United States v. Stitsky

10-2767-cr(L)
United States v. Stitsky

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 TO 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 17th day of October, two thousand thirteen.

PRESENT: REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
Appellee,

v. Nos. 10-2767-cr(L),
10-4426-cr(Con)
IRVING STITSKY, MARK ALAN SHAPIRO,
Appellants.

----------------------------------------------------------------------

APPEARING FOR APPELLANTS: JAMES M. BRANDEN, ESQ., New York,
New York, for Irving Stitsky.

KATHERINE ALFIERI, ESQ., New York,
New York, for Mark Alan Shapiro.

*
The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
APPEARING FOR APPELLEE: MARC P. BERGER (Emil J. Bove, III, Michael
A. Levy, on the brief), Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, New York.

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

of New York (Kimba M. Wood, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments entered on July 7, 2010, and October 25, 2010, are

AFFIRMED.

Defendants Irving Stitsky and Mark Alan Shapiro, who were found guilty after a jury

trial on substantive and conspiratorial counts of securities fraud, mail fraud, and wire fraud,

see 15 U.S.C. §§ 78j(b), 78ff; 18 U.S.C. §§ 371, 1341, 1343, appeal their convictions and

85-year prison sentences on numerous grounds discussed herein.1 We assume the parties’

familiarity with the underlying facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1. Challenges to Indictment

a. Constructive Amendment and Prejudicial Variance

Defendants argue that testimony about investors who did not purchase “Units” in

certain limited liability companies formed by defendants’ real estate company, Cobalt Capital

1
Although Stitsky and Shapiro submitted separate briefs on appeal, Stitsky has joined
in Shapiro’s briefs. See Fed. R. App. P. 28(i). Thus, our resolution of Shapiro’s arguments
applies to Stitsky as well.

2
Company (“Cobalt”), but rather invested with Cobalt through other means, constituted a

constructive amendment of or a prejudicial variance from the indictment. On de novo

review, see United States v. D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012), we reject

defendants’ claim as without merit.

To establish constructive amendment, defendants must show that the trial evidence

or jury instructions “so altered an essential element of the charge that, upon review, it is

uncertain whether the defendant was convicted of conduct that was the subject of the grand

jury’s indictment.” United States v. Rigas, 490 F.3d 208, 227 (2d Cir. 2007) (internal

quotation marks omitted). “Where a generally framed indictment encompasses the specific

legal theory or evidence used at trial, there is no constructive amendment.” Id. at 228

(alteration and internal quotation marks omitted). “[W]e have consistently permitted

significant flexibility in proof, provided that the defendant was given notice of the core of

criminality to be proven at trial.” Id. (emphasis in original; footnote and internal quotation

marks omitted). A constructive amendment is a per se violation of the Grand Jury Clause of

the Fifth Amendment, which requires reversal. See id. at 226. By contrast, a variance

“occurs when the charging terms of the indictment are left unaltered, but the evidence offered

at trial proves facts materially different from those alleged in the indictment.” Id. (internal

quotation marks omitted). “A defendant alleging variance must show substantial prejudice

to warrant reversal.” Id. (internal quotation marks omitted).

While the two substantive securities fraud counts of the indictment were specifically

limited to the purchase of Units, the conspiracy, wire fraud, and mail fraud counts were not

3
so limited. Indeed, the conspiracy counts charge that defendants engaged in a broad “scheme

to defraud investors by soliciting millions of dollars of funds under false pretenses, failing

to invest investors’ funds as promised, and misappropriating and converting investors’ funds

to their own benefit and the benefit of others without the knowledge or authorization of the

investors.” Superseding Indict. ¶¶ 13, 40, 42. Those counts further charge that defendants

fraudulently induced victims to invest with Cobalt by utilizing a number of deceptive means,

such as “(a) misrepresenting Cobalt’s operating history; (b) failing to inform prospective

investors that Cobalt was owned and controlled by [defendants], both convicted felons; and

(c) misrepresenting and causing others to misrepresent to prospective investors Cobalt’s

purported ownership interests in certain properties.” Id.

The testimony by two of the witnesses at issue, Stanley Gruber and Charles Agule,

related to Shapiro’s fraudulent inducement of investors to purchase certain partnership

interests in Cobalt using the same deceptive means alleged in the indictment.2 The testimony

of the third witness at issue, Steven May, a Washington Mutual loan officer, described

Shapiro’s use of a false financial statement in an effort to secure a $5 million loan on behalf

of Cobalt and his failure to disclose his prior conviction in connection with his loan

application. The fraudulent acts described by these witnesses, although not specifically

identified in the indictment as overt acts in furtherance of the scheme to defraud, “fall[]

2
Gruber invested $900,000 in Cobalt. Agule, Cobalt’s lawyer, testified to an
investment agreement that he executed with Louis Pappas, pursuant to which Pappas invested
$2 million in Cobalt. Pappas did not testify at trial due to a recent surgery.

4
squarely within the charged scheme,” and thus their testimony did not constructively amend

the conspiracy, wire fraud, and mail fraud counts. United States v. Salmonese, 352 F.3d 608,

621 (2d Cir. 2003) (concluding that there was no constructive amendment where prosecution

proved “unalleged overt acts” in furtherance of charged scheme); see United States v. Dupre,

462 F.3d 131, 140–41 (2d Cir. 2006) (holding that prosecution did not constructively amend

indictment “because the evidence at trial concerned the same elaborate scheme to defraud

investors as described in the indictment”).3

Nor did this testimony amount to a prejudicial variance in the proof on those counts,

especially as defendants were on notice prior to trial of the substance of the witnesses’

testimony. See United States v. Salmonese, 352 F.3d at 621–22 (stating that variance is not

prejudicial where pleading and proof “substantially correspond,” variance could not have

misled defendant at trial, and variance would not deprive accused of protection against

double jeopardy).

3
For this reason, defendants’ argument that the district court abused its discretion in
admitting this testimony as “other act” evidence pursuant to Fed. R. Evid. 404(b) is meritless.
See United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (“[E]vidence of uncharged
criminal activity is not considered other crimes evidence under Fed. R. Evid. 404(b) if it
arose out of the same transaction or series of transactions as the charged offense, if it is
inextricably intertwined with the evidence regarding the charged offense, or if it is necessary
to complete the story of the crime on trial.” (internal quotation marks omitted)); United States
v. Thai, 29 F.3d 785, 812 (2d Cir. 1994) (“When the indictment contains a conspiracy charge,
uncharged acts may be admissible as direct evidence of the conspiracy itself.”); United States
v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992) (“An act that is alleged to have been done
in furtherance of the alleged conspiracy, however, is not an ‘other’ act within the meaning
of Rule 404(b); rather, it is part of the very act charged.”).

