13‐922‐cr
United States of America v. Clark
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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 10th day of December, two thousand fourteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 13‐922‐cr
MAUREEN CLARK,
Defendant‐Appellant,
and
CHRISTOPHER PLUMMER,
Defendant.*
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*The Clerk of Court is respectfully instructed to amend the caption as set forth above.
FOR APPELLEE: RICHARD J. SCHECHTER, Assistant United
States Attorney (Sandra S. Glover, Assistant
United States Attorney, for Deirdre M. Daly,
United States Attorney for the District of
Connecticut, on the brief), Bridgeport,
Connecticut.
FOR DEFENDANT‐APPELLANT TODD A. BUSSERT, Frost Bussert, LLC, New
MAUREEN CLARK: Haven, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Eginton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in
part and VACATED in part, and the case is REMANDED for reconsideration of the
restitution award.
Defendant‐appellant Maureen Clark (ʺClarkʺ) appeals from the district
courtʹs March 14, 2013 amended judgment convicting her following a jury trial of
conspiracy, wire fraud, and money laundering, and sentencing her principally to 87
monthsʹ imprisonment and imposing restitution in the amount of $1,750,000.32. We
assume the partiesʹ familiarity with the facts, procedural history, and issues for review.
On appeal, Clark argues that (1) the district court improperly instructed
the jury with respect to proof of a scheme to defraud, (2) the government made
improper statements in its summation that deprived Clark of a fair trial, (3) the district
courtʹs sentence was procedurally unreasonable, and (4) the district court improperly
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failed to account for moneys already paid to victims in its $1.75 million restitution
calculation. Each argument is addressed in turn.
1. Wire Fraud Jury Instructions
Clark argues that the district court improperly instructed the jury that the
ʺcontemplated actual harmʺ or ʺloss of money or propertyʺ required for a scheme to
defraud could be shown by proof that the defendant contemplated ʺdepriving another
of the information necessary to make discretionary economic decisions.ʺ (A 133‐34).
We review the district courtʹs jury instructions de novo, reversing only if ʺviewing the
charge as a whole, there was a prejudicial error.ʺ United States v. Aina‐Marshall, 336 F.3d
167, 170 (2d Cir. 2003).
It is well settled in the Second Circuit that investors can be harmed if they
are deprived of ʺinformation necessary to make discretionary economic decisions.ʺ
United States v. Rossomando, 144 F.3d 197, 201 n.5 (2d Cir. 1998); see also United States v.
Carlo, 507 F.3d 799, 802 (2d Cir. 2007) (per curiam) (ʺThe court properly described the
harm to the victimsʹ property interests as the deprivation of information necessary to
make discretionary economic decisions.ʺ). Therefore, the district court did not err in
explaining that a scheme to defraud could be established by proof that investors were
deprived of information necessary to make discretionary economic decisions.1
1 Clarkʹs reliance on Sekhar v. United States, 133 S. Ct. 2720 (2013), is misplaced. There,
the Supreme Court analyzed the scope of the concept of ʺpropertyʺ for purposes of the
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Moreover, the evidence at trial showed, in any event, that Clark
contemplated actual harm to investors by depriving them of material information ‐‐
including the fact that she did not actually own the property in question but had only
an option to buy.
2. Prosecutorial Misconduct
Next, Clark argues that the prosecutor engaged in misconduct in his
summation by repeatedly stating that Clark lied and by vouching for witnesses. The
district court denied Clarkʹs motion for a mistrial, as well as her post‐trial motion for
judgment of acquittal or a new trial.
To succeed on a claim for prosecutorial misconduct, a defendant must
establish that the prosecutorʹs comments ʺso infected the trial with unfairness as to
make the resulting conviction a denial of due process.ʺ Darden v. Wainwright, 477 U.S.
168, 181 (1986) (internal quotation marks omitted); see United States v. Carr, 424 F.3d 213,
227 (2d Cir. 2005). We have held that in considering whether prosecutorial misconduct
rises to the level of ʺegregious misconductʺ requiring reversal, courts must weigh three
factors: (1) the severity of the misconduct; (2) the measures adopted to cure the
misconduct; and (3) the certainty of conviction absent the misconduct. United States v.
Elias, 285 F.3d 183, 190‐92 (2d Cir. 2002). We review the district courtʹs denial of Clarkʹs
Hobbs Act, not the wire fraud statute. Id. at 2726 (ʺWhether one considers the personal
right at issue to be ʹpropertyʹ in a broad sense or not, it certainly was not obtainable
property under the Hobbs Act.ʺ) (emphasis in original).
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motion for judgment of acquittal de novo, see United States v. Truman, 688 F.3d 129, 139
(2d Cir. 2012), and the district courtʹs denial of a mistrial and a new trial for abuse of
discretion, see United States v. Deandrade, 600 F.3d 115, 118 (2d Cir. 2010); United States v.
Canova, 412 F.3d 331, 348 (2d Cir. 2005).
