17-3857(L)
United States v. Block

                         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 TO 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 19th day of March, two thousand twenty.

Present:
            ROBERT A. KATZMANN,
                  Chief Judge,
            PETER W. HALL,
            RICHARD J. SULLIVAN,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

        Appellee,

                 v.                                              Nos. 17-3857, 19-682

BRIAN BLOCK,

      Defendant-Appellant.
_____________________________________

For Appellee:                                     BRIAN R. BLAIS (Edward A. Imperatore,
                                                  Daniel B. Tehrani, Won S. Shin, on the brief),
                                                  Assistant United States Attorneys, for
                                                  Geoffrey S. Berman, United States Attorney
                                                  for the Southern District of New York, New
                                                  York, NY.

For Defendant-Appellant:                          REID H. WEINGARTEN (Michael C. Miller,
                                                  Michelle L. Levin, Michael Vatis, Michael
                                                       G. Scavelli, on the brief), Steptoe & Johnson
                                                       LLP, New York, NY.

       Appeal from a judgment and an order of the United States District Court for the Southern

District of New York (Oetken, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       These consolidated appeals concern defendant-appellant Brian Block’s conviction, after a

jury trial, of securities fraud and related charges arising out of his preparation of financial

statements filed with the U.S. Securities and Exchange Commission (“SEC”) on behalf of

American Realty Capital Properties Inc. (“ARCP”). Block appeals from a judgment of

conviction entered on November 9, 2017 by the United States District Court for the Southern

District of New York (Oetken, J.) imposing a sentence consisting principally of 18 months’

imprisonment for conspiracy to commit securities fraud in violation of 18 U.S.C. § 371,

securities fraud in violation of 15 U.S.C. § 78j(b), making false statements in SEC filings in

violation of 15 U.S.C. § 78m(a), making a false certification of disclosure in SEC filings in

violation of 15 U.S.C. § 78m(a), and filing a false certification with the SEC in violation of 18

U.S.C. § 1350(c)(1). He also appeals a March 19, 2019 opinion and order denying his Rule 33

motion for a new trial based on the government’s alleged failure to disclose impeachment

information it became aware of at trial. United States v. Block, No. 16-cr-595(JPO), 2019 WL

1254762 (S.D.N.Y. Mar. 19, 2019). We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

       Block principally argues that: (1) there was insufficient evidence to support his

conviction because the government failed to prove that ARCP’s adjusted funds from operations

(“AFFO”) reporting was “objectively” false; (2) the district court abused its discretion by failing




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to exclude evidence of Block’s compensation; (3) the district court abused its discretion by

failing to exclude evidence of an ARCP Audit Committee investigation, Block’s subsequent

termination, and a purported cover-up in response to that investigation; (4) the district court

abused its discretion by failing to exclude lay opinion testimony in response to hypothetical

questions that assumed Block’s guilt; and (5) the district court improperly denied Block’s Rule

33 motion for a new trial based on the government’s failure to disclose impeachment information

it learned of during trial.

        We review challenges to the sufficiency of the evidence de novo, considering the totality

of the evidence and drawing all permissible inferences in the government’s favor, and will affirm

if any rational jury could have found the defendant guilty beyond a reasonable doubt. See United

States v. Taylor, 816 F.3d 12, 22 (2d Cir. 2016). The government introduced sufficient evidence

for a jury to find beyond a reasonable doubt that Block’s AFFO reporting was false or

misleading within the meaning of the securities laws, including evidence that: (1) Block inserted

“plug” numbers for two inputs into the AFFO in order to correct a previous methodological error

in how ARCP’s AFFO was calculated; (2) the two plug numbers were not supported by ARCP’s

books and records; (3) Block’s colleague expressed concerns about Block’s AFFO calculation

and later reported it to superiors; and (4) after ARCP’s Audit Committee initiated an

investigation, Block discussed a way to justify the plug numbers. Contrary to Block’s assertion,

the government was not required to call an expert to testify to the objective falsity of Block’s

AFFO reporting. See United States v. Ebbers, 458 F.3d 110, 125–26 (2d Cir. 2006) (“[E]ven

where improper accounting is alleged, the statute requires proof only of intentionally misleading

statements that are material, i.e., designed to affect the price of a security. . . . If the government

proves that a defendant was responsible for financial reports that intentionally and materially




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misled investors, the statute is satisfied. The government is not required in addition to prevail in

a battle of expert witnesses over the application of individual [Generally Accepted Accounting

Principles] rules.”) (citing 15 U.S.C. § 78ff). Here, the evidence introduced by the government at

trial did not require the assistance of an expert to understand.

       Block’s challenges to the government’s introduction of evidence of his compensation, his

termination pursuant to an ARCP Audit Committee investigation, and lay opinion testimony in

response to hypothetical questions likewise fail for substantially the reasons stated by the district

court in its rulings on Block’s motions in limine raising these challenges.

       Finally, in assessing whether the district court abused its discretion in denying Block’s

motion for a new trial, we need not resolve whether the district court properly concluded that the

withheld evidence constituted impeachment material within the meaning of Giglio v. United

States, 405 U.S. 150 (1972).1 Even if it did, we agree with the district court that the

government’s failure to disclose the evidence does not entitle Block to a new trial because it was

not material in light of the substantial evidence introduced against Block at trial.




       1
          The district court held an evidentiary hearing concerning Block’s motion for a new trial
on November 20, 2018. After the hearing, the court concluded that the withheld evidence
constitutes impeachment material within the meaning of Giglio, observing that “[e]ven if it was a
close question, the Government should have disclosed the conversation. As the Supreme Court
has pointed out, a prosecutor anxious about tacking too close to the wind will disclose a
favorable piece of evidence.” No. 19-682 Special App. at 12 (internal citations, quotation marks,
and brackets omitted).




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       We have considered Block’s remaining arguments on appeal and have found in them no

basis for reversal. For the foregoing reasons, the judgment and order of the district court are

AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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