         11-2185-cr
         United States v. Drayer




                                   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 for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 11th day of October, two thousand twelve.
 4
 5       PRESENT:
 6                   JON O. NEWMAN,
 7                   GERARD E. LYNCH,
 8                   RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10       ____________________________________________________________
11
12       United States of America,
13
14                                     Appellee,
15
16                       v.                                                          11-2185-cr
17
18       Barry Drayer,
19
20                               Defendant-Appellant.
21       ___________________________________________________________
22
23       FOR DEFENDANT-APPELLANT:                     Barry Drayer, pro se, Otisville, New York.
24
25       FOR APPELLEE:                                David C. James and Steven L. Tiscione, Assistant
26                                                    United States Attorneys, for Loretta E. Lynch,
27                                                    United States Attorney for the Eastern District of
28                                                    New York, Brooklyn, New York.
29
30
31
 1          Appeal from a judgment of the United States District Court for the Eastern District of

 2   New York (Arthur D. Spatt, Judge).

 3          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

 4   DECREED that the May 2011 judgment of the district court, as amended in August 2011, is

 5   AFFIRMED.

 6          Defendant-Appellant Barry Drayer appeals from the judgment of the district court

 7   entered May 27, 2011, and amended on August 12, 2011, sentencing him principally to a term of

 8   imprisonment of 114 months, a term of supervised release of three years, and restitution in the

 9   amount of $4,338,940.07.

10          Drayer challenges: (1) his sentence, and particularly the finding that his United States

11   Sentencing Guidelines offense level was 32; (2) the special condition on his term of supervised

12   release that he not be employed in “brokering financial deals for doctors”; and (3) the restitution

13   amount. Drayer further argues that the Government breached an earlier agreement to limit the

14   amount of loss attributable to his offense to $12.5 million, and that the Government violated its

15   obligations under Brady v. Maryland, 373 U.S. 83 (1963). We assume the parties’ familiarity

16   with the underlying facts, the procedural history of the case, and the issues on appeal.

17           “We review a sentence for reasonableness, which is akin to review for abuse of

18   discretion, under which we consider whether the sentencing judge exceeded the bounds of

19   allowable discretion, committed an error of law in the course of exercising discretion, or made a

20   clearly erroneous finding of fact.” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)

21   (internal quotation marks omitted). “The law is well established that if, as a tactical matter, a

22   party raises no objection to a purported error, such inaction constitutes a true waiver which will


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 1   negate even plain error review.” United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007)

 2   (internal quotation marks omitted).

 3          At the re-sentencing hearing, the Government offered to agree to a loss amount of $2.5

 4   million to $7 million, with a corresponding Guidelines offense level of 32, rather than dispute

 5   the amount of loss. The Government represented that, even if the district court continued with a

 6   scheduled hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), to

 7   determine the loss amount and Drayer prevailed on every issue, Drayer’s lowest possible

 8   Guidelines offense level was 32. Drayer, who was proceeding pro se, stated that he had

 9   discussed the Government’s concession with stand-by counsel, understood the stipulation, and

10   agreed to the offense level of 32. Drayer thus waived any challenge to the offense level,

11   notwithstanding his current arguments regarding the calculation of the loss amount. See

12   Quinones, 511 F.3d at 321; United States v. Jackson, 346 F.3d 22, 24 (2d Cir. 2003) (holding

13   that objection to an adjustment to the offense level was waived where counsel conceded that the

14   adjustment applied).

15          Drayer failed to object to the district court’s imposition of a ban on his ability to

16   “broker[] financial deals for doctors” as a condition of supervised release, and we thus review

17   the district court’s action for plain error. See United States v. Villafuerte, 502 F.3d 204, 207 (2d

18   Cir. 2007) (“[I]issues not raised in the trial court because of oversight, including sentencing

19   issues, are normally deemed forfeited on appeal unless they meet our standard for plain error.”).

20   A district court can impose a condition of supervised release that is “reasonably related” to, inter

21   alia, “the nature and circumstances of the offense and the history and characteristics of the

22   defendant.” United States v. Dupes, 513 F.3d 338, 343-44 (2d Cir. 2008); see also U.S.S.G.


