12-2889-cr(L)
United States v. Yaron, et al.

                   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 10th day of December, two thousand fourteen.

Present:              BARRINGTON D. PARKER
                      CHRISTOPHER F. DRONEY
                      Circuit Judges.1

MICHAEL YARON, MOSHE BUCHNIK,
SANTO SAGLIMBENI, EMILIO A/K/A
“TONY” FIGUEROA, CAMBRIDGE
ENVIRONMENTAL & CONSTRUCTION CORP.,                                         ORDER
D/B/A NATIONAL ENVIRONMENTAL
ASSOCIATES, OXFORD CONSTRUCTION
& DEVELOPMENT CORP. and ARTECH CORP.,                              Docket Nos. 12-2889-cr(L)
      Defendants-Appellants,                                       12-2940-cr (Con) 12-2972-cr (Con)
                                                                   12-2976-cr (Con) 12-3078-cr (Con)
              v.                                                   12-4556-cr (Con) 12-4685-cr (Con)



        1
               Judge Debra A. Livingston, originally assigned to this panel, recused herself. The appeal was
               decided by the remaining two members of the panel, who are in agreement as to the disposition,
               pursuant to Internal Operating Procedure E(b) of the Rules of the United States Court of Appeals
               for the Second Circuit. See 28 U.S.C. § 46(d).
UNITED STATES OF AMERICA,

       Appellee.

Appearing for Appellants:                       Lisa A. Mathewson, Law Offices of Lisa A.
                                                Mathewson, LLC, Philadelphia, PA; Marc
                                                Agnifilo, Brafman & Associates, P.C., New York,
                                                NY; Neil S. Comer, White Plains, NY; Aidan P.
                                                O’Connor, Pashman Stein, P.C., Hackensack, NJ

Appearing for Appellee:                         Nickolai G. Levin (Stephen J. McCahey, Mary
                                                Anne F. Carnival, John W. Van Lonkhuyzen,
                                                John J. Powers, III, on the brief), for William J.
                                                Baer, Assistant Attorney General, United States
                                                Department of Justice, Antitrust Division,
                                                Washington D.C.


      Appeal from judgments of conviction in the United States District Court for the
Southern District of New York (Daniels, J.).

    UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND
DECREED that the judgments are hereby affirmed.

       Defendants Michael Yaron, Moshe Buchnik, Santo Saglimbeni, Emilio A/K/A
“Tony” Figueroa, Cambridge Environmental & Construction Corporation, doing business
as National Environmental Associates (“Cambridge”), Oxford Construction &
Development Corporation (“Oxford”) and Artech Corporation (“Artech”) appeal from
judgments of conviction for wire fraud and conspiracy to commit wire fraud. 18 U.S.C.
§§ 1343, 1346, and 1349.2 Defendants raise a number of issues on this consolidated appeal:
(1) there was insufficient evidence to support the jury’s verdict; (2) the admission of certain
audio recordings violated the Confrontation Clause; (3) the District Court erred in denying
their motion for a new trial based on a denial of their rights to due process and compulsory
process; (4) the District Court erred in calculating their offense levels under the Sentencing
Guidelines; and (5) the Government violated its Brady obligations. We affirm. We assume
familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.




        2
               On June 10, 2014, this Court granted the motion of Defendants Saglimbeni and Artech to
               withdraw their appeal.
                                                     2
                                          DISCUSSION

        A.    Sufficiency of the Evidence
        Defendants Buchnik and Figueroa contend that there was insufficient evidence at trial
that the payments made to Saglimbeni and Artech constituted “kickbacks” for work awarded
to the other Defendants. See United States v. Yaron, No. S2 10 Cr. 363(GBD), 2012 WL
2477646 (S.D.N.Y. June 28, 2012). Figueroa also challenges the sufficiency of the evidence
supporting his conviction for participating in the wire fraud conspiracy.
        “We review de novo a challenge to the sufficiency of the evidence and affirm if the
evidence, when viewed in its totality and in the light most favorable to the government, would
permit any rational jury to find the essential elements of the crime beyond a reasonable
doubt.” United States v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008) (internal quotation marks
omitted). “A defendant challenging the sufficiency of the evidence bears a heavy burden,
because the reviewing court is required to draw all permissible inferences in favor of the
government and resolve all issues of credibility in favor of the jury verdict.” United States
v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011).
        We conclude that the evidence introduced at trial was sufficient to support the
convictions. There was evidence that, inter alia, payments were made in exchange for the
awarding of air monitoring and asbestos abatement contracts and that payments were
directed to Saglimbeni’s company (Artech) in a manner calculated to conceal their sources.
The Government’s evidence also included Figueroa’s recorded statements that Saglimbeni
“was writing them req[uisitions], so they could write him checks” and that the conspiracy
should be hidden from law enforcement officials. Joint App’x 1046, 1049-50. Viewing
this evidence in its totality and in the light most favorable to the Government, a rational
jury could have found beyond a reasonable doubt that the payments to Saglimbeni and
Artech were kickbacks and that Figueroa was a knowing participant in the conspiracy and
benefitted from it.