5
 Further, the district court properly instructed the jury that defendants could not be

convicted on the substantive securities fraud counts based on the testimony of Gruber and

May. Thus, their testimony does not support a constructive amendment or prejudicial

variance claim on those counts. See United States v. Williams, 690 F.3d 70, 77 (2d Cir.

2012) (presuming “that jurors follow their instructions”). Defendants did not request a

limiting instruction with respect to Agule’s testimony. But considering the limited nature of

his testimony, and defense counsel’s unrebutted summation argument that his testimony

could not support conviction on the substantive securities fraud counts, any error in the

district court’s failure sua sponte to provide a limiting instruction does not manifest plain

error warranting reversal. See United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (setting

forth plain error criteria); United States v. Desimone, 119 F.3d 217, 225 (2d Cir. 1997)

(applying plain error review where “trial court failed to give a jury instruction that was not

specifically requested”).

b. Multiplicity

Defendants contend that the two substantive securities fraud counts were

multiplicitous. We review this unpreserved claim for plain error, see United States v.

Marcus, 130 S. Ct. at 2164, which we do not identify here.

“An indictment is multiplicitous when a single offense is alleged in more than one

count.” United States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006) (internal quotation marks

omitted). “A claim of multiplicity cannot succeed, however, unless the charged offenses are

the same in fact and in law.” Id. (internal quotation marks omitted).

6
 Here, each securities fraud count charged defendants with the sale of separate

securities: count two alleged fraud in the sale of Units in Cobalt Capital Partners I, LLC

(“CCP”), while count three charged fraud in the sale of Units in Cobalt Multifamily Investors

I, LLC (“CMF”). Because transactions in separate securities constitute separate offenses, the

counts are not multiplicitous. See United States v. Dioguardi, 492 F.2d 70, 83 (2d Cir. 1974)

(“[E]ach transaction in a securities fraud constitutes a separate offense.”); see also United

States v. Langford, 946 F.2d 798, 803 (11th Cir. 1991) (stating that “allowable unit of

prosecution” under 15 U.S.C. § 78j(b) is “any false statement of material fact in connection

with a discrete purchase or sale of a security”).

In urging otherwise, defendants argue that the CCP Units eventually merged into CMF

Units, and thus sale of the CCP Units constituted the same transaction as sale of the CMF

Units. The record, however, reflects that Cobalt offered CCP Unit holders the option to

convert their CCP Units to CMF Units; it does not reflect that the two securities were

identical. Thus, the separate sale of those securities supports separate fraud charges, and the

two securities fraud counts are not multiplicitous.

2. Evidentiary Challenges

a. Denial of Suppression

Defendants challenge the district court’s denial of Shapiro’s motion to suppress

evidence seized from Cobalt’s offices in Great Neck, New York and Springfield,

Massachusetts on December 1, 2005, pursuant to search warrants purportedly obtained on

false or incomplete information. They argue that the district court wrongfully denied them

7
a hearing on this claim. See United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (citing

Franks v. Delaware, 438 U.S. 154 (1978)) (recognizing defendant’s right to hearing if he can

make “substantial preliminary showing that a deliberate falsehood or statement made with

reckless disregard for the truth was included in the warrant affidavit and the statement was

necessary to the judge’s finding of probable cause” (internal quotation marks omitted)).

Insofar as it is an open question in this circuit whether we review the denial of a

Franks hearing de novo or for clear error, see id. at 126 n.21, we need not resolve that

question here because Shapiro’s challenge fails under even the more rigorous de novo

standard of review, see Hoffler v. Bezio, --- F.3d ----, 2013 WL 4016924, *6 (2d Cir. 2013).

To determine whether a misstatement or omission is necessary to the finding of

probable cause, i.e., whether it is material, we look to a hypothetical “corrected affidavit,”

produced by adding to the original warrant affidavit the omitted information highlighted by

defendants, as well as any other pertinent omitted information. United States v. Canfield,

212 F.3d 713, 718 (2d Cir. 2000). “If the corrected affidavit supports probable cause, the

inaccuracies were not material to the probable cause determination and suppression is

inappropriate.” Id.

The question of whether the corrected affidavit demonstrates probable cause is a legal

question that we review de novo. See id. Probable cause to search exists where

circumstances indicate a “fair probability that contraband or evidence of a crime will be

found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); see Florida v.

Harris, 133 S. Ct. 1050, 1055 (2013) (observing that probable cause is “practical,” “common-

sensical,” “all-things-considered” standard).

8
 Both the Great Neck and Springfield warrants were supported by the November 30,

2005 affidavit of FBI Special Agent Jennifer May.4 May’s affidavit was based on her

personal knowledge and on information obtained from (1) conversations with a cooperating

witness (“CW”), who had provided reliable information to law enforcement in the past; (2)

conversations with other law enforcement officers and witnesses; and (3) May’s review of

bank, telephone, and Cobalt business records. Based on this information, May stated that

there was probable cause to believe that, from approximately May 2004 to November 2005,

defendants engaged in a “boiler room” investment fraud scheme in which more than 50

people had been induced to invest more than approximately $10 million. She further stated

that there was probable cause to believe that evidence of this scheme was present at Cobalt’s

Great Neck and Springfield offices.

In support of her conclusion, May cited, inter alia, (1) phone records showing tens of

thousands of short-duration, long-distance telephone calls in a pattern that, based on her

training and experience, she believed was consistent with boiler room and cold-call

solicitation efforts frequently used in investment scams; (2) the omission of defendants’ true

positions at Cobalt and their prior criminal convictions from Cobalt’s July and December

2004 private placement memoranda (“PPM”); (3) a false statement in the December 2004

PPM that Shapiro received degrees from the University of Miami and Harvard University;

(4) a recording between the CW and Shapiro, in which Shapiro admitted that he was running

4
The affidavit of FBI Special Agent Christopher Dillon submitted in support of the
Springfield warrant incorporated May’s affidavit by reference.

9
Cobalt from a “tertiary position” because of “his personal situation,” May Aff. ¶ 21 (internal

quotation marks omitted); (5) a recording between the CW and Shapiro in which Shapiro

stated that his salesman would “say anything, do anything, [and] use anything” to sell

investments, id. ¶ 27 (alteration in original); (6) bank records indicating that Shapiro had

misappropriated investor funds for personal use; and (7) her training and experience that

individuals involved in fraudulent investment schemes maintain various records for

substantial periods of time evincing their operation of such schemes.

