16-738-cr (L); 16-2380-pr (L)
United States v. Rutigliano; Lesniewski v. United States

                                   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 26th day of May, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                                                                         Nos. 16-738-cr (L),
                                 v.                                           16-845-cr (Con),

JOSEPH RUTIGLIANO, PETER J. LESNIEWSKI,
                    Defendants-Appellants,

PETER J. AJEMIAN, MARIA RUSIN, GREGORY
NOONE, REGINA WALSH, SHARON FALLOON,
GARY SATIN, STEVEN GAGLIANO, RICHARD
EHRLINGER, BRIAN DELGIORNO, PHILIP
PULSONETTI, GREGORY BIANCHINI, FRANK
PLAIA, AKA “FRANKLIN PLAIA,” MICHAEL
DASARO, KARL BRITTEL, KEVIN NUGENT,
GARY SUPPER, THOMAS DELALLA, MICHAEL
STAVOLA, MARIE BARAN,
                     Defendants.



                                                            1
----------------------------------------------------------------------
PETER J. LESNIEWSKI, PETER J. AJEMIAN,
JOSEPH RUTIGLIANO,
                                 Petitioners-Appellants,
                                                                         Nos. 16-2380-pr (L),
                                                 v.                           16-2095-cr (Con),
                                                                              16-2534-pr (Con)
UNITED STATES OF AMERICA,
                                 Respondent-Appellee.*
----------------------------------------------------------------------
APPEARING FOR APPELLANTS:                         JOSEPH W. RYAN, JR., Law Offices of
                                                  Joseph W. Ryan, Jr., Melville, New York, for
                                                  Joseph Rutigliano.

                                                 THOMAS ANTHONY DURKIN, Durkin &
                                                 Roberts, Chicago, Illinois (John D. Cline, Law
                                                 Office of John D. Cline, San Francisco,
                                                 California, on the brief), for Peter J.
                                                 Lesniewski.

                                                 SEAN M. MAHER, The Law Offices of Sean
                                                 M. Maher, PLLC, New York, New York, for
                                                 Peter J. Ajemian.

APPEARING FOR APPELLEE:                          DANIEL B. TEHRANI, Assistant United States
                                                 Attorney (Karl Metzner, Assistant United States
                                                 Attorney, on the brief), for Preet Bharara,
                                                 United States Attorney for the Southern District
                                                 of New York, New York, New York.

        Appeal from orders of the United States District Court for the Southern District of

New York (Victor Marrero, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the final orders entered on March 4, 2016, and June 20, 2016, are

AFFIRMED.



*
    The Clerk of Court is directed to amend the case captions as set forth above.

                                                      2
       Defendants Peter J. Ajemian and Peter J. Lesniewski, former orthopedic

physicians, and Joseph Rutigliano, a former Long Island Rail Road (“LIRR”) conductor

and union local president, were convicted, based on a guilty plea (Ajemian) and a jury

verdict (Lesniewski and Rutigliano), of multiple counts of substantive and conspiratorial

mail, wire, and health care fraud, see 18 U.S.C. §§ 371, 1341, 1343, 1347, 1349, in

connection with a wide-ranging scheme to defraud the United States Railroad Retirement

Board (“RRB”) by submitting fraudulent applications for disability pensions on behalf of

LIRR employees. Rutigliano was also convicted of making false statements in his own

disability recertification forms filed with the RRB. See 18 U.S.C. § 1001. The district

court sentenced each defendant to a below-Guidelines prison term of 96 months and to

three years’ supervised release, and ordered restitution in amounts ranging from

approximately 70 to 116 million dollars.

       On appeal, Lesniewski and Rutigliano challenge the district court’s denial of their

Fed. R. Crim. P. 33 motions for a new trial, and all defendants challenge the denial of

their 28 U.S.C. § 2255 petitions seeking resentencing. 1          We assume the parties’

familiarity with the facts and record of prior proceedings—including our prior opinion

and summary order—which we reference only as necessary to explain our decision to




1
  The district court limited the certificates of appealability under § 2255 to the question
of whether defendants were entitled to resentencing as to their prison terms.
Defendants’ argument that they are entitled to a reduction in restitution is the subject of a
separate appeal not before this panel. See United States v. Rutigliano, Nos. 16-3754,
16-3858, 16-3894, 16-3898, 16-3979 (2d Cir.), appeals docketed November 4, 2016,
November 15, 2016, November 17, 2016, and November 29, 2016.

