14-3216-cr
United States v. Liounis


                            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 18th day of February, two thousand sixteen.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                              No. 14-3216-cr

PETER LIOUNIS, AKA “Mark Anderson,” AKA
“Andrew Black,” AKA “James Weston,” AKA “Mike
Solli,” AKA “Mike Slolli,” AKA “Mike Sloli,”
                           Defendant-Appellant,

RUSLAN RAPOPORT, AKA “Sam Freed,” AKA “Alex
James,” AKA “Al Jason,” AKA “Mark Berg,”
                                 Defendant.*
----------------------------------------------------------------------

FOR APPELLANT:                                   Robert J. Boyle, Law Office of Robert J. Boyle,
                                                 New York, New York.


*
    The Clerk of Court is directed to amend the caption as set forth above.

                                                     1
FOR APPELLEE:                             Susan Corkery, Daniel A. Spector, Assistant
                                          United States Attorneys, for Robert L. Capers,
                                          United States Attorney for the Eastern District
                                          of New York, Brooklyn, New York.

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

of New York (I. Leo Glasser, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 26, 2014, is AFFIRMED.

       Defendant Peter Liounis stands convicted after a jury trial of nine counts of

conspiratorial and substantive mail, wire, and securities fraud, see 15 U.S.C. §§ 78j(b),

78ff;1 18 U.S.C. §§ 1341, 1343, 1349, for which he received a low-end Guidelines

sentence of 292 months’ imprisonment. On appeal, Liounis’s counsel argues that (1) he

was denied the right to counsel of his choice, (2) his post-arrest statements should have

been suppressed, (3) the government’s trial conduct violated his right to remain silent,

(4) his trial counsel was constitutionally ineffective, and (5) his sentence is procedurally

and substantively unreasonable. Liounis raises additional arguments in a supplemental

pro se brief. We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Right to Counsel

       Liounis argues that he was denied his counsel of choice at both trial and at

sentencing. We disagree.

1
  It appears that the computer program used to enter the Judgment did not afford enough
space for the second “f” in 15 U.S.C. § 78ff. See D.A. 550. The district court should
correct this scrivener’s error manually to avoid any confusion as to the crime of
conviction.

                                             2
      a.      Adjournment of Trial

      Four days before the scheduled start of trial, Liounis—who was then proceeding

pro se (but with standby CJA counsel)—sought an adjournment to a date when recently

retained, but unidentified, counsel could assume responsibility for his defense. We

identify no abuse of discretion in the experienced trial judge’s denial of such an

eve-of-trial adjournment given his (1) reasonable concern that the request was a delay

tactic, see United States v. Pascarella, 84 F.3d 61, 68–69 (2d Cir. 1996); (2) proper

consideration of hardship to eleven victim-witnesses traveling to New York for trial, see

United States v. Brumer, 528 F.3d 157, 160 (2d Cir. 2008); and (3) appointment of

standby counsel to represent Liounis fully at trial.2   When trial began, more than one

year after Liounis began to proceed pro se, and almost two years after his arrest, he had

already had sufficient time to secure retained counsel if he so desired. See United States

v. Scopo, 861 F.2d 339, 344 (2d Cir. 1988) (holding that denial of last-minute request for

adjournment did not violate right to counsel where case had been pending for more than

two years).   Further, the district court had already granted three adjournments: at

Liounis’s request in October 2013, at the parties’ joint request in November 2013, and at

the government’s request in December 2013 (over Liounis’s objection).



2
  Though counsel professed hesitancy about his ability to do a competent job “under
these circumstances,” D.A. 206, in light of Liounis’s vacillation and the district court’s
suspicion that his request was a delay tactic, its refusal to grant the adjournment was not
an abuse of discretion. See also Morris v. Slappy, 461 U.S. 1, 13–14 (1983) (holding
that Sixth Amendment right to counsel does not guarantee “meaningful relationship” with
counsel). Indeed, the trial judge would subsequently commend counsel’s “vigorous
defense” of Liounis at trial despite “overwhelming evidence of guilt.” G.A. 120.

                                            3
       Thus, we conclude that the denial of adjournment did not deny Liounis his right to

counsel of his choice.

       b.     Sentencing

       Liounis argues that he was also denied counsel at sentencing when the district

court relieved his trial attorney (the second CJA attorney appointed for Liounis) without

assigning new counsel. Liounis contends that he never unequivocally expressed a desire

to proceed pro se at sentencing and that the district court’s inquiry into his competence to

make such a decision was inadequate. We review a district court’s conclusion regarding

the constitutionality of a defendant’s waiver of the right to counsel de novo, see United

States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993); accord United States v. Nina, 607 F.