Despite these facts, defendants claim that when May’s affidavit is corrected to add

omitted facts regarding the CW—such as the nature of his past convictions, i.e., fraud and

perjury; the loss of his law license; and his alleged efforts to compete with Cobalt—probable

cause is negated. We disagree. May’s affidavit made clear that the CW had been convicted

of federal crimes. Moreover, the CW’s information about Cobalt was corroborated through

recordings and bank, business, and telephone records, and the CW was known to be reliable,

insofar as he had previously testified on behalf of the government in a case that led to a

conviction. Thus, the nature of the CW’s crimes and the other facts highlighted by

defendants would not have discredited the CW’s account of the fraudulent scheme so as to

defeat probable cause. See United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993) (stating

that “information provided by an informant from whom the government has received

consistently reliable information in the past is likely to be sufficiently reliable to establish

probable cause” and that informant’s entire account may be credited where “corroborated in

material respects”). The remaining misrepresentations and omissions alleged by defendants

10
raise de minimis issues that do not negate probable cause when included in a corrected

affidavit.

Because defendants have not identified any material misrepresentations in or

omissions from May’s affidavit that could negate probable cause, we identify no error in the

district court’s determination that Shapiro failed to make the substantial preliminary showing

necessary to justify a Franks hearing. Nor do we identify any error in its denial of Shapiro’s

motion to suppress.

b. Prior Convictions

Defendants argue that the district court erred in denying Shapiro’s motion in limine

under Fed. R. Evid. 403 and 404(b) to preclude the government from offering proof of their

prior convictions. We review the district court’s evidentiary rulings for abuse of discretion,

see United States v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006), and we identify no such

abuse here.

Rule 403 authorizes the exclusion of relevant evidence if its “probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. Rule

404(b) permits the admission of uncharged crimes, wrongs, or other acts for purposes other

than proving propensity. See Fed. R. Evid. 404(b); United States v. LaFlam, 369 F.3d 153,

156 (2d Cir. 2004) (adopting inclusionary approach to Rule 404(b) evidence).

In this case, defendants’ prior convictions were direct proof of the charged scheme to

defraud. Part of the government’s theory at trial was that defendants fraudulently induced

victims to invest in Cobalt by failing to disclose their leadership roles in the company and

11
their prior convictions, facts that investors would have considered material in making their

investment decisions. See Basic Inc. v. Levinson, 485 U.S. 224, 231–32 (1988) (stating that

omitted fact is material if reasonable investor would view it to have “significantly altered the

total mix of information made available” (internal quotation marks omitted)); see also United

States v. Abdulwahab, 715 F.3d 521, 533–34 (4th Cir. 2013) (upholding mail and securities

fraud convictions based in part on defendant’s failure to disclose his criminal history). Under

these circumstances, the district court acted well within its discretion in concluding that proof

of defendants’ prior convictions was more probative than prejudicial under Rule 403.

Moreover, because defendants’ prior convictions were direct evidence of the charged

offense, they were not subject to Rule 404(b). See United States v. Carboni, 204 F.3d 39,

44 (2d Cir. 2000); United States v. Thai, 29 F.3d 785, 812 (2d Cir.1994); United States v.

Concepcion, 983 F.2d 369, 392 (2d Cir.1992). Even if they were subject to that rule, though,

because they were offered for a purpose other than to prove propensity, the district court did

not abuse its discretion in admitting that evidence.5

c. Amato’s Testimony

In their pro se supplemental briefs, defendants challenge the admission of testimony

by Shapiro’s probation officer, Jennifer Amato, under Rules 403 and 404(b). Because

5
We likewise conclude that the district court did not abuse its discretion in denying
Shapiro’s motion to strike from the indictment the allegations that defendants had previously
been convicted of fraud. See Fed. R. Crim. P. 7(d); United States v. Mulder, 273 F.3d 91,
99–100 (2d Cir. 2001) (“Motions to strike surplusage from an indictment will be granted only
where the challenged allegations are not relevant to the crime charges and are inflammatory
and prejudicial.” (internal quotation marks omitted)).

12
defendants did not object to this testimony below, we review only for plain error, see United

States v. Marcus, 130 S. Ct. at 2164, which we do not identify here.

Amato testified that, under the terms of Shapiro’s supervised release, he was not

permitted to associate with other convicted felons without prior approval of his probation

officer. She further testified that Shapiro (1) did not inform her of his contact with Stitsky,

(2) failed to tell her about his employment at Cobalt prior to October 2004, and (3)

misrepresented certain other facts about his employment and financial holdings. Amato’s

testimony was evidence of Shapiro’s intent to defraud investors because it supported an

inference that Shapiro knew he was engaged in impermissible activities with Cobalt and,

therefore, deliberately failed to disclose his position and criminal history to investors. Under

these circumstances, Amato’s testimony was admissible under Rule 403. Further, because

her testimony was direct evidence of the charged conduct, see United States v. Carboni, 204

F.3d at 44, and offered for a purpose other than propensity, see United States v. LaFlam, 369

F.3d at 156, it presents no Rule 404(b) concern.

d. Limits on Cross-Examination

Defendants complain that the district court impermissibly limited the scope of their

cross-examination at trial of Special Agent Robert Lauria and former Cobalt employee

Jeffrey Clark. We review their preserved objection with respect to Clark’s testimony for

abuse of discretion, see United States v. Treacy, 639 F.3d 32, 42 (2d Cir. 2011), and their

unpreserved objection with respect to Lauria for plain error, see United States v. Marcus, 130

S. Ct. at 2164. Under either standard, however, we conclude that the district court did not

err.

13
 The limits at issue—the district court’s general instruction not to repeat direct

testimony on cross-examination, its preclusion of repetitive and argumentative questions to

Lauria, and its preclusion of questions to Clark about personal bankruptcies that would only

confuse the jury—all fell within the court’s discretion and did not violate the Sixth

Amendment’s Confrontation Clause. See United States v. Figueroa, 548 F.3d 222, 227 (2d

Cir. 2008) (recognizing district court may place “reasonable limits” on defense

cross-examination based on concerns such as harassment, prejudice, confusion of issues,

witness safety, or repetitive or irrelevant interrogation (internal quotation marks omitted)).

e. Mazzella Stipulation

Defendants’ Sixth Amendment challenge to stipulated testimony from FBI Financial

Analyst Joan Mazzella, who was ill and unable to testify, was not raised below. Here,

however, we do not review even for plain error because the stipulation effectively waived

defendants’ right of confrontation. See United States v. Plitman, 194 F.3d 59, 64 (2d Cir.

1999) (recognizing that “defense counsel may waive a defendant’s Sixth Amendment right

to confrontation where the decision is one of trial tactics or strategy that might be considered

sound”).