                                             3
affirm. See United States v. Rutigliano, 790 F.3d 389 (2d Cir. 2015); United States v.

Rutigliano, 614 F. App’x 542 (2d Cir. 2015).

1.    Rule 33 Motions for a New Trial

      Under Fed. R. Crim. P. 33(a), a district court may, upon defense motion, “vacate

any judgment and grant a new trial if the interest of justice so requires.” The motion

must demonstrate that the evidence relied upon (1) is newly discovered, (2) was obtained

through the exercise of due diligence, (3) is material, (4) is not merely cumulative or

impeaching, and (5) would likely result in an acquittal. See United States v. Persico,

645 F.3d 85, 109 (2d Cir. 2011). The government concedes for the purpose of these

appeals that Rutigliano’s and Lesniewski’s Rule 33 motions are premised upon “newly

discovered evidence” and were therefore timely filed. See Fed. R. Crim. P. 33(b)(1)–

(2). To grant a Rule 33 motion, the district court must harbor a “real concern that an

innocent person may have been convicted” such that “it would be a manifest injustice to

let the guilty verdict stand.” United States v. Cacace, 796 F.3d 176, 191 (2d Cir. 2015)

(citations omitted); see United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009)

(observing that only “exceptional circumstances” will override deference normally

accorded jury’s evaluation of evidence and determinations of credibility (citation

omitted)). We review the denial of such a motion for abuse of discretion, accepting the

district court’s factual findings as true so long as they are not clearly erroneous. See

United States v. McCourty, 562 F.3d at 475. We identify no such abuse here.




                                           4
       a.       Lesniewski

       Lesniewski seeks a new trial based upon the RRB’s reinstatement of benefits for a

majority of reapplying LIRR annuitants whose disability-pension applications had

previously been voided because of their reliance on his allegedly fraudulent diagnoses.

Lesniewski argues that such reinstatement indicates that his patients were in fact

disabled, and that the fraud was therefore either non-existent or of lesser magnitude than

the government had contended at trial.   He argues that the reinstatement of most benefits

undermines the prosecution’s trial argument that LIRR’s disability-pension rate—four

times that of the comparable Metro-North Railroad—could be explained only by fraud,

rather than by the LIRR employees’ legitimate entitlement to disability payments.

       The argument fails to demonstrate abuse of discretion in the denial of Rule 33

relief. As a preliminary matter, the RRB’s recent reinstatement of certain disability

pensions hardly compels an inference that prior disability applications by the same

individuals were meritorious.     More to the point, the reinstatement applications

necessarily excluded any documentation from Lesniewski and Ajemian and, thus, do not

speak to the fraudulent nature of such documents when they were included in prior

applications.    In sum, the inferences to be drawn from the RRB’s reinstatement

decisions do not plainly favor defendants. Much less do they evince such exceptional

circumstances as would suggest that the jury’s guilty verdicts effected a manifest

injustice.

       In any event, defendants, whose intent to defraud was found proved by the jury,

are not relieved of culpability because the claimants whose applications they supported

                                            5
with fraudulent documentation might have received benefits without the assistance of

such fraud. The government was not required to prove that disability pensions would

have been denied but for the misrepresentations, only that the misrepresentations were

material—i.e., that they had a “natural tendency to influence, or [be] capable of

influencing” the RRB’s disability-pension decisions. See United States v. Corsey, 723

F.3d 366, 373 (2d Cir. 2013) (citation omitted). There is no question that Lesniewski’s

misrepresentations influenced the decisions that were then voided.