        B.    Sixth Amendment Confrontation Clause
        Defendants contend that the District Court’s decision to admit David Porath’s
recorded statements violated the Confrontation Clause because they were inadmissible
testimonial statements. See Crawford v. Washington, 541 U.S. 36 (2004). It is well settled
that a cooperator’s “statements on [a] body wire recording are not within the ‘core class of
testimonial statements’ described in Crawford.” United States v. Burden, 600 F.3d 204,
225 (2d Cir. 2010), cert. denied, 131 S. Ct. 953 (2011) (neither statements of the accused,
nor of a confidential source, on a surreptitious recording, qualify as “testimonial
statements”). Porath’s recorded statements provided context for Figueroa’s admissions.
Although Porath might have been aware that the recordings could be used at a later trial,
his primary purpose was to elicit inculpating admissions by Figueroa, not to accuse the
Defendants of wrongdoing. See Burden, 600 F.3d at 225. The admission of the recordings
thus did not violate the Confrontation Clause. Moreover, in light of the extensive evidence


                                             3
adduced at trial regarding the existence of the conspiracy and the Defendants’ roles
therein, any erroneous admission of these statements would have been harmless error.
        Defendants further contend that the recordings were inadmissible hearsay and did
not fall under an exception to hearsay as co-conspirator statements in furtherance of a
conspiracy. “In general, statements of co-conspirators in furtherance of a conspiracy are
non-testimonial.” United States v. Logan, 419 F.3d 172, 178 (2d Cir. 2005). While both
the declarant and the party against whom the statement is offered must be members of a
conspiracy, the person to whom the statement was made need not be if he has knowledge
of the conspiracy. United States v. Beech-Nut Nutrition, 871 F.2d 1181, 1199 (2d Cir.
1989). Figueroa’s statements on the recordings were admissible against him as party
admissions under Rule 801(d)(2)(A) and against the other Defendants as statements in
furtherance of a conspiracy under Rule 801(d)(2)(E). Porath’s statements were not
admitted for their truth, but as context to show what had been adopted, or responded to, by
Figueroa and, consequently, also were not hearsay.

       C.     Compulsory Process and Due Process
       Defendants further argue that the District Court abused its discretion in denying the
Defendants’ motion for a new trial on grounds that they were denied their rights to due
process and to compulsory process. See Yaron, 2012 WL 2477646, at * 4. The District
Court found that the Defendants had failed to prove any of the three elements of a
Compulsory Process Clause claim – namely, bad faith on the part of the Government; a
plausible showing that the testimony would have been material and favorable; and a
showing that the trial was fundamentally unfair. See United States v. Valenzuela-Bernal,
458 U.S. 858, 868 (1982); Buie v. Sullivan, 923 F.2d 10, 12 (2d Cir. 1990). We agree.
       As the District Court correctly found, the Defendants did not establish that the
Government acted in bad faith by delaying Porath’s return to this country, or that the
Government purposefully misled the Defendants regarding his whereabouts. In any event,
the record does not indicate that the Defendants ever sought to call Porath as a witness and
the Defendants have not proffered any specific testimony that Porath would have given
that would have been “favorable.” Thus, the District Court correctly concluded that the
Defendants failed to carry their burden of proving materiality and favorability and we see
no reason to find that Porath’s testimony would have affected the verdict, given the
substantial evidence of guilt adduced by the Government.

        D.    Loss Calculation at Sentencing
        Defendants also argue that the District Court erred in determining the appropriate
loss amount. See U.S.S.G. § 2B1.1.3 The District Court found that the hospital suffered a
loss from the wire fraud conspiracy, but that the precise amount of the loss could not be

       3
              The District Court sentenced Yaron principally to 60 months of imprisonment and Buchnik
              principally to 48 months of imprisonment. After Saglimbeni and Figueroa pled guilty to Counts
              Three and Four, they were sentenced principally to 48 months of imprisonment and 36 months of
              imprisonment, respectively.
                                                    4
reasonably determined. Applying Application Note 3(B) to U.S.S.G. § 2B1.1, the District
Court calculated the loss using the amount of kickbacks or Defendant Saglimbeni’s gain
(in the amount of $2.4 million) as an alternative measure.
        Defendants contend that Saglimbeni’s gain is an inappropriate loss amount because
there was no evidence that the hospital lost money, i.e. that the Defendants overbilled or
that the hospital contracted for work that was not performed or was not performed
satisfactorily. Again, we disagree because, at trial, the Government adduced substantial
evidence to the contrary. That evidence established that, inter alia, (1) the conspirators
effectively passed on at least one of the kickback payments to the hospital by including it
in their accounting for a construction contract; (2) the Defendants manipulated the bidding
process; and (3) because of the kickbacks, Saglimbeni had an incentive to give contracts to
the other Defendants without considering whether competitors would do the same quality
of work for less money. Accordingly, we find no reason to disturb the District Court’s
determination of the applicable loss amount.

        E.     Brady Violation
        On June 16, 2014, this Court ordered the Government to produce all documents in
its possession concerning Porath’s extradition and availability as well as prior statements
that he made as a cooperating witness. The case was remanded to the District Court for in
camera review of the documents to determine whether any of the documents contained
Brady material that should have been disclosed to the Defendants. The District Court was
to determine whether the documents altered its decision to deny the Defendants’ Rule 33
motion. On October 15, 2014, the District Court concluded, following in camera review
of all the documents, that “none of the documents reviewed contain Brady material, and
that the content of the documents does not alter the Court’s June 28, 2012 decision to deny
the Defendants’ Rule 29 and Rule 33 motions.” The mandate for this case was recalled on
October 16, 2014. Since the documents revealed no favorable information for the
Defendants and their non-disclosure fails to meet the standard for a Brady violation, we
also affirm the District Court’s conclusion that there were no Brady violations. See
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).1
        The Court has considered Defendants’ remaining arguments and finds them to be
without merit.




       1
             We also deny the Defendants’ motion for supplemental briefing on these issues.
                                                   5
                            CONCLUSION

For the foregoing reasons, we AFFIRM the judgments of conviction.

                                FOR THE COURT:

                                Catherine O’Hagan Wolfe,
                                Clerk of Court




                                   6