App’x 33, 36 (2d Cir. 2015), affirming if “any reasonable view of the evidence supports

it,” United States v. Spencer, 995 F.2d at 11 (internal quotation marks omitted), and

mindful that whether a waiver is knowing and intelligent “depends upon the particular

facts and circumstances of the case and characteristics of the defendant himself,” United

States v. Fore, 169 F.3d 104, 108 (2d Cir. 1999).

       In this case, Liounis’s actions must be viewed in the context of the choice

presented to him by the district court when he expressed dissatisfaction with trial counsel.

The district court reasonably, and clearly, advised Liounis that he did not have a right to

pick his CJA attorney; his choice was between representation by trial counsel—who had

performed “superbly,” D.A. 319—or proceeding pro se and without standby counsel.

See United States v. Barton, 712 F.3d 111, 118 (2d Cir. 2013) (stating that “voluntary and

unequivocal” requirement “does not mean . . . a court may not, under certain

                                             4
circumstances, require the defendant to select from a limited set of options a course of

conduct regarding his representation,” including forcing defendant “to choose between

waiver and another course of action as long as the choice presented to him is not

constitutionally offensive” (internal quotation marks omitted)); United States v.

Culbertson, 670 F.3d 183, 193 (2d Cir. 2012) (holding that, where “court has already

replaced counsel more than once,” court may reasonably require intractable defendant

“either to proceed with the current appointed lawyer, or to proceed pro se”). In this

context, Liounis’s non-responsive reiteration of his desire for a different court-appointed

attorney, even if not accompanied by an express statement that he wished to proceed pro

se, was reasonably construed by the district court as the latter election. See, e.g., United

States v. Alden, 527 F.3d 653, 661 (7th Cir. 2008); King v. Bobby, 433 F.3d 483, 492

(6th Cir. 2006); United States v. Kneeland, 148 F.3d 6, 12 (1st Cir. 1998); United States

ex rel. Testamark v. Vincent, 496 F.2d 641, 643–44 (2d Cir. 1974).3

       Further, because the district court had already conducted an extensive colloquy

with Liounis to ensure that his pre-trial waiver of counsel was knowing and intelligent,

see Faretta v. California, 422 U.S. 806 (1975), the district court did not need to repeat

that detailed exchange in concluding that Liounis had knowingly and intelligently

decided to forego court-appointed counsel at sentencing, particularly given Liounis’s

previous experience with the criminal justice system. See, e.g., Wilson v. Walker, 204


3
  The district court had also made it clear to Liounis several months earlier that he could
not pick and choose which attorney represented him, explaining, “[I]f you do not wish to
have [appointed counsel] continue to represent you, I will not appoint another lawyer,”
D.A. 310. Liounis nevertheless agreed to continue with appointed counsel.

                                             5
F.3d 33, 38 (2d Cir. 2000) (concluding that defendant showed “purposeful choice

reflecting an unequivocal intent to forego the assistance of counsel,” particularly in light

of his “background and previous experiences in the criminal justice system” (internal

quotation marks omitted)).

       Thus, we reject Liounis’s right-to-counsel challenge as meritless.

2.     Post-Arrest Statements

       Notwithstanding his signature on a rights waiver form, Liounis asserts that his

post-arrest statements should have been suppressed both because he invoked his right to

remain silent, see Miranda v. Arizona, 384 U.S. 436, 444–45 (1966), and because, even if

he did not, his confession was involuntary, see Schneckloth v. Bustamonte, 412 U.S. 218,

224 (1973). Neither challenge has merit.

       As to the first claim, Liounis faults the district court for rejecting his Miranda

challenge without citing his supporting testimony. The argument is defeated by the

record wherein the district court credited DHS Special Agent Richard DeLisio’s

testimony about events leading to the waiver and rejected Liounis’s testimony. See

United States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990) (recognizing

credibility assessments at suppression hearing as province of district judge that appellate

court will not overturn). While Liounis contends that he would not have spoken with

Agent DeLisio after initially refusing to do so, the district court was not compelled to so

find. See, e.g., United States v. Gonzalez, 764 F.3d 159, 166 (2d Cir. 2014) (upholding

admission of statements where defendant first invoked right to silence but later advised

agents that he wished to speak with them).