       To the extent Lesniewski argues that the RRB reinstatement decisions negate the

existence of fraud—or his fraudulent intent—the government presented overwhelming

evidence on that score. Several of Lesniewski’s former “patients” testified that his

office was well known for fabricating paper trails to support disability applications, and

that they were expressly directed to his office for that purpose. Indeed, one witness

recounted sending a note to Lesniewski asking for evidence of additional disabilities to

increase his chances of qualifying for a pension. The government presented further

evidence that, in return for fabricated “narrative” summaries supporting their disabilities,

each client paid Lesniewski between $800 and $1,200. Lesniewski was aware that

many of these patients were then working and could continue to work. Further, he

provided them little or no treatment for the conditions from which he reported they were

suffering. Finally, evidence showed that Lesniewski admitted to federal agents that he

had included exaggerations in at least 20% of the applications in which he sought to

qualify patients for disability pensions.



                                             6
      On this record, we cannot conclude that the district court abused its discretion in

denying Lesniewski’s motion for a new trial.2

      b.      Rutigliano

      Rutigliano relies on the RRB’s reinstatement orders and related testimony by the

RRB Inspector General to renew his challenge to the instruction charging the jury that

LIRR employees were entitled to disability pensions only if they were either totally

disabled or disabled for work in their regular occupation, rather than merely “unable to

perform one or more tasks” of their employment, the standard for which defendants

advocated.   Rutigliano Br. 7.    On Rutigliano’s first appeal, this court rejected the

argument that his proposed charge accurately represented the law, and concluded that the

instruction delivered by the district court was not erroneous.      See United States v.

Rutigliano, 790 F.3d at 402. Under the law of the case doctrine, we must generally

adhere to our “own decision at an earlier stage of the litigation.” United States v. Plugh,

648 F.3d 118, 123 (2d Cir. 2011) (citation omitted).   While “limited exceptions” to this

doctrine may be warranted in “compelling” cases based upon the “availability of new

evidence,” id. at 123–24, that is not this case because Rutigliano fails adequately to


2
  While we do not understand Rutigliano to raise the same argument in support of his
Rule 33 motion, the evidence of his intent to defraud was equally overwhelming. As to
his own fraudulent disability claim, an orthopedist called by the government testified that
Rutigliano’s purported injuries were dramatically exaggerated or wholly fabricated, and,
in one instance, physically impossible. Trial evidence demonstrated that, while
ostensibly retired based upon his total physical disability, Rutigliano frequently played
golf and engaged in other physical activities. As to Rutigliano’s complicity in the
broader scheme, LIRR employees testified to paying Rutigliano $1,000 to provide
narrative summaries in support of their applications for disability, which narratives
frequently used strikingly similar “cookie cutter” language to support the applications.

                                            7
explain how the evidence proffered here alters the applicable regulatory standard for

occupational disability.

       In any event, the argument fails on the merits.        The challenged instruction

incorporated the applicable regulatory definition of occupational disability: an employee

who is “disabled for work in his or her regular railroad occupation because of a

permanent physical or mental impairment.”          20 C.F.R. § 220.10.        Rutigliano’s

proposed language, which suggests that an employee is entitled to occupational disability

if there is a single task that he cannot perform, appears instead in “governing principles”

adopted by the Labor-Management Joint Committee on Railroad Retirement.

Rutigliano App’x 250. That language, as the RRB Inspector General states in passages

upon which Rutigliano relies, does not appear in the applicable agency regulation.

Moreover, and in any event, Rutigliano was permitted by the district court to urge this

interpretation of the RRB’s disability standard in summations.

       Accordingly, we affirm the district court’s denial of Rutigliano’s Rule 33 motion.

2.     Section 2255 Petitions Seeking Resentencing as to Prison Terms

       Rutigliano, Lesniewski, and Ajemian all appeal the district court’s denial of so

much of their § 2255 petitions as sought resentencing as to their terms of imprisonment,

arguing that the RRB’s reinstatement orders mandate a reduction in the loss figures upon

which their Guidelines ranges were premised. In reviewing the district court’s findings

of fact for clear error and conclusions of law de novo, see Cox v. United States, 783 F.3d

145, 149 (2d Cir. 2015), we identify no error.