Mazzella’s testimony related to her conversion of voluminous bank records into

summary spreadsheets. Defendants claim that the spreadsheets contain errors about which

Mazzella should have been cross-examined, making counsel’s stipulation unsound. We are

not persuaded. Defendants fail to show that the errors could not have been effectively

14
exposed through other witnesses and arguments. Thus, even if we were not to find waiver,

we would identify no plain error.6

3. Jury Instructions

Defendants contend that the district court erred in failing to instruct the jury that actual

victim reliance on defendants’ material misrepresentations or omissions was necessary to

prove securities fraud. That argument is now foreclosed by United States v. Vilar, --- F.3d

----, 2013 WL 4608948, at *18–19 (2d Cir. 2013) (rejecting argument that government must

demonstrate actual reliance to prove securities fraud).

4. Sufficiency of the Evidence

Defendants claim that trial evidence was insufficient to satisfy the fraudulent intent

element of each count of conviction. See United States v. Novak, 443 F.3d 150, 156 (2d Cir.

2006) (stating that mail fraud requires proof that defendant had fraudulent intent and

“contemplated” or “intended” some harm to victims (internal quotation marks omitted));

United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (same for wire fraud); SEC v.

First Jersey Sec., Inc., 101 F.3d 1450, 1467 (2d Cir. 1996) (stating that “[s]cienter, as used

in connection with the securities fraud statutes, means intent to deceive, manipulate, or

defraud”). A defendant raising a sufficiency challenge “bears a heavy burden because a

reviewing court must consider the evidence ‘in the light most favorable to the prosecution’

6
We do not, however, foreclose defendants from pursuing an ineffective assistance
of counsel challenge on a more developed record pursuant to 28 U.S.C. § 2255. See Massaro
v. United States, 538 U.S. 500, 504 (2003); United States v. Plitman, 194 F.3d at 64. At the
same time, however, we express no view as to the merits of any such claim.

15
and uphold the conviction if ‘any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” United States v. Aguilar, 585 F.3d 652, 656 (2d

Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).

Defendants have failed to carry this burden.

a. Shapiro

Trial evidence showed, inter alia, that Shapiro (1) hid from investors his role as a

founder, 40% shareholder, and top executive at Cobalt by failing to disclose it in the

December 2003 and July 2004 PPMs and by misrepresenting it in the December 2004 PPM;

(2) failed to disclose his criminal convictions to investors; (3) reviewed and approved

marketing materials containing material misrepresentations about Cobalt’s experience in the

real estate industry, such as brochures (a) asserting that Cobalt was founded in 1980 when,

in fact, it was established in 2003; (b) containing a line graph falsely depicting Cobalt’s

successful investment returns from 1997 to 2003; and (c) identifying prominent investment

professionals as associated with Cobalt even though they had no relationship with the

company; (4) misrepresented his educational background in the December 2004 PPM; (5)

falsely informed investors that Cobalt owned and had developed certain properties, such as

the Mercury and Simone Hotels; and (6) misappropriated investor funds for personal use.

From this evidence, we easily conclude that a rational jury could have found Shapiro’s

fraudulent intent established beyond a reasonable doubt.

In urging to the contrary, Shapiro argues that the evidence did not show his intent to

harm Cobalt’s investors, as required to prove mail and wire fraud, but rather showed that he

16
sought to make a profit for investors through Cobalt. We are not persuaded. The evidence

was sufficient to prove that Shapiro intended fraudulently to induce investors to entrust him

with their money. Shapiro’s intent to cause that immediate loss to his victims is sufficient

to sustain his mail and wire fraud convictions, regardless of whether he intended ultimately

to generate a return on their investments. See United States v. Ferguson, 676 F.3d 260, 280

(2d Cir. 2011) (“Where some immediate loss to the victim is contemplated by a defendant,

the fact that the defendant believes (rightly or wrongly) that he will ultimately be able to

work things out so that the victim suffers no loss is no excuse for the real and immediate loss

contemplated to result from defendant’s fraudulent conduct.” (alteration and internal

quotation marks omitted)).

b. Stitsky

Trial evidence showed, inter alia, that Stitsky (1) was a founding member of Cobalt

along with Shapiro and held a 40% equity share of the company; (2) reviewed misleading

marketing materials, such as a PowerPoint presentation to Cobalt salespeople and investors

falsely stating that Cobalt (a) was founded in 1983; (b) made investments that had

outperformed other benchmark indexes from 1997 to 2003; and (c) began renovating the

Mercury Hotel in 1998 and completed it in 2000; (3) asked a Cobalt consultant to

misrepresent his role with the company to an investor; (4) asked his son to create a résumé

misrepresenting his length of experience in the mortgage business; (5) admitted to a Cobalt

employee that his name was not listed in the PPMs due to his criminal history; (6) instructed

a Cobalt employee not to tell the FBI he was a partner at Cobalt; (7) falsely told the FBI that

17
he was only a consultant for Cobalt and did not have direct contact with investors; and

(8) lied to investors about Cobalt’s ownership interest in certain properties. From this

evidence, a rational jury could have concluded that Stitsky acted with the requisite intent.

Although Stitsky argues that the evidence supports inferences that he did not, in fact,

have a leadership role at Cobalt; was not aware of the material misrepresentations in the

marketing materials; encouraged “favorable spin but did not flat-out tell others to lie,” Stitsky

Reply Br. 4; and concealed his role at Cobalt from investors with the approval of counsel,

the jury was free to reject Stitsky’s view of the evidence, see United States v. Hasan, 586

F.3d 161, 166 (2d Cir. 2009). The evidence amply supports the contrary inferences urged

by the government, which we must credit in reviewing the sufficiency of the evidence. See

United States v. Aguilar, 585 F.3d at 656.

Insofar as Stitsky argues that he did not intend to cause harm to Cobalt’s investors,

we reject this claim for reasons already stated in rejecting Shapiro’s analogous argument.

See United States v. Ferguson, 676 F.3d at 280.

5. Recusal

Defendants argue that the district judge should have sua sponte recused herself due

to personal bias against defendants and bias stemming from her handling of five related civil

cases. We review defendants’ claim for plain error, see United States v. Bayless, 201 F.3d

116, 128–29 (2d Cir. 2000), which is not present here.

A judge is required to disqualify herself “in any proceeding in which [her] impartiality

might reasonably be questioned,” 28 U.S.C. § 455(a), and also where she “has a personal bias

18
or prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding,” id. § 455(b)(1). Section 455(a) is “commonly limited to those

circumstances in which the alleged partiality stems from an extrajudicial source.” United

States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (alteration and internal quotation marks

omitted). Opinions held by judges as a result of what they learned in a different case

involving the same defendant and the same set of facts are “not ordinarily a basis for

recusal.” Id.