                                             6
       Liounis’s claim that his physical condition rendered his confession involuntary

also fails because the district court, again resolving credibility disputes, reasonably found

that Liounis was suffering only from allergies when interrogated, which did not prevent

him from knowingly and voluntarily responding to questions while agents retrieved his

medications. See United States v. Maldonado-Rivera, 922 F.2d at 972 (stating that such

findings of fact must be upheld unless “clearly erroneous”); cf. United States v. Taylor,

745 F.3d 15, 27 (2d Cir. 2014) (holding statement involuntary where record compelled

conclusion that defendant was in “stupor” when interrogated).

       Nor can Liounis demonstrate error, much less plain error, in the district court’s

failure to reopen sua sponte his suppression hearing after DeLisio’s trial testimony. See

United States v. Marcus, 560 U.S. 258, 262 (2010) (stating plain error standard); cf. In re

Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196 (2d Cir. 2008)

(applying abuse of discretion review to denial of request to reopen suppression hearing).

While that testimony offered more detail about Liounis’s initial reluctance to speak with

authorities, it nowhere indicated “unambiguous” invocation of the right to remain silent.

Berghuis v. Thompkins, 560 U.S. 370, 381–82 (2010); see United States v. Plugh, 648

F.3d 118, 125 (2d Cir. 2011).

3.     Trial References to Liounis’s Reluctance To Speak with Authorities

       Liounis argues that his right to remain silent was violated by agent testimony

about his reluctance to “make any statements” because Liounis stated, “I don’t want to

incriminate myself,” D.A. 257, 262. As Liounis did not object to the testimony at trial,

our review is limited to plain error. Liounis cannot satisfy this standard because, while

                                             7
Doyle v. Ohio, 426 U.S. 610 (1976), precludes the prosecution from using a defendant’s

post-arrest silence as substantive evidence of guilt, there is no Doyle error where, as here,

a defendant is found not to have unambiguously invoked his right to remain silent before

making an inculpatory admission, see United States v. Okatan, 728 F.3d 111, 118 (2d Cir.

2013) (stating that constitutionality of government’s use of defendant’s silence turns on

whether defendant asserted privilege against self-incrimination). Indeed, because a jury

must decide for itself the reliability of a defendant’s inculpatory statement, the

circumstances informing the statement are properly admitted.          See United States v.

Yousef, 327 F.3d 56, 131 (2d Cir. 2003) (noting requirement that district court “‘instruct

the jury to give such weight to the confession as the jury feels it deserves under all the

circumstances’” (quoting 18 U.S.C. § 3501(a))).

       Liounis also asserts error in DeLisio’s opinion testimony regarding the agent’s

understanding of why Liounis was hedging his responses to interrogation.                The

argument fails because “there is no theoretical prohibition against allowing lay witnesses

to give their opinions as to the mental states of others” with whom they deal directly.

United States v. Rea, 958 F.2d 1206, 1214–15 (2d Cir. 1992); see United States v. Garcia,

291 F.3d 127, 141 (2d Cir. 2002) (observing that to extent witness offered opinion about

what he understood defendant to mean, he was indirectly offering opinion about what

defendant knew, which evidence “in itself is not impermissible”); see generally United

States v. Garcia, 413 F.3d 201, 212 (2d Cir. 2005) (observing, with respect to lay opinion

testimony, that “rule recognizes the common sense behind the saying that, sometimes,

‘you had to be there’”). But even if there were error here, it was harmless.     See United

                                             8
States v. Garcia, 291 F.3d at 143 (noting such error is harmless “if the appellate court can

conclude with fair assurance that the evidence did not substantially influence the jury”

(internal quotation marks omitted)). This is because the evidentiary value of DeLisio’s

opinion that Liounis was trying to shield himself by answering questions indirectly or

“hypothetically” was comparatively insignificant to Liounis’s repeated assertions that any

statements he made would be incriminatory, which strongly manifested consciousness of

guilt. See e.g., Quintana v. Armstrong, 337 F. App’x 23, 26 (2d Cir. 2009) (stating that

defendant’s concern that eyewitness may “get scared and tell about the incident” was

“strongly suggestive” of consciousness of guilt); United States v. Adegbite, 877 F.2d 174,

180 (2d Cir. 1989) (holding that defendant’s “deliberate evasiveness” in response to

question “bespoke a consciousness of guilt”).

       The same conclusion obtains as to DeLisio’s opinion testimony that a throw-away

phone was used to call conspiracy leader “Alex,” given Liounis’s admission that he

called Alex on the phone, and records showing that “about ninety percent” of the phone’s

calls were to Alex. D.A. 286–87.

