     14-152(L)
     United States v. Rutigliano, Lesniewski, Baran

                          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 22nd day of June, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                              Circuit Judges,
 9                ELIZABETH A. WOLFORD,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                     Appellee,
15
16                          -v.-                                  14-152(L), 14-759,
17                                                                14-1339
18       JOSEPH RUTIGLIANO, PETER J.
19       LESNIEWSKI, MARIE BARAN,
20                     Defendants-Appellants.**
21       - - - - - - - - - - - - - - - - - - - -X
22


                *
               The Honorable Elizabeth A. Wolford, of the United
         States District Court for the Western District of New York,
         sitting by designation.
                **
                The Clerk of Court is respectfully directed to amend
         the official caption as set forth above.
 1   FOR APPELLANT RUTIGLIANO:   JOSEPH W. RYAN, JR., Melville,
 2                               New York.
 3
 4   FOR APPELLANT LESNIEWSKI:   JOHN D. CLINE, San Francisco,
 5                               California.
 6
 7   FOR APPELLANT BARAN:        ANNE J. D’ELIA, Kew Gardens, New
 8                               York.
 9
10   FOR APPELLEE:               DANIEL B. TEHRANI (with Nicole
11                               Friedlander and Michael A. Levy,
12                               on the brief), for Preet
13                               Bharara, United States Attorney
14                               for the Southern District of New
15                               York.
16
17        Appeal from judgments of the United States District
18   Court for the Southern District of New York (Marrero, J.).
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the judgments of the district court be
22   AFFIRMED.
23
24        Joseph Rutigliano, Peter J. Lesniewski, and Marie Baran
25   appeal from judgments of conviction entered, following a
26   jury trial, in the United States District Court for the
27   Southern District of New York (Marrero, J.). A separate
28   opinion issued simultaneously with this summary order
29   decides challenges premised on venue, the statute of
30   limitations, and instructions given to the jury. We assume
31   the parties’ familiarity with the underlying facts, the
32   procedural history, and the issues presented for review.
33
34        The defendants were convicted of (variously) conspiracy
35   to commit mail fraud, wire fraud, and health care fraud, as
36   well as substantive counts of these offenses, and making
37   false statements, in this case of a decades-long scheme to
38   defraud the United States Railroad Retirement Board (“RRB”)
39   into awarding fraudulent disability annuity payments to Long
40   Island Railroad (“LIRR”) retirees.
41
42   A.   Evidentiary Challenges
43        Defendants raise numerous evidentiary challenges.
44   Specifically they argue that the court abused its discretion
45   by: (i) limiting the testimony of Lesniewski’s proposed
46   expert, Dr. Julian Freeman; (ii) allowing the government’s

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 1   expert to testify about Lesniewski’s diagnosis of Rutigliano
 2   and to provide his opinion that if Rutigliano suffered
 3   disabling conditions as diagnosed, he would not have been
 4   able to play golf; (iii) precluding Lesniewski from offering
 5   statements he argued were admissible pursuant to Fed. R.
 6   Evid. 106; (iv) permitting the government to introduce
 7   charts comparing disability applications prepared by
 8   Rutigliano for himself and others, and charts showing the
 9   disparity in disability rates at the LIRR and Metro-North
10   Railroad; (v) permitting evidence of Rutigliano’s post-
11   retirement golfing; and (vi) admitting evidence that
12   Rutigliano failed to report his “consulting” income.
13
14        We review the district court’s evidentiary rulings for
15   abuse of discretion, and find none. See United States v.
16   Persico, 645 F.3d 85, 99 (2d Cir. 2011).
17
18        1.   Limitations on Lesniewski’s Expert’s Testimony
19        The district court’s limitations on Dr. Freeman’s
20   testimony were a proper exercise of its gatekeeping
21   function, Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d
22   256, 266 (2d Cir. 2002), and certainly not an abuse of
23   discretion, United States v. Cruz, 363 F.3d 187, 192 (2d
24   Cir. 2004). See United States v. Dupre, 462 F.3d 131, 137
25   (2d Cir. 2006) (“[T]he admission of expert testimony is not
26   an abuse of discretion unless it is manifestly erroneous.”
27   (internal quotation mark omitted)). And the court properly
28   excluded testimony that would have required or permitted Dr.
29   Freeman to opine on legal questions. See United States v.
30   Bilzerian, 926 F.2d 1285, 1295 (2d Cir. 1991).
31
32        2.   The Government’s Expert Witness
33        The district court did not abuse discretion in
34   admitting the government’s expert testimony, or in denying a
35   separate hearing pursuant to Daubert v. Merrell Dow Pharms.,
36   Inc., 509 U.S. 579 (1993). See United States v. Williams,
37   506 F.3d 151, 161-62 (2d Cir. 2007) (concluding court
38   engaged in relevant inquiry in admitting evidence and
39   decision not to hold separate, formal Daubert hearing was
40   not an abuse of discretion). As the district court
41   observed, the fact that the government’s expert did not
42   examine Rutigliano goes only to the weight the expert’s
43   testimony should be afforded, not to its admissibility. See
44   Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.
45   1996) (per curiam) (“[C]ontentions that the [expert’s]
46   assumptions are unfounded go to the weight, not the