Here, defendants have pointed to no facts that would have warranted recusal. Their

attempt to locate personal bias in the judge’s (1) efforts to control defense counsel’s

duplicative cross-examination, (2) manner towards defense counsel, and (3) adverse

evidentiary rulings is unconvincing. See Litkey v. United States, 510 U.S. 540, 556 (1994)

(rejecting bias claim based on district judge’s questioning of certain witnesses, alleged “anti-

defendant tone,” and limitations on testimony regarding defendants’ state of mind (internal

quotation marks omitted)). Moreover, the district judge’s knowledge and opinions based on

facts presented in related civil cases did not compel her recusal. See United States v. Carlton,

534 F.3d at 100.

In sum, we reject defendants’ various challenges to their convictions as uniformly

meritless.

6. Sentencing Challenges

a. Procedural Error

Defendants assert that the district court committed procedural error by

19
(1) miscalculating their Guidelines ranges as the statutory maximum of 85 years (reduced

from life imprisonment pursuant to U.S.S.G. § 5G1.1(a)), and (2) failing to consider the 18

U.S.C. § 3553(a) factors. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)

(en banc) (stating that district court commits procedural error, inter alia, where it

miscalculates Guidelines or does not consider § 3553(a) factors). To the extent the argument

faults district court determinations that were primarily legal in nature, our review is de novo;

to the extent it faults determinations that were primarily factual, we review only for clear

error. See United States v. Hsu, 669 F.3d 112, 120 (2d Cir. 2012).

i. Loss Calculation

Defendants fault the district court’s application of a 22-level enhancement to their

Guidelines offense levels based on a purportedly erroneous loss calculation of $23,152,235.

See U.S.S.G. § 2B1.1(b). “In calculating the amount of loss under the Guidelines, a

sentencing court ‘need only make a reasonable estimate of the loss.’” United States v. Rigas,

583 F.3d 108, 120 (2d Cir. 2009) (quoting U.S.S.G. § 2B1.1 cmt. n.3(C)); see United States

v. Bryant, 128 F.3d 74, 75 (2d Cir. 1997) (“[T]he Guidelines do not require that the

sentencing court calculate the amount of loss with certainty or precision.”).

The challenged loss calculation here was based on a chart prepared by a

court-appointed receiver, which indicated that the total amount of money invested by the 352

victims of defendants’ fraudulent scheme was $23,152,235. The district court’s reliance on

this sum to estimate loss was reasonable under our precedent. See United States v. Hsu, 669

F.3d at 122 (stating Guidelines “provide that when an investor puts money into a fraudster’s

20
hands, and ultimately receives nothing of value in return, his loss is measured by the amount

of principal invested”); United States v. Byors, 586 F.3d 222, 226 (2d Cir. 2009) (concluding

that district court did not err in calculating loss based on victims’ total $9 million

investment); see also United States v. Rutkoske, 506 F.3d 170, 178 (2d Cir. 2007) (stating

that our review of district court’s loss calculation is limited to determining whether its

“method of calculating the amount of loss was legally acceptable” (internal quotation marks

omitted)).

Defendants nevertheless assert that individuals who invested with Cobalt through

methods other than purchasing Units are not victims of the charged crimes and, thus, their

investments should not be included in the loss amount. This argument fails because, as

discussed supra with respect to defendants’ constructive amendment argument, those

individuals were, in fact, victims of the fraudulent scheme charged in the indictment.

Nor are we persuaded by defendants’ argument that investments made in Cobalt

following November 30, 2005, the date of an amendment to the December 2004 PPM that

disclosed defendants’ criminal convictions, should not be counted in the loss amount.7

Defendants were convicted pursuant to an indictment charging a fraudulent scheme that

lasted until March 27, 2006. Their argument that the November 2005 amendment terminated

the fraudulent scheme earlier than that date is unavailing. Indeed, as we have already

7
The evidence at trial indicated that Cobalt created the amendment in mid-January
2006 and backdated it to November 30, 2005, to avoid disclosing that the FBI executed
search warrants at Cobalt’s Springfield and Great Neck offices on December 1, 2005.

21
explained, the wide-ranging fraud at Cobalt was not limited to defendants’ failure to disclose

their criminal convictions; it also involved other misrepresentations, such as false statements

about Cobalt’s properties, its history in the real estate business, and its past investment

performance. Thus, because defendants have not established that the investments Cobalt

received following the November 2005 amendment were not fraudulently induced, the

district court did not err as a matter of law or fact in including them in its loss calculation.

Defendants also argue that their fraud victims received securities with some value, i.e.,

the Units, in exchange for their investment in Cobalt, and thus the loss amount should be

offset by the value of those securities. See U.S.S.G. § 2B1.1 cmt. n.3(E)(i) (stating that loss

should be offset by “money returned, and the fair market value of the property returned and

the services rendered, by the defendant . . . to the victim before the offense was detected”).

The district court, however, found that investors had been left with “nothing of value when

the fraud was uncovered” and, specifically, that the Units “conferred no value at all on the

investors,” because the “few buildings that Cobalt purchased were all highly leveraged with

multiple mortgages” and “Cobalt did not have the funds or ability to renovate these

properties.” Stitsky Sent. Tr. 17:6–12, Stitsky App. 517. Defendants fail to demonstrate that

this factual determination is clearly erroneous. Indeed, even if some of Cobalt’s properties

retained value at the time the fraud was uncovered, as defendants contend, the district court

reasonably concluded that the Cobalt securities had no value because there was no realistic

possibility that Cobalt would be able to generate a positive return for investors. See United

States v. Leonard, 529 F.3d 83, 93 (2d Cir. 2008) (“The reasonable valuation of . . . illiquid

22
assets is an exercise best committed to the sound discretion of the district court.”).8

Defendants’ argument for loss to be offset by Cobalt’s legitimate expenditures fares

no better because the “Guidelines do not require a loss to be offset by any legitimate

expenditures.” United States v. Byors, 586 F.3d at 226 (citing U.S.S.G. § 2B1.1 cmt.

n.3(E)(i)). Additionally, the district court reasonably determined that no offset was

warranted for losses resulting from changed economic circumstances because Cobalt

investors would not have been exposed to such risks had defendants not fraudulently induced

them to invest in the first instance.