4.     Ineffective Assistance of Trial Counsel

       Liounis charges trial counsel with constitutionally ineffective representation in

(a) conceding guilt on summation, (b) not moving to reopen the suppression hearing, and

(c) failing to object to DeLisio’s testimony regarding Liounis’s refusals to answer

questions directly. While we generally decline to resolve ineffectiveness claims on

direct review, see Massaro v. United States, 538 U.S. 500, 504–05 (2003), we will do so

where, as here, the factual record is sufficiently developed that resolution of the claim is

                                             9
“beyond any doubt,” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (internal

quotation marks omitted).

       Our resolution of the merits of Liounis’s second and third claims against him

precludes him from demonstrating the requisite prejudice from trial counsel’s failure to

raise them. See Strickland v. Washington, 466 U.S. 668, 694 (1984). As for Liounis’s

claim that trial counsel conceded his identity as “Mark Anderson” to the jury, Appellant

Br. 68, the record is so clearly to the contrary as to defeat the ineffective assistance claim

beyond any doubt on direct appeal.         Indeed, counsel was careful not to concede

Liounis’s identity. See, e.g., D.A. 290d, 290e; G.A. 55–56. Further, given the jury’s

ability to compare the recorded voice of “Mark Anderson” with Liounis’s voice (as a

result of his decision to testify), counsel sensibly did not confine his defense to the issue

of identity, arguing instead that Liounis was, at most, a cold-caller who did not

understand the fraudulent nature of the scheme. In sum, Liounis cannot overcome the

“strong presumption” that counsel’s conduct “might be considered sound trial strategy.”

Strickland v. Washington, 466 U.S. at 689 (internal quotation marks omitted).

5.     Sentencing Challenges

       We apply “a particularly deferential form of abuse-of-discretion review” to

Liounis’s claim that his 292-month sentence is procedurally and substantively

unreasonable. United States v. Cavera, 550 F.3d 180, 187–88 & n.5 (2d Cir. 2008) (en

banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012).




                                             10
       Although a district court errs procedurally if, inter alia, it miscalculates a

defendant’s Guidelines range or rests its sentence on clearly erroneous factual findings,

see United States v. Cavera, 550 F.3d at 190, no such errors are evident here.

       Liounis argues that the district court miscalculated loss, see U.S.S.G. § 2B1.1(b),

by treating the Rockford Group and UBS schemes as relevant conduct without sufficient

evidence of a common scheme or course of conduct with the Grayson Hewitt fraud, see

id. § 1B1.3(a)(2), and without particularized findings as to his personal involvement. In

fact, the district court satisfied its particularized-finding obligation by adopting facts set

forth in the presentence report (“PSR”). See United States v. Carter, 489 F.3d 528, 539

(2d Cir. 2007) (approving explicit reliance on PSR facts for requisite findings). Those

facts, which Liounis does not dispute on appeal, indicated that: (1) an investor-victim

recognized a caller identifying himself as “Andrew Black from UBS” as having the same

voice as a caller posing as “James Weston” in the Rockford scheme; (2) another

investor-victim recognized the voice of “Andrew Black” as belonging to “Mark

Anderson from Grayson Hewitt”; and (3) subsequent analysis confirmed that the voices

of “Andrew Black” and “Mark Anderson” belonged to Liounis. This was sufficient to

admit a preponderance finding of common scheme. See United States v. Hertular, 562

F.3d 433, 447 (2d Cir. 2009) (discussing preponderance standard at sentencing).

Indeed, the conclusion was reinforced by the district court’s observations that the

schemes were carried out during the same time period, involved “almost precisely the

same conduct,” and utilized sophisticated promotional materials that were “virtually

identical in every respect.” D.A. 503.

                                             11
       Nor do we identify error in the district court’s acceptance of the government’s

representation as to the number of victims and amount of loss in the Rockford scheme.

One week before sentencing, the government provided Liounis and the district court with

factual support in the form of a Securities and Exchange Commission declaration filed in

a civil action against Rockford explaining how bank records—provided to Liounis more

than two years earlier—indicated that the fraud involved at least 200 victims and caused

losses of approximately $11 million. Thus, Liounis cannot demonstrate either that the

district court’s findings lack factual support or that he was unable to mount an informed

challenge. These circumstances, together with the hours afforded by the district court

for Liounis to raise numerous objections, defeat Liounis’s attempt to locate procedural

error in the lack of a formal evidentiary hearing on these issues. See United States v.

Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (holding that neither due process nor

Sentencing Guidelines require full-blown evidentiary hearing to resolve sentencing

disputes where defendant is afforded “some opportunity to rebut the Government’s

allegations”); accord United States v. Sabhnani, 599 F.3d 215, 258 (2d Cir. 2010).

