16-4333-cr
United States v. Griffin

                                  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 7th day of November, two thousand nineteen.

PRESENT:             JOSÉ A. CABRANES,
                     JOSEPH F. BIANCO,
                                   Circuit Judges,
                     EDWARD R. KORMAN,
                                   District Judge. *


UNITED STATES OF AMERICA,

                             Appellee,                        16-4333-cr

                             v.

JAMES P. GRIFFIN,

                             Defendant-Appellant.


FOR APPELLEE:                                              Carina H. Schoenberger, Assistant United
                                                           States Attorney, for Grant C. Jaquith.,
                                                           United States Attorney, Northern District
                                                           of New York, Syracuse, NY.



     *
    Judge Edward R. Korman, of the United States District Court for the Eastern District of New
York, sitting by designation.

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FOR DEFENDANT-APPELLANT:                                     Tina Schneider, Law Office of Tina
                                                             Schneider, Portland, ME.

      Appeal from a December 16, 2016 judgment of the United States District Court for the
Northern District of New York (Frederick J. Scullin, Jr., Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Defendant-Appellant James Griffin (“Griffin”) appeals from a December 16, 2016 judgment
convicting him, following a jury trial, of ten counts of mail fraud, eight counts of wire fraud, and five
counts of money laundering. The District Court sentenced Griffin principally to 60 months’
imprisonment and ordered him to pay $2,153,530.93 in restitution to 27 victims. On appeal, Griffin,
through counsel, disputes the District Court’s denial of his pretrial motions for a trial continuance
and the calculation of the restitution amount. In addition, in two pro se submissions, Griffin
challenges the sufficiency of the evidence presented at trial to prove his intent to defraud the 27
victims and argues that law enforcement and prosecutors engaged in governmental misconduct
against him. We assume the parties’ familiarity with the underlying facts, procedural history of the
case, and issues on appeal.

        I.      Denial of the Continuance

         We review a District Court’s denial of a motion to postpone a trial date for “abuse of
discretion” and “we will find no such abuse unless the denial was an arbitrary action that
substantially impaired the defense.” United States v. Stringer, 730 F.3d 120, 127 (2d Cir. 2013) (internal
quotation marks omitted). In other words, “[a] defendant must show ‘both arbitrariness and
prejudice in order to obtain reversal of the denial of a continuance.’” Id. at 128 (quoting United States
v. Miller, 626 F.3d 682, 690 (2d Cir. 2010)).

         Griffin argues that the District Court abused its discretion in denying his requests to
postpone the trial date by 60-90 days for health reasons. Specifically, Griffin explains that, shortly
before the trial, he had been diagnosed with “active Rheumatoid Arthritis, triggering acute fatigue,
pain, swelling and dizziness.” Appellant Br. at 13. Among other things, Griffin expressed his
concerns regarding his ability to assist in the preparation of his defense and provided a letter from
his treating rheumatologist in support of his motion for a continuance.

        Griffin made the request on three separate occasions. The District Court denied the first two
requests by text order without a hearing or any explanation. At the final pretrial conference, the
District Court once again denied Griffin’s request for a continuance, after declining to talk to
Griffin’s physician and stating in passing, “I’ve seen what you submitted, it’s not sufficient to

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adjourn the trial any more.” Appellant App’x at 38. Notably, the District Court did not explain why
the submissions were insufficient to support a continuance or why it was satisfied that Griffin’s due
process and Sixth Amendment right to the effective assistance of counsel would be adequately
protected, notwithstanding Griffin’s stated concerns to the contrary.

        Admittedly, Griffin has pointed to various facts in the record that support his claim that the
District Court’s denial of the continuance was in fact arbitrary. But even assuming, for the sake of
argument only, that the District Court arbitrarily denied Griffin’s requests for a continuance, Griffin
has not demonstrated that the denial of his requests “substantially impaired [his] defense.” Stringer,
730 F.3d at 127 (internal quotation mark and citation omitted).

