11   constitutional rights were violated by requiring him to turn

12   over what context suggests are business records for the

13   years of his employment. (Tr. 1739.)    “Calling such papers

14   ‘diaries’ gives them no special sanctity.”     In re Horowitz,

15   482 F.2d 72, 86 n.17 (2d Cir. 1973).

16        Next, Fleishman argues that the district court erred in

17   failing to instruct the jury that they could not use the

18   guilty pleas of cooperating witnesses as substantive

19   evidence to infer guilt.   We review this claim only for

20   plain error because Fleishman failed to object to the

21   omission of his proposed language.     See United States v.

22   Crowley, 318 F.3d 401, 414 (2d Cir. 2003).    Though Fleishman


                                   3
1    correctly observes that this failure was a clear error after

2    our decision in United States v. Ramirez, 973 F.2d 102, 104-

3    06 (2d Cir. 1992), he has not persuasively shown that this

4    error affected the outcome of the trial and the integrity of

5    our judicial system.     See United States v. Marcus, 130 S.

6    Ct. 2159, 2164 (2010).     Considering the strength of the

7    government’s case and that the government never suggested

8    that guilt could be inferred from the guilty pleas,

9    Fleishman was not prejudiced.       See United States v. Hurtado,

10   47 F.3d 577 (2d Cir. 1995); United States v. Rothman, 462

11   F.2d 488 (2d Cir. 1972); United States v. DeLaMotte, 434

12   F.2d 289 (2d Cir. 1970).

13       Relying on United States v. Biaggi, 909 F.2d 662 (2d

14   Cir. 1990), Fleishman also argues that the district court

15   erred under Federal Rule of Evidence 403 by excluding his

16   rejection of a “plea deal” as consciousness of his

17   innocence.   Biaggi noted that a “plea rejection might simply

18   mean that the defendant prefers to take his chances on an

19   acquittal by a jury, rather than accept with certainty

20   punishment associated with a guilty plea.”       Id. at 691.

21   While we note some similarities between Biaggi and the

22   record before us, Fleishman did not convince us that the


                                     4
1    relevance of the rejected plea deal was improperly

2    discounted by the court below.     For that reason, we cannot

3    say that the district court abused its discretion.        See

4    United States v. Khalil, 214 F.3d 111, 112 (2d Cir. 2000).

5        Fleishman also contends that the district court erred

6    in denying his motion for a new trial because the

7    government’s closing arguments constituted an

8    unconstitutional and prejudicial variance in respect to the

9    venue of the conspiracies.   Fleishman must prove that he was

10   prejudiced to sustain his claim.     See United States v.

11   Kaplan, 490 F.3d 110, 129 (2d Cir. 2007).     A “variance is

12   immaterial-and hence not prejudicial-where the allegation

13   and proof substantially correspond, where the variance is

14   not of a character that could have misled the defendant at

15   the trial, and where the variance is not such as to deprive

16   the accused of his right to be protected against another

17   prosecution for the same offense.”     United States v.

18   LaSpina, 299 F.3d 165, 183 (2d Cir. 2002)(internal quotation

19   marks omitted).   “[W]e have routinely found that no

20   prejudice results from a variance between overt acts charged

21   in the indictment and those proved at trial.”     Kaplan, 490

22   F.3d at 129 (citing United States v. Salmonese, 352 F.3d


                                   5
1    608, 622 (2d Cir.2003); LaSpina, 299 F.3d at 182-83; United

2    States v. Frank, 156 F.3d 332, 337 (2d Cir. 1998)).     We have

3    also noted that the government is “not restricted to the

4    overt acts charged in the indictment in justifying its

5    choice” of venue.     United States v. Schwartz, 535 F.2d 160,

6    165 (2d Cir. 1976).    Here, trial evidence supported the

7    venue arguments that the government articulated for the

8    first time in its closing and rebuttal and, though these

9    facts were not set out in the indictment, they were

10   consistent with the core of criminality to be proven at

11   trial.   See United States v. Heimann, 705 F.2d 662, 665-70

12   (2d Cir. 1983).     Fleishman should have anticipated the use

13   of these proofs in establishing venue.     See id.

14       Finally, the district court did not err in authorizing

15   the wiretaps.     See United States v. Yannotti, 541 F.3d 112,

16   124 (2d Cir. 2008).    The law from this Circuit does not

17   support Fleishman’s constitutional arguments as they relate

18   to “trunk lines,” and the Fourth Circuit case on which he

19   relies does not stand for the robust proposition he asserts.

20   See Abraham v. County of Greenville, 237 F.3d 386 (4th Cir.

21   2001).

22


                                     6
1       We have considered Appellant’s remaining arguments and,

2   after a thorough review of the record, find them to be

3   without merit.

4       For the foregoing reasons, the judgment of conviction

5   is AFFIRMED.
6                              FOR THE COURT:
7                              Catherine O’Hagan Wolfe, Clerk
8
9




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