Accordingly, because investors received nothing of value at the time the fraud was

uncovered, the district court reasonably estimated the loss to be the principal amount invested

by the victims of defendants’ fraud. See United States v. Hsu, 669 F.3d at 122; United States

v. Byors, 586 F.3d at 226; United States v. Leonard, 529 F.3d at 93 n.10.

ii. Number of Victims

Defendants challenge application of a six-level Guidelines enhancement based on

more than 250 fraud victims. See U.S.S.G. § 2B1.1(b)(2)(C). As this objection was not

8
Nor do we identify abuse of discretion in the district court’s failure to authorize
funds pursuant to the Criminal Justice Act (“CJA”) to retain a real estate appraiser to value
Cobalt’s properties. See United States v. Bah, 574 F.3d 106, 118 (2d Cir. 2009) (stating that
district court “may authorize the expenditure of funds exceeding $500 under the CJA only
when ‘necessary for adequate representation’” (quoting 18 U.S.C. § 3006A(e)(1),(2))).
Contrary to defendants’ assertion, such an appraisal would not have proved that the Units had
value, even if it could have demonstrated that the properties had value. Nor would the
appraisal have shown that defendants did not intend to harm their victims. See United States
v. Ferguson, 676 F.3d at 280.

23
raised before the district court, we review only for plain error. See United States v. Marcus,

130 S. Ct. at 2164.

Defendants argue that the victim list, created by the court-appointed receiver and

adopted by the district court, erroneously identifies 352 victims by including (1) non-Unit

investors with Cobalt and (2) post-November 2005 investors. We have already rejected these

arguments in other contexts, and the same conclusion obtains here. Insofar as defendants

also argue that the list is duplicative, an independent review of the list refutes that claim.

Thus, the district court did not err in applying the challenged victim enhancement.

iii. Sophisticated Means

Defendants challenge the two-level enhancement applied for sophisticated means. See

U.S.S.G. § 2B1.1(b)(10)(C). The Guidelines define “sophisticated means” to be “especially

complex or especially intricate offense conduct pertaining to the execution or concealment

of an offense.” U.S.S.G. § 2B1.1 cmt. n.8(B). The district court concluded that defendants’

scheme was “very sophisticated” because it (1) “lasted several years”; (2) “reflected very

careful planning”; (3) included a “careful effort to conceal the fraud by lying” to business

partners, lawyers, and investors; (4) “relied on creating and disseminating marketing

publications that contained material misrepresentations”; and (5) involved the “creation of

fictitious documents for the purpose of convincing investors to give money or not to redeem

their money from Cobalt.” Shapiro Sent. Tr. 25:6–20, Shapiro App. 373; see Stitsky Sent.

Tr. 18:19–20:4, Stitsky App. 518–20 (noting that scheme also involved “fictitious corporate

officer” and call scripts containing material misrepresentations). Defendants have failed to

24
demonstrate that these findings are clearly erroneous. See United States v. Jackson, 346 F.3d

22, 25 (2d Cir. 2003) (“[E]ven if each step in the scheme was not elaborate, the total scheme

[may be] sophisticated [when] all the steps [are] linked together.”). Indeed, the Guidelines’

example of sophisticated means, a telemarketing scheme in which the scheme’s main office

is located in one jurisdiction but its soliciting operations are in another, see U.S.S.G. § 2B1.1

cmt. n.8(B), closely parallels Cobalt’s operations out of its Springfield and Great Neck

offices.

iv. Aggravating Role

Defendants challenge the application of a four-level leadership-role enhancement

pursuant to U.S.S.G. § 3B1.1(a) (stating that enhancement is warranted if defendant “was an

organizer or leader of criminal activity that involved five or more participants or was

otherwise extensive”).

(a) Shapiro

Shapiro does not dispute leadership; he challenges only the finding that the scheme

involved more than five “participants” or was “otherwise extensive.” Id. This argument

merits little discussion. At Shapiro’s sentencing, the district court identified seven

individuals by name as knowing participants in the scheme, and the record amply supports

that determination. See U.S.S.G. § 3B1.1 cmt. n.1 (defining “participant” as “person who

is criminally responsible for the commission of the offense, but need not have been

convicted”). In the alternative, the district court concluded that the scheme was otherwise

extensive because of the large number of unknowing and knowing participants who provided

25
services “peculiar and necessary to the criminal scheme.” Shapiro Sent. Tr. 26:9–13, Shapiro

App. 374. Considering that Cobalt employed numerous individuals, including a cadre of

salespersons, in furtherance of its fraudulent scheme, the district court’s determination is not

clearly erroneous. See United States v. Manas, 272 F.3d 159, 166 (2d Cir. 2001)

(“[U]nknowing or unwitting participants in a criminal scheme . . . may be counted in

ascertaining whether it was otherwise extensive” (internal quotation marks omitted));

U.S.S.G. § 3B1.1 cmt. n.3 (“[A] fraud that involved only three participants but used the

unknowing services of many outsiders could be considered extensive.”). This record is

“sufficiently specific to permit meaningful appellate review” and to permit a conclusion of

no error. United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009).

(b) Stitsky

Stitsky challenges his leadership role in the fraudulent scheme. The district court’s

leadership-role determination was properly informed by “the exercise of decision making

authority, the nature of participation in the commission of the offense, the recruitment of

accomplices, the claimed right to a larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1

cmt. n.4.

The district court determined, inter alia, that Stitsky (1) “was an equity partner in the

scheme,” Stitsky Sent. Tr. 26:8–9, Stitsky App. 526; (2) “was involved from the start in

planning the Cobalt business scheme”; (3) “worked with [William] Foster and Shapiro to

26
execute the fraudulent scheme”; (4) “personally oversaw Cobalt’s fundraising arm”; (4) “was

fully aware of the most pertinent aspects of the fraud,” id. at 18:8–18, Stitsky App. 518;

(5) along with Shapiro, recruited Foster to serve as the “front man for Cobalt so that investors

would not learn the truth about [his] and Shapiro’s criminal past and their leadership role at

Cobalt,” id. at 19:8–9, Stitsky App. 519; (6) “directed [Charles] Hartman to make misleading

and false statements for the purpose of marketing Cobalt to investors,” id. at 20:14–15,

Stitsky App. 520; and (7) “directed other Cobalt employees to lie to investors,” id. at

19:22–23, Stitsky App. 519. We identify no clear error in these findings of fact nor in the

leadership conclusion the district court derived therefrom.