Here, all three factors weigh against finding a due process violation. First,
the challenged conduct, even assuming it was improper, was not severe. The
prosecutorʹs assertion that Clark lied fell at least arguably within a prosecutorʹs broad
latitude in summation. See United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987)
(noting that ʺ[u]se of the words ʹliarʹ and ʹlieʹ to characterize disputed testimony when
the witnessʹs credibility is clearly in issue is ordinarily not improper unless such use is
excessive or is likely to be inflammatoryʺ); United States v. Nersesian, 824 F.2d 1294, 1327
(2d Cir. 1987) (litigants enjoy ʺbroad latitudeʺ to draw inferences from the record to
suggest to the jury in summation). And here, there was a basis in the record for the
prosecutor to argue that the evidence showed that Clark had lied. Likewise, the
prosecutor did not personally vouch for witnesses, and instead merely argued, based on
the record, that its witnesses were credible. See United States v. Williams, 690 F.3d 70, 76
(2d Cir. 2012) (concluding that characterization of testimony of witnesses as ʺthe truthʺ
or ʺabsolute truthʺ was proper because it was tied to evidence supporting the
contention). Thus, there was no improper vouching.
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Second, even if there had been any misconduct, the district court clarified
that: ʺLawyers are never permitted to express their own opinion regarding the guilt or
the non‐guilt of the defendant. . . . [T]o the extent that the lawyers in this case may have
made any comments about the ultimate issues in this case, which are for [the jury], I
caution you that you must disregard those comments of the lawyers.ʺ (A 120). The
government also emphasized that it was the juryʹs job to assess credibility (see, e.g.,
GA 628, 630, 632, 644, 670), and stated that ʺ[l]awyers donʹt express their opinions.ʺ
(GA 675). Thus, to the extent there was any misconduct, the court and prosecutor
adopted measures to cure it.
Finally, given the ample evidence before the jury, Clark most likely would
have been convicted even absent the purported misconduct. Accordingly, we conclude
that the district court did not err in denying the motion for judgment of acquittal or
abuse its discretion in denying a mistrial or a new trial.
3. Sentencing
Clark challenges the procedural reasonableness of her sentence, arguing
that the district court failed to consider her downward departure request, failed to
consider the factors set forth in 18 U.S.C. § 3553(a), improperly substituted the
probation officeʹs judgment for its own judgment, and afforded the guidelines undue
weight.
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We review the district courtʹs sentence for reasonableness.2 See United
States v. Thomas, 628 F.3d 64, 68 (2d Cir. 2010). ʺA district court commits procedural
error where . . . it fails to calculate the Guidelines range . . . , makes a mistake in its
Guidelines calculation, . . . treats the Guidelines as mandatory, or fails adequately to
explain its chosen sentence.ʺ Id. (internal quotation marks omitted).
Contrary to Clarkʹs argument, the district court did consider her
downward departure request. Prior to sentencing, the parties submitted lengthy
memoranda that addressed Clarkʹs request for a downward departure. The record
makes clear that the district court considered Clarkʹs departure request, but was not
persuaded and denied it. The experienced district judge was well aware of his ability to
depart, and in any event, denials of downward departures are generally not reviewable
on appeal. See United States v. Galvez‐Falconi, 174 F.3d 255, 257 (2d Cir. 1999).
Clarkʹs remaining arguments fail to establish that the sentence was
procedurally unreasonable. The district court expressly considered § 3553, at one point
even stating that § ʺ3553 is the bible.ʺ (GA 224). Throughout the sentencing hearing,
the district court referred to § 3553, and discussed several of the pertinent factors for
consideration, including general deterrence, Clarkʹs continued belief that she did
nothing wrong, that Clark would benefit from vocational training provided while
2 The government argues for plain error review because Clark raises her objections for
the first time on appeal. We need not address which standard is appropriate because
under either standard, Clarkʹs arguments fail.
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incarcerated to aid in her gainful employment upon release, and explained why Clark
was receiving a longer sentence than Plummer, who pled guilty prior to trial.
Moreover, the district court explained that it was adhering to the bottom of the
guidelines sentence, rather than going below it, as it ʺwould have liked to do,ʺ in light
of the § 3553 factors. (GA 229). Because the record supports a finding that the district
court sentenced Clark after careful consideration of the partiesʹ submissions, analysis of
the § 3553 factors, and review of the thorough PSR prepared by the probation office, we
conclude that the district court did not substitute the probation officeʹs judgment for its
own, did not afford the guidelines undue weight, and imposed a reasonable sentence.
4. Restitution
Clarkʹs final argument is that the district court improperly failed to credit
payments made to victims by a third party when calculating restitution. The
government does not dispute that payments were made, but it argues that Clark
waived that issue and the she has suffered no prejudice by any error.
We remand for the district court to reconsider the issue of restitution.
There is record evidence that two victims, Anthony Lovallo and Herman Abramowitz,
were repaid approximately $250,000 of their losses by a third party, Douglas
Grossinger, prior to trial. If true, the victims are not entitled to a second payment by
Clark because double payment would constitute an impermissible windfall. See United
States v. Boccagna, 450 F.3d 107, 117 (2d Cir. 2006) (ʺsentencing court cannot order
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restitution that goes beyond making the victim wholeʺ) (internal quotation marks
omitted). Moreover, as for the governmentʹs argument that Clark has not been
prejudiced because she would have to reimburse Grossinger for amounts he paid to the
victims, the fact is that the judgment clearly provides for payment of $300,000 to Lovallo
and Abramowitz. As the judgment is now written, Clark is potentially subject to
further claims for amounts already paid to the victims. Accordingly, we vacate the
restitution award and remand the case to the district court to consider whether Clark
should be credited for any payments already made to the victims and whether any
adjustments must be made to the restitution order.
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We have considered Clarkʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM in part and VACATE in part the judgment of
the district court, and REMAND the case for reconsideration of the restitution award.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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