                                                      3
 1   § 5F1.5 (allowing for the imposition of occupational restrictions where “a reasonably direct

 2   relationship existed between the defendant’s occupation, business, or profession and the conduct

 3   relevant to the offense of conviction”). This occupational restriction is clearly related to the

 4   underlying offenses, as Drayer was convicted of fraudulently brokering financing deals for

 5   doctors. See United States v. RW Prof’l Leasing Servs. Corp., 452 F. Supp. 2d 159, 163-71

 6   (E.D.N.Y. 2006) (describing the nature of Drayer’s offense). The restriction therefore was not

 7   plain error. Cf. United States v. Gill, 523 F.3d 107, 109 (2d Cir. 2008) (affirming a ban on the

 8   defendant providing counseling services, where he had been convicted of making false

 9   representations regarding his qualifications).

10          This Court earlier vacated and remanded the restitution order in this case for

11   consideration of whether certain banks had been compensated via a civil settlement. See United

12   States v. Drayer, 364 F. App’x 716 (2d Cir. 2010). Drayer’s current challenges to the restitution

13   order were either raised in his previous appeal or could have been raised, and are thus barred by

14   the law of the case doctrine. See United States v. Williams, 475 F.3d 468, 475 (2d Cir. 2007).

15   To the extent Drayer argues that the Government breached an earlier agreement to limit the loss

16   amount to $12.5 million by seeking a higher amount upon remand, even assuming that the

17   Government’s behavior constituted a breach, Drayer was not prejudiced by the breach because

18   the Government eventually conceded to a much lower loss amount of no more than $7 million.

19          Drayer alleges that the Government violated its Brady obligations by failing to turn over:

20   (1) the records of the Margolin Law Firm with respect to their representation of several banks in

21   related civil litigation; (2) statements by Drayer’s co-conspirators that no money was missing

22   from the company they ran with Drayer; and (3) an Ernst & Young audit of Drayer’s company.


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 1   Drayer offers no evidence that the Government has, or at any point had, these documents, nor

 2   that his co-conspirators made these statements, but instead argues that it “makes absolutely no

 3   sense” and “defies logic and common sense” that the Government would not have obtained these

 4   documents or statements in the course of its investigation. The Government states that it

 5   represented to the district court on multiple occasions that it did not ever have any of these

 6   documents, and that the co-conspirator statements Drayer seeks simply do not exist. Because the

 7   record has not been sufficiently developed, we decline to consider Drayer’s Brady claim as to the

 8   three matters listed above, which he is free to pursue in a timely petition pursuant to 28 U.S.C. §

 9   2255. See United States v. Dula, 989 F.2d 772, 775-76 (5th Cir. 1993) (declining to address

10   Brady claim on direct appeal because of absence of record, and dismissing Brady claim without

11   prejudice to defendants’ right to raise the issue in a 2255 proceeding); cf. United States v.

12   Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006) (declining to consider ineffective assistance claim

13   on direct appeal because of insufficient record, and holding that defendant could “raise those

14   claims in the district court by petition under § 2255”); United States v. Khedr, 343 F.3d 96, 100

15   (2d Cir. 2003) (same).

16          To the extent that Drayer alleges a Brady violation premised on the Government’s failure

17   to turn over a 2005 letter from the EDNY U.S. Attorney’s Office’s Victim Coordinator to banks

18   who were victimized by The Bank of New York’s involvement in Drayer’s fraudulent

19   transactions, the claim is without merit, as Drayer has not shown that any prejudice ensued from

20   the alleged failure to disclose the letter. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999)

21   (“There are three components of a true Brady violation: The evidence at issue must be favorable

22   to the accused, either because it is exculpatory, or because it is impeaching; that evidence must


                                                      5
 1   have been suppressed by the State, either willfully or inadvertently; and prejudice must have

 2   ensued.”); United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004) (same). The letter merely

 3   notified the concerned banks that The Bank of New York had contributed $12 million towards a

 4   restitution fund, to be administered by the EDNY U.S. Attorney’s Office, and that they could

 5   submit claims for restitution, minus the amount received from The Bank of New York in any

 6   private settlements. The existence of this restitution fund was well known to Drayer, and the

 7   Government’s submissions to the district court regarding proposed restitution amounts for

 8   Drayer took the money Drayer’s victims had received from this restitution fund into account.

 9          We have considered all of Drayer’s additional arguments and find them to be without

10   merit. Accordingly, the judgment of the district court is AFFIRMED.

11                                                       FOR THE COURT:
12                                                       Catherine O’Hagan Wolfe, Clerk
13
14




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