         Griffin does not argue that his health problems affected his defense in any specific way, let
alone “substantially impaired” it. Id. Specifically, Griffin does not explain how, if at all, he was
unable to prepare for trial or assist his counsel. Nor does Griffin argue that his participation at trial
in fact was affected. To the contrary, Griffin met with his counsel several times and testified at
length during the trial, where his counsel was able to cross-examine the witnesses and challenge
evidence in Griffin’s defense. Furthermore, Griffin did not ask for any breaks or accommodations
during the seven-day trial. Cf. United States v. Knohl, 379 F.2d 427, 437 (2d Cir. 1967) (holding that
denial of motion for a hearing on physical capacity of defendant to stand trial was not an abuse of
discretion because, among other things, there was no evidence that the defendant “suffer[ed] any ill
effects from the trial or was unable to assist his counsel in his defense,” nor was there a “request for
a recess or rest period” or “extra time sought for consultation”).

         Although Griffin suggests that his health problems would have compromised “his ability
both in advance of trial and at trial to focus, recount relevant events, challenge evidence, and in
general assist defense counsel,” Appellant Br. at 17, Griffin does not point to anything in the record
supporting this conclusory assertion. Contrary to Griffin’s mistaken belief that “no specific showing
of prejudice is required,” id., we have stated clearly that “[a] defendant must show ‘both arbitrariness
and prejudice in order to obtain reversal of the denial of a continuance.’” Stringer, 730 F.3d at 128
(emphasis added) (quoting Miller, 626 F.3d at 690). Because Griffin failed to meet his burden to
show any prejudice, we hold that there was no “abuse of discretion” in the denial of Griffin’s motion
for a continuance.

        II.     Calculation of Restitution Amounts

        Under the Mandatory Victim Restitution Act (“MVRA”), district courts must “order . . . that
the defendant make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1). “Ordinarily,
we review a district court’s order of restitution under the MVRA for abuse of discretion,” but where
“a defendant fails to object to the restitution order at the time of sentencing, our review is for plain
error.” United States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012) (citations omitted). However, where, as
here, a defendant “consciously refrains from objecting [to the restitution order] as a tactical matter,

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then that action”—namely, the conscious decision not to object—“constitutes a true ‘waiver,’ which
will negate even plain error review.” United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995);
accord United States v. Olano, 507 U.S. 725, 733 (1993) (describing waiver as the “intentional
relinquishment or abandonment of a known right,” which is not subject to review on appeal)
(internal quotation marks omitted).

        On appeal, Griffin argues that the restitution amounts in the presentence report that was
accepted by the Court contain arithmetical errors, overstate investment amounts by certain victims,
understate charitable contributions, and understate payments received by victims who invested in
Griffin’s fraudulent scheme. Griffin also argues in passing that because he “objected to the
calculation of loss at sentencing . . . this Court’s review [of the restitution order] is for harmless
error.” Appellant Br. at 18.

        We disagree with Griffin’s characterization of the record and conclude that he waived his
challenge to the District Court’s restitution order. Specifically, Griffin fails to mention two
important facts that are fatal to his claim on appeal.

         First, Griffin did not make any of these challenges at the time of his sentencing. Rather, at
his sentencing hearing, Griffin only highlighted the “question” of whether a certain investment
should have been accounted for a potential tax deduction. Appellant App’x at 41. Other than
“bring[ing]” this “point up to the Court[’s attention],” id. at 43—a point that Griffin did not press
further at the sentencing and did not raise on appeal—Griffin did not make any other arguments
relating to the restitution amounts in the presentence report. As a result, the District Court did not
have an “opportunity to consider and resolve” the various objections that are now raised on appeal.
Puckett v. United States, 556 U.S. 129, 134 (2009).

        Second, Griffin’s counsel met with the probation officer, counsel for the Government, and
the case agent who testified about restitution at trial to discuss Griffin’s sentencing memorandum,
which objected to the amounts set forth in the initial presentence report. Griffin ultimately agreed to
the figures in the revised presentence report—an agreement that was acknowledged by the Court at
the sentencing hearing and was not disputed by Griffin at any point. Appellant App’x at 40 (District
Court noting that the parties “have resolved the differences as to the restitution . . . .”); id. at 43
(District Court stating that it is “going to accept the presentence investigation report [and] its factual
information . . . as stated,” to which Griffin’s counsel responded, “Thank you, Judge”). In light of
the parties’ effective agreement to the restitution amounts in the presentence report, the Court
properly accepted those amounts and ordered restitution to the victims accordingly.

