     13-3485(L)
     United States v. Rabinowitz, 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of April, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                              Circuit Judges,
 9
10                    DENISE L. COTE,*
11                                  District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17
18                    -v.-                                               13-3485
19                                                                       13-3726
20
21       AARON RABINOWITZ, MATTHEW BURSTEIN,
22                Defendants-Appellants
23


                *
                  The Honorable Denise L. Cote, United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1   RONALDO E. ROLDAN, HUGO LEIVA,
 2   MATTHEW VENEZIO, ELIAS COMPRES, JOHN
 3   CONSTANTANIDES,
 4            Defendants.
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANTS:            ANDREW H.   FREIFELD, Law Office
 8                              of Andrew   H. Freifeld, New York,
 9                              New York,   for Defendant-
10                              Appellant   Matthew Burstein.
11
12                              BRIAN P. COMERFORD, Federal
13                              Public Defender’s Office,
14                              Western District of New York,
15                              Buffalo, New York, for
16                              Defendant-Appellant Aaron
17                              Rabinowitz
18
19   FOR APPELLEE:              MATTHEW S. AMATRUDA (with Amy
20                              Busa, Robert T. Polemeni, and
21                              Alexander A. Solomon, on the
22                              brief) Assistant United States
23                              Attorneys, for Robert L. Capers,
24                              United States Attorney for the
25                              Eastern District of New York,
26                              Brooklyn, New York.
27
28        Appeal from a judgment of the United States District
29   Court for the Eastern District of New York (Ross, J.).
30
31        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
32   AND DECREED that the judgment of the district court be
33   AFFIRMED.
34
35        Defendants-appellants Aaron Rabinowitz and Matthew
36   Burstein appeal from judgments entered on September 9, 2013
37   in the United States District Court for the Eastern District
38   of New York (Ross, J.), convicting them, after a jury trial,
39   of conspiracy to commit wire fraud and bank fraud, in
40   violation of 18 U.S.C. § 1349, seven counts of bank fraud,
41   in violation of 18 U.S.C. § 1344, and two counts of wire
42   fraud, in violation of 18 U.S.C. § 1343. Rabinowitz and
43   Burstein were both sentenced to 27 months of imprisonment.
44   We assume the parties’ familiarity with the underlying
45   facts, the procedural history, and the issues presented for
46   review.

                                  2
 1        Rabinowitz and Burstein argue that they were entitled
 2   to certain Internal Revenue Service tax transcripts to
 3   impeach cooperating witness Barbara Armas, that the
 4   transcripts prove that Armas committed perjury about seeking
 5   extensions to file her tax returns, and that the district
 6   court erroneously denied a new trial premised on these
 7   arguments.
 8
 9        Defendants also assert that the district court erred in
10   denying their motion to dismiss the indictment based on
11   allegations of outrageous government misconduct by a former
12   case agent involved in the investigation. They further
13   fault the district court for failing to hold a hearing to
14   address this misconduct claim.
15
16        1.  “[T]he Government’s failure to disclose evidence
17   that is materially favorable to the defense violates due
18   process.” United States v. Rivas, 377 F.3d 195, 199 (2d
19   Cir. 2004) (citing Brady v. Maryland, 373 U.S. 83, 87
20   (1963)). Brady’s scope includes impeachment evidence if it
21   has “the potential to alter the jury’s assessment of the
22   credibility of a significant prosecution witness.” Rivas,
23   377 F.3d at 199. “Undisclosed impeachment evidence is not
24   material in the Brady sense when, although possibly useful
25   to the defense, it is not likely to have changed the
26   verdict.” United States v. Avellino, 136 F.3d 249, 257 (2d
27   Cir. 1998) (internal quotation marks omitted).
28
29        Defendants argue that the withholding of evidence
30   warrants a new trial; however, the evidence was not
31   material. There was no reasonable likelihood that any false
32   testimony about extension requests would have affected the
33   verdict.
34
35        The tax transcripts were of only incremental value.
36   The defense extensively questioned Armas on her
37   participation in the mortgage fraud, her post-guilty plea
38   misconduct, her cooperation agreement with the government,
39   her failure to file tax returns, and the continuing benefits
40   she derived from the properties she obtained through her
41   mortgage fraud, among other misconduct.
42
43        As the district court found, proof that she may not
44   have sought an extension to file her taxes was merely
45   additional impeachment evidence, and any unavailability of
46   the material to the defense did not require a new trial.
47