                                  3
 1   admissibility, of the testimony” (internal quotation marks
 2   omitted)).
 3
 4        3.   The Rule of Completeness Challenge
 5        The district court committed no abuse of discretion in
 6   ruling that portions of Lesniewski’s prior statements he
 7   sought to introduce, “as offered by him, [were] inadmissible
 8   hearsay.” United States v. Jackson, 180 F.3d 55, 73 (2d
 9   Cir. 1999). “[A]n omitted portion of a statement must be
10   placed in evidence if necessary to explain the admitted
11   portion, to place the admitted portion in context, to avoid
12   misleading the jury, or to ensure fair and impartial
13   understanding of the admitted portion.” Id. (internal
14   quotation marks omitted). The statements at issue were not
15   necessary “to avoid misleading the trier of fact.” United
16   States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). The
17   exclusion of the disputed statements as post-hoc
18   explanations for Lesniewski’s conduct was therefore a
19   permissible exercise of discretion. See United States v.
20   Kozeny, 667 F.3d 122, 139 (2d Cir. 2011) (“[T]he rule of
21   completeness does not require that the entire memo be
22   admitted because [after-the-fact] legal analysis,
23   recollection and understandings are not relevant.”).
24
25        4.   Rutigliano’s Challenge to the Government’s Charts
26        The district court allowed the government to introduce
27   charts comparing disability rates at the LIRR and Metro-
28   North, and charts showing similarities in disability
29   applications prepared by Rutigliano. “This court has long
30   approved the use of charts in complex trials.” United
31   States v. Casamento, 887 F.2d 1141, 1151 (2d Cir. 1989); see
32   also United States v. Pinto, 850 F.2d 927, 935-36 (2d Cir.
33   1988) (approving government’s use of summary charts at
34   trial). And the charts at issue cleared the low bar for
35   relevance. See United States v. Al-Moayad, 545 F.3d 139,
36   176 (2d Cir. 2008). Disparities between disability rates at
37   the two railroads and the cookie-cutter nature of the
38   disability claims both tended to support the government’s
39   theory at trial. See United States v. Abu-Jihaad, 630 F.3d
40   102, 132 (2d Cir. 2010). As the district court observed,
41   the charts were “straightforward compilation[s]” based on
42   records provided to the defense. Trial Tr. at 1503, United
43   States v. Rutigliano, No. 11-cr-1091, (S.D.N.Y. 2013).
44




