         11-3591-cr(L)
         United States v. Goffer

                                   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 1st day of July, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, Jr.,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,  No.                             11-3591-cr(L)
17                                                No.                             11-3778-cr(CON)
18                -v.-                            No.                             11-4193-cr(CON)
19                                                No.                             11-4409-cr(CON)
20       ZVI GOFFER, CRAIG DRIMAL, MICHAEL KIMELMAN,
21
22                                     Defendants-Appellants,
23
24       JASON GOLDFARB, ARTHUR CUTILLO,
25       EMANUEL GOFFER, DAVID PLATE,
26
27                                     Defendants.*
28
29
30

                  *
               The Clerk of the Court is directed to amend the
         caption in the case to conform with the above.
 1   FOR APPELLANT     ALEXANDER MARTIN DUDELSON, Law Office of
 2   ZVI GOFFER:       Alexander M. Dudelson, Brooklyn, NY
 3
 4   FOR APPELLANT     MICHAEL S. SOMMER (Morris J. Fodeman,
 5   MICHAEL KIMELMAN: Scott D. Tenley, on the brief) Wilson
 6                     Sonsini Goodrich & Rosati, P.C., New
 7                     York, NY
 8
 9   FOR APPELLANT     ARLENE VILLAMIA-DRIMAL, Weston, CT
10   CRAIG DRIMAL:
11
12   FOR APPELLEE      ANDREW L. FISH, Assistant United States
13   UNITED STATES     Attorney (Richard C. Tarlowe, Assistant
14   OF AMERICA:       United States Attorney, on the brief),
15                     for Preet Bharara, United States Attorney
16                     for the Southern District of New York,
17                     New York, NY.
18
19        Consolidated appeals from the United States District
20   Court for the Southern District of New York (Sullivan,
21   Judge).
22
23       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

24   AND DECREED that the judgments of the District Courts are

25   AFFIRMED, with the exception of the forfeiture order, which

26   is VACATED and REMANDED.

27       Appellants Zvi Goffer, Michael Kimelman, and Craig

28   Drimal appeal from judgments of conviction entered on

29   September 22, 2011; October 13, 2011; and September 1, 2011

30   respectively, in the United States District Court for the

31   Southern District of New York (Richard J. Sullivan, Judge).

32   Defendants’ challenges to their convictions and sentences

33   are discussed in a related opinion, as are relevant facts


                                  2
1    and procedural history.    Goffer, –- F.3d --, 2013 WL -- (2d

2    Cir. 2013).

3        Defendants raise additional challenges to their

4    convictions, including that (1) Section 10(b) of the

5    Securities Exchange Act of 1934 is unconstitutionally vague;

6    (2) the wiretap evidence in this case was improperly

7    minimized and should have been suppressed; (3) the jury

8    instructions related to material, nonpublic information were

9    erroneous; (4) Goffer was punished for refusing to plead

10   guilty; (5) Goffer’s counsel was constitutionally deficient;

11   and (6) the forfeiture order was excessive.    Although we

12   affirm Defendants’ convictions and sentences, we vacate and

13   remand the decision regarding Goffer’s forfeiture order.

14       Drimal challenges his conviction; however, he knowingly

15   (and very explicitly) waived his right to appeal his

16   conviction by entering an unconditional guilty plea.      Plea

17   Tr. 6, 12.    “A defendant who pleads guilty unconditionally

18   . . . waives all challenges to prosecution except those

19   going to the court’s jurisdiction.”    United States v.