                                  3
 1        Further supporting the rejection of defendants’ Brady /
 2   Giglio challenge is the extensive record evidence
 3   corroborating Armas’s testimony and independently
 4   implicating defendants in the crimes of conviction. Such
 5   independent evidence of guilt “increases the degree of
 6   significance that would need to be ascribed to the withheld
 7   impeachment evidence in order for it reasonably to undermine
 8   confidence in the verdict.” United States v. Orena, 145
 9   F.3d 551, 559 (2d Cir. 1998); accord Leka v. Portuondo, 257
10   F.3d 89, 104 (2d Cir. 2001); see also Avellino, 136 F.3d at
11   256-57.
12
13        2.  This Court reviews de novo the legal question
14   whether to dismiss an indictment based on outrageous
15   government misconduct. See United States v. Cuervelo, 949
16   F.2d 559, 567 (2d Cir. 1991). To establish a due process
17   violation on this ground, “a defendant must show that the
18   government’s conduct is ‘so outrageous that common notions
19   of fairness and decency would be offended were judicial
20   processes invoked to obtain a conviction.’” United States
21   v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (quoting
22   United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997)).
23   “[T]he sanction is so drastic that, especially where serious
24   criminal conduct is involved, it must be reserved for the
25   truly extreme cases.” United States v. Broward, 594 F.2d
26   345, 351 (2d Cir. 1979).
27
28        In Cuervelo,, this Court considered whether a hearing
29   was required to determine whether a government agent’s
30   sexual relationship with a defendant violated due process:
31
32       [A]t a minimum, the defendant must show: (1) that the
33       government consciously set out to use sex as a weapon
34       in its investigatory arsenal, or acquiesced in such
35       conduct for its own purposes upon learning that such a
36       relationship existed; (2) that the government agent
37       initiated a sexual relationship, or allowed it to
38       continue to exist, to achieve governmental ends; and
39       (3) that the sexual relationship took place during or
40       close to the period covered by the indictment and was
41       entwined with the events charged therein.
42
43   949 F.2d at 567. Here, the government agent had a sexual
44   relationship with a confidential witness. The agent’s




                                  4
 1   involvement did not impact the defendants’ prosecution to
 2   any significant degree.1
 3
 4        Nothing about the agent’s conduct in this case
 5   implicates the factors identified in Cuervelo: sex was not
 6   used as a weapon, was not acquiesced in by the Government,
 7   was not conducted to achieve governmental ends, and it did
 8   not take place during or close to the period covered by the
 9   indictment. In short, the conduct fails to rise to the
10   level of being “so outrageous that common notions of
11   fairness and decency would be offended were judicial
12   processes invoked to obtain such a conviction.” Al Kassar,
13   660 F.3d at 121. Accordingly, no hearing to further develop
14   the facts was necessary. See United States v. LaPorta, 46
15   F.3d 152, 160 (2d Cir. 1994) ("Nothing in Cuervelo requires
16   a district court to conduct a hearing every time a defendant
17   alleges outrageous government misconduct.”).
18
19        For the foregoing reasons, and finding no merit in
20   defendants’ other arguments, we hereby AFFIRM the judgment
21   of the district court.
22
23                              FOR THE COURT:
24                              CATHERINE O’HAGAN WOLFE, CLERK
25
26




         1
              Prior to trial, the Government identified the
     reports relevant to this case that were prepared by the
     agent. To avoid the need to call the agent as a trial
     witness, the Government agreed to stipulate to the contents
     of the reports in instances where a trial witness gave
     inconsistent testimony. A dispute over such a discrepancy
     never arose at trial.
                                  5