Contrary to Stitsky’s assertion, that Shapiro may have “played a larger role in the

day-to-day management of the criminal activity in this case does not foreclose a finding that

[Stitsky] was also a leader of the activity.” United States v. Wisniewski, 121 F.3d 54, 58 (2d

Cir. 1997) (internal quotation marks omitted).

v. Abuse of Trust

Defendants challenge the two-level abuse-of-trust enhancement. See U.S.S.G. §

3B1.3 (providing for enhancement where defendant “abused a position of public or private

trust . . . in a manner that significantly facilitated the commission or concealment of the

offense”). A position of trust is “characterized by professional or managerial discretion (i.e.,

substantial discretionary judgment that is ordinarily given considerable deference).” Id. §

3B1.3 cmt. n.1. For this enhancement to apply, the position of trust “must have contributed

in some significant way to facilitating the commission or concealment of the offense (e.g.,

27
by making the detection of the offense or defendant’s responsibility for the offense more

difficult).” Id. The district court concluded that Shapiro “possessed enough managerial

discretion at Cobalt to enable him to perpetrate a difficult-to-detect fraud by siphoning

money out of Cobalt for his own use.” Shapiro Tr. 26:17–20, Shapiro App. 374. With

respect to Stitsky, the district court found that he was “a high-level manager in a company

with discretionary authority that assisted him in keeping essential information from investors

and provided him the freedom to commit a difficult-to-detect wrong.” Id. at 21:21–25,

Stitsky App. 521. These conclusions find ample support in the record.

Shapiro submits that this enhancement should not apply to him because Cobalt did not

hold him out as someone in a position of trust. But the district court did not clearly err in

determining otherwise based on trial. For example, one investor testified that Shapiro

specifically told her he was the owner and president of Cobalt.

Stitsky’s contention that he lacked the necessary discretion to warrant application of

this enhancement also fails. As discussed supra with respect to his leadership-role

enhancement, Stitsky was a founding member of Cobalt who oversaw the company’s

fundraising arm and knew the details of the fraudulent scheme. Thus, the district court’s

conclusion that he exercised discretion is fully supported by the record.

vi. Overlapping Enhancements

Defendants argue that the district court erred in refusing to apply a downward

departure based on overlapping Guidelines enhancements. The accumulation of overlapping

enhancements, “when imposed upon a defendant whose adjusted offense level translates to

28
a high sentencing range, . . . permits a sentencing judge to make a downward departure.”

United States v. Lauersen, 348 F.3d 329, 344 (2d Cir. 2003) (citation omitted). The denial

of such a departure, however, is “generally not appealable,” absent “clear evidence” that the

“sentencing court misapprehended the scope of its authority to depart or the sentence was

otherwise illegal.” United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (internal

quotation marks omitted).

Here, the district court explicitly considered and rejected Stitsky’s argument for a

downward departure based on cumulative enhancements, and the record admits no the

conclusion that the district court misapprehended the scope of its departure authority.

Accordingly, its downward-departure decision is not appealable.9

vii. Section 3553(a) Factors

Defendants contend that the district court failed adequately to consider the § 3553(a)

factors. The record belies this argument. During both Shapiro’s and Stitsky’s sentencing

hearings, the district court explicitly considered the §3553(a) factors, including the nature

and circumstances of the offense, the history and characteristics of defendants, general

deterrence, and specific deterrence. Moreover, the court specifically rejected Shapiro’s claim

9
We also reject defendants’ argument that the district court was required to hold an
evidentiary hearing as to the applicable Guidelines enhancements discussed supra. The
district court afforded defendants an adequate “opportunity to rebut the Government’s
allegations,” and thus no hearing was required. United States v. Phillips, 431 F.3d 86, 93 (2d
Cir. 2005) (“The district court is not required, by either the Due Process Clause or the federal
Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing
disputes.” (internal quotation marks omitted)).

29
that the Guidelines range would result in unwarranted sentencing disparities among

individuals with similar criminal records. Thus, the record affords no basis for concluding

that the district court failed to consider the § 3553(a) factors. See United States v.

Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (“[W]e presume, in the absence of record evidence

suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider

the statutory factors.”).

b. Substantive Reasonableness

Defendants contend that their respective 85-year prison sentences are substantively

unreasonable. They bear “a heavy burden because our review of a sentence for substantive

reasonableness is particularly deferential.” United States v. Broxmeyer, 699 F.3d 265,

288–89 (2d Cir. 2012). “[W]hile appellate courts have a role to play in patrolling the

boundaries of reasonableness, we do so modestly, not substituting our own judgment for that

of district courts, but rather, identifying as substantively unreasonable only those sentences

that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law

that allowing them to stand would damage the administration of justice.” Id. (alteration,

citations, and internal quotation marks omitted). This is not such a case.

i. Shapiro

The district court found that Shapiro was the key architect and leader of a

sophisticated fraudulent scheme, in which 352 victims lost a total of approximately

$23,152,000. The district concluded that the scheme “resulted in devastating injury,”

particularly for many older victims whose “life savings” were wiped out “at the end of their

30
lives when they no longer had the ability to earn substantial amounts of money.” Shapiro

Sent. Tr. at 27:2–5, Shapiro App. 375.

The district court further determined that Shapiro, who had been convicted of other

fraud crimes in 1998 and was in Guidelines Criminal History Category III, was a recidivist

who seemed not to hold himself “accountable for the devastating harm he inflicts on

victims,” id. at 28:23–25, Shapiro App. 376, and who continued to pose a significant threat

to society.10 In this regard, the court noted that Shapiro was in prison when he hatched the

Cobalt scheme with Stitsky and on supervised release when engaged in the scheme.

Although the court acknowledged Shapiro’s childhood hardships, it accorded them

little mitigating weight given the “extensive harm” caused by his crimes. Id. at 28:2–5,

Shapiro App. 376. The court concluded, in light of Shapiro’s long history of criminal

conduct, his likely recidivism, and the need for general deterrence, that an 85-year sentence

was warranted.

The “particular weight” that a district court affords “aggravating and mitigating

factors is a matter firmly committed to [its] discretion.” United States v. Broxmeyer, 699

F.3d at 289 (internal quotation marks omitted). Our appellate task is only to ensure that each

factor “can bear the weight assigned it under the totality of circumstances in this case.” Id.

(internal quotation marks omitted). While the challenged sentence is severe, it is within the

10
The court noted that, in connection with his 1998 guilty plea, Shapiro was found to
have (1) voided his cooperation agreement by withholding information from and lying to the
government and (2) advanced incredible claims of actual innocence and a secret plea
agreement with the government in an attempt to withdraw his plea.

31
applicable Guidelines range, and we cannot conclude that the factors identified by the district

court do not adequately support its sentencing decision in this case. See United States v.

Friedberg, 558 F.3d 131, 137 (2d Cir. 2009) (stating that “in the overwhelming majority of

cases, a Guidelines sentence will fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances”); United States v. Jones, 531 F.3d 163,

174 (2d Cir. 2008) (recognizing that in “great majority of cases, a range of

sentences—frequently extending well beyond the narrow ranges prescribed by the

Guidelines—must be considered reasonable”). Accordingly, we conclude that Shapiro’s

sentence was substantively reasonable.

ii. Stitsky

The district court determined that Stitsky was also an architect and a leader of a

sophisticated scheme that defrauded hundreds of “not particularly sophisticated” people out

of more than $23 million. Stitsky Sent. Tr. 16:7–10, Stitsky App. 516. The court identified

as victims of Stitsky’s fraud a single working mother who lost funds intended to help her son

pay for college, a couple who could no longer pay their mortgage, and retirees who lost their

entire IRA funds.