                                            8
      At the outset, we note that, while the district court ultimately addressed the merits

of all three defendants’ § 2255 petitions, its denial of Ajemian’s petition was proper in

any event because he was convicted pursuant to a plea agreement wherein he waived his

right to appeal or collaterally attack any sentence “within or below the Stipulated

Guidelines Range of 121 to 151 months’ imprisonment” and including a restitution award

less than or equal to $116,500,000. Gov’t Add. 5. Because Ajemian was sentenced to

96 months’ imprisonment and restitution of $116,500,000, that waiver is valid so long as

it was knowing and voluntary. See, e.g., Garcia-Santos v. United States, 273 F.3d 506,

507–09 (2d Cir. 2001).

      In urging otherwise, Ajemian argues that he did not specifically allocute to the

intended-loss figure, and his counsel was ineffective in negotiating his plea. As to the

former, the parties had stipulated to a loss amount of $116,500,000, which the

government explained represented a conservative estimate of the total value of disability

benefits awarded to Ajemian’s hundreds of LIRR patients, further discounted for the

possibility that some of those patients could have been legitimately disabled. Ajemian

provided factual support for that conclusion at sentencing when he agreed that he had

prepared disability narratives for “large numbers of Long Island Railroad employees”

who were “not in fact disabled,” all the while knowing that the RRB would erroneously

rely upon them in paying benefits to those employees.            Ajemian App’x 85–86.

Moreover, Ajemian averred that he was entering his plea voluntarily, that he was guilty,

and that no one had threatened or induced him to do so. As to the claim of ineffective

counsel, Ajemian provides only conclusory assertions that his counsel was somehow

                                            9
deficient in failing adequately to contest the intended-loss calculations.    Accordingly,

Ajemian’s sentencing challenge is barred by his knowing and voluntary waiver of his

appellate rights.

       As to the merits, all three defendants’ applicable Guidelines ranges were

determined under U.S.S.G. § 2B1.1(b), which calculates the offense level for fraud by

reference to the monetary value of the “loss” associated therewith. Where the loss

amount cannot be identified precisely, a sentencing court can “make a reasonable

estimate of the loss,” U.S.S.G. § 2B1.1 cmt. n.3(c), and on appeal, that loss determination

“is entitled to appropriate deference,” id. (citing 18 U.S.C. § 3742(e)–(f)). Loss refers to

the “greater of actual loss or intended loss,” id. cmt. n.3(A), where “actual loss” is the

“reasonably foreseeable pecuniary harm that resulted from the offense,” id. cmt.

n.3(A)(i), and “intended loss” is the “pecuniary harm that the defendant purposely sought

to inflict,” even if the harm was “impossible or unlikely to occur,” id. cmt. n.3(A)(ii).

Following these Guidelines here, the district court looked to the amount of loss

defendants intended to cause, rather than the lower quantity of loss that actually occurred.

       In denying habeas relief, the district court concluded that the RRB’s post-trial

reinstatement decisions did not diminish the intended-loss figures. The contention that

the intended-loss figures were merely “derivative” of actual losses, Ajemian Br. 22, is

unsupported by the record. Accordingly, even if the RRB’s decision to reinstate many

of the voided disability pensions based on non-fraudulent documentation altered the




                                            10
actual losses suffered by the agency,3 the same conclusion does not apply to the intended

losses, which were premised upon the scope of the harm reasonably foreseeable to

defendants from their provision of fraudulent documentation to induce RRB payments

that would not have been made if—and indeed were stopped when—the RRB learned

that the applications were knowingly false. In sum, because defendants fail to show that

the RRB’s reinstatement decisions would have altered their applicable Guidelines ranges,

we affirm the district court’s denial of defendants’ § 2255 petitions insofar as they sought

resentencing for a reduction in their prison terms.

3.     Conclusion

       We have considered defendants’ remaining arguments and conclude that they are

without merit.      Accordingly, the orders of the district court are AFFIRMED.

Rutigliano’s motion for bail pending appeal is DENIED as moot.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




3
  We express no view on whether the RRB reinstatement decisions reduced the actual
losses reflected in defendants’ restitution orders, a matter not before this panel.

                                             11