        Griffin made a deliberate and arguably tactical decision to accept the restitution amounts in
the revised presentence report. Griffin cannot now argue on appeal that the restitution order that he
agreed to was in error. “Since [Griffin] and his counsel were both given the opportunity to raise any


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factual errors contained in the report at the time of sentencing, [Griffin] has waived the right to raise
them at this time.” United States v. Feigenbaum, 962 F.2d 230, 233 (2d Cir. 1992).

        III.    Griffin’s Pro Se Challenge to His Conviction

        In his pro se briefs, Griffin argues, among other things, that: (1) he lacked the requisite mens
rea to have been found guilty of the various counts of fraud and money laundering; and (2) law
enforcement and the prosecution engaged in governmental misconduct by launching an “attack” on
his company and attempting to manufacture a crime to convict him. Pro Se Br. at 6.

         Although we “liberally construe” Griffin’s briefs, “reading such submissions to raise the
strongest arguments they suggest,” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir.
2017) (citation omitted), and afford him “some latitude in meeting the rules governing litigation,”
Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (citations omitted), we usually do not decide issues
that a defendant raises only in passing, see Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139,
142 n.4 (2d Cir. 2013) (explaining that pro se litigant “waived any challenge” to the district court’s
adverse ruling because brief mentioned ruling only “obliquely and in passing”); see also United States v.
Botti, 711 F.3d 299, 313 (2d Cir. 2013) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” (citation
omitted)).1

        Here, Griffin only asserts in passing that he is “not guilty” and that he lacked the requisite
intention to commit the charged crimes. Pro Se Br. at 2. Similarly, Griffin only accuses the
government of misconduct, but does not explain what kind of relief he seeks on appeal—
particularly, since Griffin did not file a pretrial motion for dismissal of the indictment on grounds of
prosecutorial misconduct, as is typically done pursuant to Federal Rule of Criminal Procedure
12(b)(3)(A). We conclude that these conclusory assertions are insufficient to challenge Griffin’s
conviction on appeal and thus hold that the any such challenge was waived. See Gerstenbluth, 728 F.3d
at 142 n.4.

        In any event, we also hold that Griffin’s pro se challenge to his conviction is meritless. With
respect to the claim of insufficiency of the evidence, the Supreme Court has stated that a conviction
must be upheld if “any rational trier of fact could have found the elements of a crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted). Where, as here,
the defendant did not renew his motion for acquittal at the close of the defense case, the defendant


1
  Although Griffin is represented by counsel of record in this appeal, we need not decide whether
Griffin’s pro se submissions are entitled to the more deferential construction that we extend to pro se
litigants because we conclude that, even under this deferential standard, Griffin’s challenge to his
conviction was waived or, in the alternative, lacks merit.

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“has the burden of persuading a court of appeals on the insufficiency issue that there has been plain
error or manifest injustice.” United States v. Finley, 245 F.3d 199, 202 (2d Cir. 2001) (citation omitted).
Moreover, we “evaluate his sufficiency of the evidence challenge based on the entire record.” United
States v. Velasquez, 271 F.3d 364, 372 (2d Cir. 2001). Under the circumstances presented and upon
review of the record, we agree with the Government that a reasonable juror could infer from the
evidence presented at trial that Griffin had the requisite intent to defraud investors by making false
promises and intentionally misleading them regarding the status of their investments and anticipated
returns. Accordingly, we hold that Griffin has failed to meet his heavy burden of showing plain error
or manifest injustice.

        With respect to his claim of governmental misconduct, Griffin does not present any
evidence to support his allegations. Griffin’s complaints merely illustrate his disagreement with the
Government’s investigation and prosecution of his fraudulent scheme. Accordingly, we reject
Griffin’s challenge to his conviction based on an unsupported claim of “outrageous governmental
conduct” that was not timely raised. United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir. 2001).

                                            CONCLUSION

        We have reviewed all of the arguments raised by Griffin on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the December 16, 2016 judgment of the
District Court.


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




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