20   Lasaga, 328 F.3d 61, 63 (2d Cir. 2003).    Drimal’s challenges

21   to the constitutionality of the Securities Exchange Act of

22


                                    3
1    1934 and to the wiretap minimization procedures used by the

2    Government in this case are therefore dismissed.1

3         Goffer contends that the district court erred in

4    instructing the jury regarding the definition of material,

5    nonpublic information.    Goffer proffered proposed

6    instructions that he asserts would have better defined this

7    information by excluding “confirmation[s] of an event that

8    is fairly obvious to investors knowledgeable about the

9    company or the particular security at issue.”     Goffer Brief

10   at 28.   An identical challenge to identical jury

11   instructions was rejected in United States v. Contorinis,

12   692 F.3d 136, 141-45 (2d Cir. 2012).     Compare id. at 142-44

13   with Tr. 2012-14.    We therefore affirm the district court’s

14   jury instructions.

15        Goffer contends that he was improperly punished for

16   exercising his constitutional right to stand trial.       See

17   Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).      His

18   argument is premised on the district court’s decision not to

19   apply the acceptance of responsibility deduction pursuant to

20   U.S.S.G. § 3E1.1.    “We maintain a distinction between


          1
            We note that, should we reach these arguments, we would
     reject both for substantially the same reasons they were rejected
     by the district court.

                                    4
1    increasing the severity of a sentence for a defendant’s

2    failure to cooperate and refusing to grant leniency.”

3    United States v. Whitten, 610 F.3d 168, 195 (2d Cir. 2010)

4    (internal quotation marks and emphasis omitted).          Here, the

5    district court distinguished between the two and indicated

6    that Goffer was being denied a benefit, but was not being

7    punished.     Sentencing Tr. 40.       We find that Goffer was not

8    punished for standing trial.

9         Goffer contends that his counsel was ineffective under

10   the Sixth Amendment based on his failure to object to the

11   application of the leadership enhancement under U.S.S.G.

12   § 3B1.1.    See Strickland v. Washington, 466 U.S. 668, 686,

13   694 (1984).     Adhering to the Supreme Court’s preference that

14   such claims be litigated in the district court pursuant to

15   “a motion brought under [28 U.S.C.] § 2255,” Massaro v.

16   United States, 538 U.S. 500, 504 (2003), we decline to

17   address Goffer’s argument.     See United States v. Morris, 350

18   F.3d 32, 39 (2d Cir. 2003).2

19        Finally, Goffer contends that the district court erred

20   in calculating his forfeiture.          In light of our decision in


          2
            We note that Goffer’s obvious leadership role in the
     conspiracy makes us dubious as to the likelihood that such a
     claim would pass either Strickland prong.

                                        5
1    Contorinis, 692 F.3d at 145-48, the Government concedes that

2    the forfeiture order should not account for gains realized

3    by Goffer’s employers (the Schottenfeld Group, LLC and the

4    Galleon Group).   Insofar as Goffer’s forfeiture order

5    includes “funds never acquired by him or someone working in

6    concert with him,” this was error.    Id. at 147.   As in

7    Contorinis, “we leave to the district court to decide on

8    remand” how much of “appellant’s interest in salaries,

9    bonuses, dividends, or enhanced value of equity . . . can be

10   said to be money ‘acquired’ by the defendant through the

11   illegal transactions resulting in the forfeiture.”     Id. at

12   148 n.4 (internal quotation marks and citation omitted).

13       Insofar as Goffer argues that the gains realized by

14   convicted co-conspirators should not be included in his

15   forfeiture order, this argument is rejected.    “[A] court may

16   order a defendant to forfeit proceeds received by others who

17   participated jointly in the crime, provided the actions

18   generating those proceeds were reasonably foreseeable to the

19   defendant.”   Id. at 147.   Goffer passed his tips to co-

20   conspirators for the express purpose of allowing them to

21   make trades based on the inside information; their trades

22   were reasonably foreseeable.


                                    6
1        We have considered Defendants’ remaining arguments and

2    find them to be without merit.      For the reasons stated

3    above, the judgments of conviction and sentences ordered by

4    the district court are AFFIRMED; Goffer’s forfeiture order

5    is VACATED and the case is REMANDED to enter an order

6    consistent with this opinion.

 7
 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11




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