14-0605-cr(L)
United States v. Ramlochan

                                    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 24th
day of August , two thousand fifteen.

PRESENT:

           JOSÉ A. CABRANES,
           REENA RAGGI,
           RICHARD C. WESLEY,
                                Circuit Judges.
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UNITED STATES OF AMERICA,
                      Appellee,
                                                                                           Nos.   14-0605-cr (L)
                     -v.-                                                                         14-2182-cr (CON)
                                                                                                  14-2282-cr (CON)
SHANE BROWNE, CASSANDRA CEAN,
           Defendants-Appellants,

KIM RAMLOCHAN, also known as KIM CUPELES,
also known as KIM YOHAY, BIBI OMAR, also known as ZAMEENA OMAR,
                      Defendant.*
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FOR DEFENDANT BROWNE:                                                     Meredith S. Heller, Tor Ekeland, P.C,
                                                                          Brooklyn, New York.




          *   The Clerk of Court is directed to amend the official caption in this case to conform with the above.


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FOR DEFENDANT CEAN:                                       LOUIS M. FREEMAN, Freeman, Nooter &
                                                          Ginsberg, New York, New York. Vivian
                                                          Shevitz, South Salem, New York.

FOR APPELLEE:                                             MARGARET E. GANDY, Jo Ann Navickas,
                                                          Maria Cruz Melendez, Assistant United States
                                                          Attorneys, for Kelly T. Currie, Acting United
                                                          States Attorney for the Eastern District of
                                                          New York, Brooklyn, New York.

        Appeal from a June 20, 2014 judgment and an April 14, 2014 judgment of the United States
District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the June 20, 2014 judgment and the April 14, 2014 judgment of the District
Court are AFFIRMED, and the cause REMANDED for the limited purpose of permitting entry
of the revised restitution order.

        Defendants Cassandra Cean and Shane Browne appeal their judgments of conviction from
the District Court.1 Following a jury trial, Cean was convicted of conspiracy to commit wire fraud in
violation of 18 U.S.C. §§ 1343 and 1349, and four counts of wire fraud in violation of 18 U.S.C.
§ 1343. The District Court sentenced Cean principally to 87 months’ imprisonment and three years’
supervised release. Browne pleaded guilty to conspiring to commit wire fraud in violation of 18
U.S.C. §§ 1343 and 1349. He was sentenced principally to 51 months’ imprisonment and three years’
supervised release. Both Cean and Browne were ordered to pay restitution of $1,205,355.

         Defendants raise numerous arguments on appeal. Cean contends that: (1) her indictment was
constructively amended; (2) the District Court improperly admitted evidence of a subsidiary
conspiracy; (3) the government improperly referenced inadmissible evidence when it cross-examined
her; (4) the District Court erred in denying her motion for a new trial or an evidentiary hearing
based on alleged juror misconduct; (5) her sentence was both procedurally and substantively
unreasonable; and (6) the District Court erred in calculating her restitution amount.2 Browne argues
that: (1) the District Court erred in calculating his restitution amount; and (2) his sentence was both


        1 Although this summary order only resolves the cases of Cassandra Cean and Shane Browne, the
   consolidated appeal originally involved another defendant, Kim Ramlochan. In an order filed the same day
   as this summary order, we reject the Anders motion filed by Ramlochan’s counsel as well as the
   government’s motion for summary affirmance. We also direct the parties to file a scheduling notification
   and direct the Clerk’s office to unconsolidate Ramlochan’s appeal from the appeals of her co-defendants.
         2 In response to a letter from Cean’s counsel, dated August 14, 2015, we granted permission for Cean

   to join in Browne’s argument that the District Court erred in setting the restitution amount in the case.


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procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying
facts and the procedural history of the case.