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 1        5.   The Golf Evidence
 2        The district court admitted evidence that Rutigliano
 3   routinely played golf after his retirement, when he was
 4   supposedly permanently disabled. Rutigliano argues that
 5   this evidence was substantially more prejudicial than
 6   probative. Fed. R. Evid. 403. The district court committed
 7   no abuse of discretion: The golf evidence was highly
 8   probative of Rutigliano’s fraud, and the court could
 9   reasonably have concluded that it would not tend to “lure
10   the factfinder into declaring guilt on a ground different
11   from proof specific to the offense charged.” United States
12   v. Massino, 546 F.3d 123, 132 (2d Cir. 2008) (per curiam)
13   (internal quotation mark omitted); see also United States v.
14   Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995) (“Generally
15   speaking, any proof highly probative of guilt is prejudicial
16   to the interests of that defendant.”).
17
18        6.   Rutigliano’s “Consulting” Income
19        The district court admitted evidence that Rutigliano
20   failed to report income from his “consulting” services. The
21   government argued that this evidence was admissible as
22   “inextricably intertwined” with the evidence regarding the
23   charged offense. Decision and Order, United States v.
24   Lesniewski, 11-cr-01091, Dkt. No. 462, at 19 (S.D.N.Y. July
25   12, 2013) (quoting United States v. Quinones, 511 F.3d 289,
26   309 (2d Cir. 2007) (internal quotation marks omitted)). The
27   court agreed, explaining that Rutigliano’s failure to report
28   his income “helps complete the story” of his fraud “because
29   any record (or lack thereof) of [his consulting] income is
30   arguably intertwined with his claimed ‘total and permanent’
31   disability and his statements that he had not in fact
32   worked.” Id. at 19-20. The court added that the evidence
33   was admissible as probative of “intent, plan, knowledge, and
34   absence of mistake or accident.” Id. at 21. Finally, the
35   court rejected Rutigliano’s Rule 403 challenge to the
36   evidence “[g]iven the high degree of relevance of the
37   material in question.” Id. The court’s reasoning supports
38   its exercise of discretion.
39
40   B.   The Bruton Challenge
41        Rutigliano asserts that the court violated his rights
42   under United States v. Bruton, 391 U.S. 123 (1968), by
43   admitting an inculpatory statement made by Lesniewski to law
44   enforcement agents. “We review alleged violations of the
45   Confrontation Clause de novo, subject to harmless error
46   analysis.” United States v. Jass, 569 F.3d 47, 55 (2d Cir.
47   2009) (internal quotation marks and alterations omitted).

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 1
 2        Rutigliano concedes Lesniewski’s inculpatory statement
 3   made no mention of him. Because the “jury would have had to
 4   rely on other trial evidence” (rather than Lesniewski’s
 5   statement by itself) to connect it to Rutigliano, there was
 6   no Bruton violation. Id. at 62; see also United States v.
 7   Lee, 549 F.3d 84, 97 n.1 (2d Cir. 2008).1
 8
 9   C.   The Joinder Challenge
10        Rutigliano argues that his motion for severance should
11   have been granted because there was no temporal link or
12   common plan among the codefendants. He cites as prejudice
13   his subjection to a lengthy trial rather than the short,
14   straightforward one that (he speculates) he would have had
15   absent joinder. “We review the propriety of joinder de novo
16   . . . and where joinder should not have been permitted, a
17   conviction must be reversed unless failure to sever was
18   harmless error.” United States v. Rittweger, 524 F.3d 171,
19   177 (2d Cir. 2008) (internal quotation marks omitted).
20
21        Federal Rule of Criminal Procedure 8(b) allows joinder
22   of defendants “if they are alleged to have participated in
23   the same act or transaction, or in the same series of acts
24   or transactions, constituting an offense or offenses.” Fed.
25   R. Crim. P. 8(b). “We have interpreted the ‘same series of
26   acts or transactions’ language of Rule 8(b) to mean that
27   joinder is proper where two or more persons’ criminal acts
28   are unified by some substantial identity of facts or
29   participants, or arise out of a common plan or scheme.”
30   Rittweger, 524 F.3d 177 (some internal quotation marks
31   omitted). “[W]e also apply a commonsense rule to decide
32   whether, in light of the factual overlap among charges,
33   joint proceedings would produce sufficient efficiencies such
34   that joinder is proper notwithstanding the possibility of
35   prejudice.” Id. (internal quotation marks omitted). This
36   standard was clearly satisfied here.
37