       As for Liounis’s substantive challenge, we will set aside a sentence on that ground

only in “exceptional cases” where the sentence cannot be located within the range of

permissible decisions available to a sentencing court.   United States v. Cavera, 550 F.3d

at 189; accord United States v. Broxmeyer, 699 F.3d at 288–89. In the “overwhelming

majority of cases, a Guidelines sentence will fall comfortably within the broad range” of

permissible sentences. United States v. Jones, 531 F.3d 163, 178 (2d Cir. 2008). This

case is no exception.

                                            12
       As the district court’s thorough discussion of the statutory sentencing factors

makes plain, Liounis’s crime was particularly serious, his lack of remorse evident, and

his risk of recidivism high.       See 18 U.S.C. § 3553(a).         Liounis carried out a

sophisticated scheme that defrauded more than 250 victims—many elderly and

vulnerable—out of millions of dollars. The district court found Liounis to be both

callously indifferent to the pain caused by his scheme, and lacking in respect for the law,

the latter evident from (a) his commencement of the charged fraud soon after release

from an 87-month sentence for an earlier fraudulent scheme, (b) his contempt of court in

this case, and (c) his obstruction of justice at trial. In these circumstances, a low-end

Guidelines sentence cannot be deemed outside the district court’s permissible choices.

Nor is a different conclusion warranted by the mitigating factors cited by Liounis,

specifically, his lack of substantial financial benefit or leadership role, and his purported

untreated drug addiction. The weight to be afforded such factors is a “matter firmly

committed to the discretion of the sentencing judge” and generally beyond appellate

review. United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006).

       We, therefore, reject Liounis’s sentencing challenges as without merit.

6.     Pro Se Claims

       Liounis’s pro se challenge to the reasonableness of his sentence fails for the same

reasons as his counseled challenge.

       Liounis’s sufficiency challenge based on United States v. Newman, 773 F.3d 438,

450 (2d Cir. 2014), fails because receipt of a personal benefit is not an element of any of

the crimes of conviction.

                                             13
       Liounis’s indictment challenges are defeated by both the record and long-standing

precedent. See United States v. Schlesinger, 598 F.2d 722, 726 (2d Cir. 1979) (holding

that Fifth Amendment does not require court to look behind facially valid indictment to

consider evidence upon which it is based); United States v. Scopo, 861 F.2d at 341

(approving redactions to provide jury with less prejudicial version of indictment).

       His challenge under Brady v. Maryland, 373 U.S. 83 (1963), lacks record support.

As the government explains, the only documents identified by Liounis that were not

either publicly available or previously disclosed to him do not exist.

       Liounis’s speedy trial claims fail for the reasons set forth in the district court’s

well-reasoned memorandum and order of October 10, 2013.

       His claim of judicial bias fails because adverse judicial rulings cannot support

such a claim absent “deep-seated favoritism or antagonism that would make fair

judgment impossible.” United States v. Yousef, 327 F.3d at 170 (internal quotation

marks omitted). That is not this case. To the contrary, the district judge methodically

addressed dozens of Liounis’s pro se applications spanning hundreds of single-spaced,

typed pages. Moreover, the judge patiently strove to provide Liounis with a fair and

impartial forum notwithstanding Liounis’s frequent obstreperous and self-defeating

conduct.   Cf. Liteky v. United States, 510 U.S. 540, 555–56 (1994) (stating that

“expressions of impatience, dissatisfaction, annoyance, and even anger” are insufficient

to establish bias or partiality). On this record, the district judge’s failure to recuse

himself manifests no abuse of discretion. See In re Basciano, 542 F.3d 950, 957 (2d

Cir. 2008) (identifying standard of review).

                                               14
      Insofar as Liounis’s litany of pro se ineffective assistance claims are coextensive

with those raised in his counseled brief, we have already explained why they fail.

Consistent with our preference for hearing such claims on collateral review, see Massaro

v. United States, 538 U.S. at 504, we decline to address his remaining ineffectiveness

claims on the present record, instead dismissing them without prejudice to Liounis filing

a petition under 28 U.S.C. § 2255.

      Because    Liounis’s   remaining    constitutional   claims   are   presented   only

“perfunctorily,” we deem them waived. See, e.g., United States v. Botti, 711 F.3d 299,

313 (2d Cir. 2013).

7.    Conclusion

      We have considered all of Liounis’s remaining counseled and pro se arguments,

and we conclude that they are without merit. Accordingly, the judgment of the district

court is AFFIRMED.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




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