The district court further noted that this was Stitsky’s third conviction for securities

fraud, with prior frauds bearing some similarities to the Cobalt scheme and having ties to

organized crime. Incarceration for past convictions had not deterred Stitsky from the Cobalt

scheme, which he engaged in shortly after release from prison and while still under

supervision. Based on these facts and Stitsky’s Criminal History Category of IV, the district

32
court concluded that he was an “inveterate conman” who was unlikely to be deterred by

additional prison time. Id. at 16:16, Stitsky App. 516. Accordingly, the court concluded that

the “goal” of its sentence was to “provide general deterrence to criminal conduct, as well as

to protect the public from further crimes of Mr. Stitsky.” Id. at 16:21–23, Stitsky App. 516.

It therefore imposed an 85-year term of imprisonment.

Again, while the district court’s sentence is severe, the facts it identified in support

of its within-Guidelines sentence adequately bear the weight assigned to them. Through the

Cobalt scheme, which he helped create, Stitsky caused significant harm to hundreds of

people, and he posed a particularly high risk of recidivism on release. In these

circumstances, Stitsky has not shown that the challenged sentence is substantively

unreasonable. See United States v. Broxmeyer, 699 F.3d at 289; United States v. Friedberg,

558 F.3d at 137.11

iii. Sentencing Disparities

In arguing that their sentences are substantively unreasonable, defendants also contend

that the their sentences yield unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(6);

see also United States v. Mazza-Alaluf, 621 F.3d 205, 214 (2d Cir. 2010) (stating that where

11
This case is unlike United States v. Corsey, --- F.3d ----, 2013 WL 3796393 (2d Cir.
2013), on which defendants rely. There, we vacated a sentence because the district court
committed procedural error by engaging in a perfunctory analysis of the § 3553(a) factors
and relying almost exclusively on deterrence to justify its sentence. See id. at *8–9. This
case presents no such concerns. Moreover, the fraud at issue in Corsey involved no actual
loss, only intended loss, see id. at *7, whereas here defendants’ fraud resulted in more than
$23 million in loss and caused substantial harm to hundreds of victims.

33
defendant argues that district court “failed to accord the § 3553(a)(6) factor sufficient

mitigating weight, he raises a substantive challenge”). In rejecting this argument by Shapiro,

the district court observed that most of the proffered comparators, who received shorter

sentences than defendants for fraudulent schemes involving similar or greater loss, did not

have extensive criminal histories. Thus, those comparators are not so similarly situated to

defendants as to render the challenged sentences substantively unreasonable.

In any event, disparities alone do not necessarily render sentences substantively

unreasonable. See United States v. Florez, 447 F.3d 145, 157–58 (2d Cir. 2006) (stating that

weight to be given sentencing disparities, if properly considered, is within discretion of

district court as long as ultimate sentence is reasonable); United States v. Fernandez, 443

F.3d at 32 (“[T]he requirement that a sentencing judge consider an 18 U.S.C. § 3553(a) factor

is not synonymous with a requirement that the factor be given determinative or dispositive

weight in the particular case, inasmuch as it is only one of several factors that must be

weighted and balanced by the sentencing judge.” (emphasis in original)). Thus, we cannot

conclude that the district court exceeded its sentencing discretion in determining that its

articulated concern with defendants’ particular risk of recidivism and the significant harm

that they had caused to numerous victims outweighed any disparity concern in this case.12

12
Insofar as Stitsky argues that his sentence is unreasonable as compared to Shapiro’s
and Foster’s sentences, that claim is without merit. Section 3553(a) “does not require district
courts to consider sentencing disparity among co-defendants.” United States v. Williams,
524 F.3d 209, 216 (2d Cir. 2008) (internal quotation marks omitted). Moreover, the district
court reasonably concluded that, in light of Stitsky’s more extensive criminal history and
high risk of recidivism, his conduct warranted a sentence equivalent to Shapiro’s and much
longer than Foster’s.

34
 iv. Loss Guidelines

Defendants also argue that their sentences are substantively unreasonable because the

loss Guideline under U.S.S.G. § 2B1.1(b)(1) results in excessively harsh sentences. Even

assuming that application of § 2B1.1(b)(1) might result in substantively unreasonable

sentences in some cases, this is not one of them in light of defendants’ particular criminal

history, risk of recidivism, and harm caused. In any event, “[w]e have never held that a

district court is required to reject an applicable Guideline.” United States v. Salim, 690 F.3d

115, 126 (2d Cir. 2012). “At most, the judge may give a non-Guidelines sentence where she

disagrees with the weight the Guidelines assigns to a factor.” Id. Defendants’ sentences thus

are not substantively unreasonable due the district court’s application of § 2B1.1(b)(1).

c. Eighth Amendment

Defendants claim that their 85-year sentences violate the Eighth Amendment’s

prohibition against cruel and unusual punishment. See U.S. Const. amend. VIII. For the

same reasons that their sentences are procedurally and substantively reasonable, we reject

defendants’ argument. See United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003)

(“Lengthy prison sentences, even those that exceed any conceivable life expectancy of a

convicted defendant, do not violate the Eighth Amendment’s prohibition against cruel and

unusual punishment when based on a proper application of the Sentencing Guidelines or

statutorily mandated consecutive terms.”).

35
 d. Competency

Shapiro argues that the district court erred in failing sua sponte to hold a competency

hearing before sentencing.13 A district court is required to order a competency hearing “on

its own motion, if there is reasonable cause to believe that the defendant may presently be

suffering from a mental disease or defect rendering him mentally incompetent.” 18 U.S.C.

§ 4241(a). We review the district court’s application of § 4241(a) for abuse of discretion.

See United States v. Arenburg, 605 F.3d 164, 169 (2d Cir. 2010). Shapiro’s psychological

evaluation states that his psychological “deficits” were not “of a degree as to render him

incompetent to proceed with his case.” Forensic Psychological Report of Sanford L. Drob,

Ph.D., Shapiro App. 308. Thus, the district court did not abuse its discretion in declining to

order a hearing as to his competency.

We have considered defendants’ remaining arguments on appeal and conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

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

13
As Shapiro did not submit his psychological evaluation to the district court until
after trial, there was no basis for the district court to order a competency hearing before trial

36