                                              DISCUSSION

                            I. Constructive Amendment of the Indictment

         An indictment has been constructively amended when the evidence at trial or a jury charge
broadens the basis for conviction from the one contained in the indictment. See United States v.
Milstein, 401 F.3d 53, 65 (2d Cir. 2005). “To prevail on a constructive amendment claim, a defendant
must demonstrate that the terms of the indictment are in effect altered by the presentation of
evidence and jury instructions which so modify essential elements of the offense charged that there is a
substantial likelihood that the defendant may have been convicted of an offense other than that
charged in the indictment.” United States v. D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012) (internal
citation and quotation marks omitted). There is no constructive amendment “where a generally
framed indictment encompasses the specific legal theory or evidence used at trial.” United States v.
Salmonese, 352 F.3d 608, 620 (2d Cir. 2003) (internal quotation marks omitted).

        Cean argues that the government constructively amended the indictment as the government
pressed a “broader ‘scheme’” at trial. Appellant Cean’s Br. 40. But the essential elements of the
scheme described in the indictment—that the defendants, including Cean, perpetrated mortgage
fraud—were the essential elements of the scheme proved at trial. Indeed, the government may have
also proved additional facets of that mortgage fraud scheme, including the manipulation of certain
individuals as straw buyers. But that all emanated from the same criminal offenses committed by the
defendants and is thus not a constructive amendment of the indictment.

                                           II. Evidentiary Issues

         Cean also contends that she was improperly prejudiced by the introduction of evidence
relating to a subsidiary conspiracy to prevent Tyroon Comacho from going to the authorities.3 She
claims that the government never established that she was part of any specific conspiracy related to
Comacho, a necessary predicate for admitting a co-conspirator’s statement under Fed. R. Evid.
801(d)(2)(E). The government argues that the evidence relating to Comacho was not admitted to
prove the truth of the matter asserted or as a co-conspirator statement but only to provide context
for Comacho’s payment of money to Cean after the meeting. Moreover, the government argues that



        3 Cean also claims that statements relating to the silencing of Joanne Legair were improperly
admitted. This evidence, however, was properly admitted under Rule 801(d)(2)(E) as a co-conspirator
statement made in furtherance of the underlying mortgage fraud conspiracy in this case.


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even if evidence about the conspiracy related to Comacho was erroneously admitted, it did not
constitute plain error.4

         Upon review of the record, we agree with the government that the admission of evidence
relating to the conspiracy to silence Comacho was not plain error. To constitute plain error, “there
must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are
met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v.
United States, 520 U.S. 461, 466–67 (1997) (citations, internal quotation marks, and alterations
omitted). Cean’s challenge fails the plain error test because the purported evidentiary error did not
impugn the fairness or integrity of the trial. There was no evidence presented that Cean was aware
of the purpose of the conspiracy to silence Comacho nor was she directly implicated in the financial
arrangement that was meant to ensure Comacho’s silence. Moreover, in light of the other record
evidence of Cean’s guilt presented at trial, admission of this evidence did not have a “substantial and
injurious effect or influence in determining the jury’s verdict.” United States v. Estrada, 430 F.3d 606,
622 (2d Cir. 2005) (internal quotation marks omitted).

        Cean also asserts that the District Court erred in permitting cross-examination about her
alleged participation in a prior fraudulent real estate transaction. But trial judges are given broad
discretion in determining the scope of cross-examination, see United States v. Blanco, 861 F.2d 773, 781
(2d Cir. 1988), and we find no abuse of that discretion here. At trial, Cean testified that she was an
unknowing participant in the mortgage fraud scheme at issue in the case. The government’s cross-
examination regarding the prior fraudulent real estate scheme was thus justifiably aimed at probing
Cean’s credibility pursuant to Fed. R. Evid. 608(b) and it did not violate her substantial rights.