          1
           To the extent Rutigliano argues that the admission of
     Lesniewski’s statement required severance, this is not so.
     See United States v. Yousef, 327 F.3d 56, 150 (2d Cir. 2003)
     (finding “admission of the redacted statement did not
     violate the Bruton doctrine” and affirming denial of
     severance).
                                  6
 1   D.   The Sufficiency of the Evidence
 2        Rutigliano challenges the sufficiency of evidence that
 3   he conspired with: (i) Lesniewski to create his fraudulent
 4   claim for benefits; (ii) James Maher or Christopher
 5   Parlante, retired LIRR employees who testified for the
 6   prosecution, to falsify their claims; or (iii) Maher or
 7   Parlante to submit false re-certifications of their claimed
 8   disabilities. Rutigliano cannot sustain his “heavy burden”
 9   because, viewing the evidence in the light most favorable to
10   the government, Kozeny, 667 F.3d at 139-40, it was
11   sufficient for a rational jury to conclude that there was a
12   conspiracy to defraud the RRB, and that Rutigliano
13   participated in the conspiracy both as a claimant and as a
14   “facilitator” of other employees’ fraudulent claims. To the
15   extent Rutigliano argues that there was no evidence of
16   express agreements among the codefendants, no such proof is
17   required. See United States v. Amiel, 95 F.3d 135, 144 (2d
18   Cir. 1996).
19
20   E.   The Sentencing Challenges
21        Rutigliano argues that the district court erred in
22   denying his request for a hearing pursuant to United States
23   v. Fatico, 603 F.2d 1053 (2d Cir. 1979), to challenge the
24   loss attributable to him, which impacted his term of
25   incarceration and the restitution imposed. He also
26   challenges the procedural reasonableness of his sentence.
27   Baran challenges the loss attributed to her, and the
28   substantive reasonableness of her sentence.
29
30        There is no per se right to a Fatico hearing, and trial
31   courts enjoy broad discretion in determining what procedures
32   to employ at sentencing. See United States v. Prescott, 920
33   F.2d 139, 144 (2d Cir. 1990). We review the sentences for
34   reasonableness, under a deferential abuse-of-discretion
35   standard. United States v. Gilliard, 671 F.3d 255, 258 (2d
36   Cir. 2012).
37
38        After a conference, the court properly denied
39   Rutigliano’s request for a Fatico hearing. The court
40   concluded that Rutigliano was “raising issues litigated at
41   the trial and some of them determined by the court in
42   preparation for the trial, and [Rutigliano was] asking
43   essentially for [the court] to have another trial on some of
44   these issues, and [the court was] not going to do that.”
45   Gov’t Supplemental App. at 37-37.
46
47

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 1        The Sentencing Guidelines base the offense level in
 2   part on the amount of loss caused by the offense; and loss
 3   is defined generally as “the greater of actual loss or
 4   intended loss.” U.S.S.G. § 2B1.1(b)(1) & cmt. n.3(A). As
 5   recognized by the district court, a sentencing judge need
 6   only make a “reasonable estimate” in calculating the loss
 7   amount. Id. cmt. n.3(c). And, the loss need only be
 8   determined by a preponderance of the evidence. See United
 9   States v. Norman, 776 F.3d 67, 76-77 (2d Cir. 2015).
10
11        The court committed no procedural error in determining
12   the loss attributable to the defendants. Cf. United States
13   v. Bryant, 128 F.3d 74, 76 (2d Cir. 1997) (“[I]t is
14   permissible for the sentencing court, in calculating a
15   defendant’s offense level, to estimate the loss resulting
16   from his offenses by extrapolating the average amount of
17   loss from known data and applying that average to
18   transactions where the exact amount of loss is unknown.”).
19
20        Rutigliano’s challenge to the restitution order--based
21   on a finding of actual loss--is also without merit, as it is
22   premised on his erroneous theory that the RRB made
23   independent determinations with respect to disability
24   applications.
25
26        Baran’s challenge to the substantive reasonableness of
27   her 60-month sentence is without merit. The sentence was 48
28   months below the low-end of the Guidelines and cannot be
29   said to be “shockingly high” or “otherwise unsupportable as
30   a matter of law.” United States v. Dorvee, 616 F.3d 174,
31   183 (2d Cir. 2010) (internal quotation marks omitted).
32
33   F.   Ineffective Assistance of Counsel
34        Baran argues that she is entitled to a new trial
35   because she was afforded constitutionally ineffective
36   assistance of counsel. As in most cases, “a motion brought
37   under [28 U.S.C.] § 2255 is preferable to direct appeal for
38   deciding [Baran’s] claims of ineffective assistance.”
39   Massaro v. United States, 538 U.S. 500, 504 (2003); see also
40   United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004)
41   (stating district court “best suited” to developing facts
42   necessary to determining adequacy of representation
43   (internal quotation marks omitted)).
44

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 1                            *   *   *
 2
 3        For the foregoing reasons and for those stated in the
 4   opinion issued simultaneously with this summary order, and
 5   finding no merit in appellants’ other arguments, we hereby
 6   AFFIRM the judgments of the district court.
 7
 8                          FOR THE COURT:
 9                          CATHERINE O’HAGAN WOLFE, CLERK
10
11




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