         10-562-cr
         United States v. Tzolov (Butler)

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of June, two thousand eleven.
 5
 6       PRESENT:
 7                      WILFRED FEINBERG,
 8                      BARRINGTON D. PARKER,
 9                      RICHARD C. WESLEY,
10                               Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee-Cross-Appellant,
17
18                      -v.-                                                10-562-cr (Lead)
19                                                                          10-754 (XAP)
20       JULIAN TZOLOV,
21
22                                     Defendant,
23
24       ERIC BUTLER,
25                                     Defendant-Appellant-Cross-Appellee.*
26
27
28
29       *      Docket Number 10-754 was closed by stipulation filed on September
30              24, 2010.
 1   FOR APPELLANT:      STEVEN F. MOLO, Edward F. Daniels, New
 2                       York, NY (Robert K. Kry, Washington, DC,
 3                       on the brief), Molo Lamken LLP; Paul T.
 4                       Weinstein, Emmet, Marvin & Martin, LLP,
 5                       New York, NY, on the brief.
 6
 7   FOR APPELLEE:       JOHN P. NOWAK, (Daniel A. Spector & Jo
 8                       Ann M. Navickas, on the brief), Assistant
 9                       U.S. Attorney for the Eastern District of
10                       New York, for Loretta E. Lynch, United
11                       States Attorney for the Eastern District
12                       of New York, Brooklyn, NY.
13
14        Appeal from the Eastern District of New York
15   (Weinstein, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18   AND DECREED that the judgment of the district court be

19   AFFIRMED.

20        Appellant appeals from a judgment of conviction and

21   sentence of the United States District Court for the Eastern

22   District of New York (Weinstein, J.).     Appellant objects,

23   inter alia, to the introduction of certain evidence, as well

24   as to the district court’s sentencing calculation.1     We

25   assume the parties’ familiarity with the underlying facts,

26   the procedural history, and the issues presented for review.

27


          1
             Appellant also argues that venue was not properly laid
     in the Eastern District of New York. We address this issue in
     a separate opinion in which we reverse Butler’s conviction
     for securities fraud and affirm his conviction as to the
     remaining challenged counts and remand for further proceedings.

                                    2
1    Appellant objects to the introduction of a recorded

2    conversation between Notarnicola—one of Appellant’s

3    customers and victims—and Appellant and his co-defendant.

4    In this conversation, Notarnicola made detailed and repeated

5    accusations of fraud against the defendants, at times

6    reading directly from the language of the statutes under

7    which defendants were eventually charged.    The government

8    offered the recording for a supposed non-hearsay purpose:

9    accompanied by testimony from Appellant’s co-defendant, it

10   was employed as evidence of the defendants’ evasive or

11   untruthful responses to those accusations, constituting part

12   of their overall fraudulent scheme.

13       We recognize that there are serious concerns over the

14   propriety of the district court allowing this tape into

15   evidence.   The recording’s prejudicial effect very likely

16   outweighed its probative value.    However, we review

17   evidentiary rulings for abuse of discretion.    See, e.g.,

18   United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d. Cir.

19   2007).   Furthermore, those rulings are subject to harmless

20   error analysis.   See, e.g., United States v. Madori, 419

21   F.3d 159, 168 (2d. Cir. 2005).    We conclude that any error

22   resulting from the introduction was harmless, as the


                                   3
1    remaining evidence was more than sufficient to convict

2    Appellant.   Thus, we need not decide whether the district

3    court abused its discretion.   See Fed. R. Crim. P. 52(a).

4        Appellant also objects to the district court’s

5    enhancement of his sentence, when the court determined that

6    the loss inflicted was not readily calculable, and instead

7    based its offense level calculation on Appellant’s gain,

8    pursuant to U.S. Sentencing Guidelines Manual § 2B1.1 n.3(B)

9    (2010).   That provision states that “[t]he court shall use

10   the gain that resulted from the offense as an alternative

11   measure of loss only if there is a loss but it reasonably

12   cannot be determined.”

13       We review a district court’s legal interpretation of

14   the Sentencing Guidelines de novo, and review underlying

15   factual findings for clear error.   See, e.g., United States

16   v. Canova, 412 F.3d 331, 351 (2d Cir. 2005).   Judge

17   Weinstein found that Appellant inflicted pecuniary loss on

18   his victims, but that the amount of loss could not

19   reasonably be determined.   Therefore, he appropriately used

20   the gain realized by Appellant, in the form of commissions

21   earned on the fraudulent sales, as an alternative measure of

22   loss pursuant to the Guidelines provision quoted above.      His


                                    4
1    factual findings present no clear error, and his

2    interpretation of the Guidelines meets de novo review.   The

3    sentencing calculation below was not erroneous.

4        We have considered Appellant’s remaining contentions,

5    and find them without merit.

6        For the foregoing reasons, the judgment of the district

7    court is hereby AFFIRMED.

 8
 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




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