                                         III. Motion for a New Trial

          A district court may vacate a judgment of conviction and grant a new trial “if the interest of
justice so requires.” Fed. R. Crim. P. 33. We review a trial court’s decision to deny a Rule 33 motion
for abuse of discretion, upholding findings of fact that were made in the course of deciding the
motions unless they are clearly erroneous. See, e.g., United States v. Wong, 78 F.3d 73, 78-79 (2d Cir.
1996). To be granted “a new trial in a situation where a juror makes a mistaken response to a
question, a party must first demonstrate that a juror failed to answer honestly a material question on
voir dire, and then further show that a correct response would have provided a valid basis for a
challenge for cause.” United States v. Shaoul, 41 F.3d 811, 815 (2d Cir. 1994) (citing McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (brackets and ellipses omitted)).


        4 As Cean did not properly preserve these objections at trial, her evidentiary challenge is reviewed for
plain error.


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         Cean contends that the District Court erred in denying her motion for a new trial pursuant
to Rule 33.5 Her motion centers on her allegation that two jurors “concealed information upon
which bias could be inferred.” Appellant Cean’s Br. 51. The District Court, however, did not abuse
its discretion in denying Cean’s motion, nor was its decision based on findings of fact that were
clearly erroneous. Indeed, Cean fails to point to any purportedly false statement made by a juror
during voir dire that would affect that juror’s impartiality. Accordingly, we find no error—much less a
clear error— in the District Court’s finding of no juror misconduct and we similarly identify no
abuse of its discretion in its decision to deny Cean’s Rule 33 motion.

                                            IV. Sentencing Issues

          We review a sentence for procedural unreasonableness by focusing on whether the
sentencing court followed all the necessary steps in deciding upon a sentence. United States v. Park,
758 F.3d 193, 197 (2d Cir. 2014). A sentencing decision is procedurally unreasonable when a district
court “makes a mistake in its Guidelines calculation, does not consider the § 3553(a) factors, or rests
its sentence on a clearly erroneous finding of fact.” United States v. Hsu, 669 F.3d 112, 120 (2d Cir.
2012) (internal quotation marks and ellipses omitted). For the substantive reasonableness inquiry, an
appellate court will set aside a district court’s sentence “only in exceptional cases where the trial
court’s decision cannot be located within the range of permissible decisions.” United States v. Cavera,
550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal citation and quotation marks omitted); United
States v. Park, 758 F.3d 193, 199–201 (2d Cir. 2014). We review both procedural and substantive
unreasonableness challenges under an abuse of discretion standard. See United States v. Corsey, 723
F.3d 366, 378 (2d Cir. 2013); United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008).

        Cean and Browne both challenge their sentence on procedural and substantive
unreasonableness grounds. Upon review of the record, we find no unreasonableness—procedural or
substantive—in Cean’s sentence. Browne’s appeal also fails because his challenge is precluded by his
execution of a plea agreement in which he waived the right to appeal a sentence below 71 months’
imprisonment.6 Gov’t App’x 3.




         5 In the alternative, Cean argues for an evidentiary hearing on the issue. Post-trial jury hearings

should be granted “when there is clear, strong, substantial and incontrovertible evidence that a specific,
nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.” United States v.
Vitale, 459 F.3d 190, 197 (2d Cir. 2006) (internal quotation marks omitted). Because we identify no such abuse
here, we hold that the District Court did not err in denying Cean’s motion for an evidentiary hearing.
        6Browne was ultimately sentenced to a term of 51 months’ imprisonment. Appellant Browne’s
   App’x 92.


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                                             V. Restitution

         Cean and Browne argue—and the government agrees—that the District Court erred in
setting their restitution amount at $1,205,355. “The purpose of restitution is essentially
compensatory … a restitution order must be tied to the victim’s actual, provable, loss.” United States
v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012) (internal citations and quotation marks omitted). Because
the District Court’s restitution order overstates the actual loss amount to the victims, we remand the
cause as to both Browne and Cean for the limited purpose of permitting entry of a revised
restitution order.

                                          CONCLUSION

         We have considered defendants’ remaining arguments and find them without merit.
Accordingly, we AFFIRM the June 20, 2014 judgment and the April 14, 2014 judgment of the
District Court, and REMAND the cause for the limited purpose of permitting entry of the revised
restitution order.

                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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