United States v. Mark Mazer

14-1397-cr (L)
United States of America v. Mark Mazer

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, at 40 Foley Square, in the City of New York, on
the 30th day of November, two thousand fifteen.

Present:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
Circuit Judge,
P. KEVIN CASTEL,
District Judge.

________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 14-1397-cr (L),
14-1399-cr (Con),
SVETLANA MAZER, LARISA MEDZON, ANNA 14-1404-cr (Con)
MAKOVETSKAYA, CARL BELL, PADMA ALLEN,
REDDY ALLEN, TECHNODYNE LLC, SCIENCE
APPLICATIONS INTERNATIONAL CORPORATION,

Defendants,

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MARK MAZER, DIMITRY ARONSHTEIN,
GERARD DENAULT,

Defendants-Appellants.
________________________________________________

For Appellee: HOWARD S. MASTER, Assistant United States Attorney
(Andrew D. Goldstein, Brian A. Jacobs, Assistant
United States Attorneys, on the brief), for Preet
Bharara, United States Attorney for the Southern
District of New York, New York, New York.

For Defendant-Appellant Mark Mazer: HENRY E. MAZUREK, Clayman & Rosenberg LLP, New
York, New York.

For Defendant-Appellant Dimitry
Aronsh tein: SUSAN C. WOLFE, Blank Rome LLP, New York, New
York (Marc Fernich, Jonathan Savella, Law Office of
Marc Fernich, New York, New York, on the brief).

For Defendant-Appellant Gerard BARRY A. BOHRER (Gary Stein, Michael L. Yaeger,
Denault: Andrew D. Gladstein, on the brief), Schulte Roth &
Zabel LLP, New York, New York.

Appeal from the United States District Court for the Southern District of New York
(Daniels, J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Defendants Mark Mazer, Dimitry Aronshtein, and Gerard Denault appeal from a

judgment entered on April 29, 2014, by the United States District Court for the Southern District

of New York (Daniels, J.) following a jury trial that resulted in the following convictions: all

three defendants were found guilty of conspiring to violate the Travel Act, 18 U.S.C. § 1952, in

violation of 18 U.S.C. § 371 and of conspiring to commit money laundering in violation of 18

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U.S.C. § 1956(h); Mazer was found guilty of wire fraud and conspiring to commit wire fraud in

violation of 18 U.S.C. §§ 1343 and 1349 and of receiving bribes and conspiring to commit

federal programs bribery in violation of 18 U.S.C. §§ 371 and 666; Aronshtein was found guilty

of paying bribes and conspiring to commit federal programs bribery in violation of 18 U.S.C.

§§ 371 and 666; and Denault was found guilty of wire fraud and conspiring to commit wire fraud

in violation of 18 U.S.C. §§ 1343 and 1349 and of honest services fraud and conspiring to

commit honest services wire fraud in violation of 18 U.S.C. §§ 1346 and 1349. The evidence at

trial showed that defendants exploited their positions as managers and contractors on CityTime, a

project of the City of New York designed to update the City’s payroll systems, in order to profit

from a long-running scheme against the City that involved fraud, kickbacks, and money

laundering. On appeal, defendants raise a host of issues challenging, in one way or another,

nearly every aspect of the judgment below. We assume the parties’ familiarity with the relevant

facts and the procedural history of the case.

I. Motion to Suppress

Aronshtein argues that the district court erred in denying his motion to suppress evidence

obtained from his home pursuant to a search warrant that, according to Aronshtein, was

overbroad and insufficiently particular in violation of the Fourth Amendment. “On appeal from

a district court’s ruling on a motion to suppress evidence, ‘we review legal conclusions de novo

and findings of fact for clear error.’” United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir.

2015) (quoting United States v. Freeman, 735 F.3d 92, 95 (2d Cir. 2013)).

We need not resolve whether the warrant complied with the Fourth Amendment because,

even if it did not, the good-faith exception to the exclusionary rule applies. See generally United

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States v. Leon, 468 U.S. 897, 922 (1984). Aronshtein does not contend that the magistrate judge

was misled or “wholly abandoned his judicial role” in issuing the warrant or that the application

for the warrant was devoid of any “indicia of probable cause.” Id. at 923. Thus, we will not

apply the exclusionary rule unless the warrant at issue was “so facially deficient . . . that the

executing officers cannot reasonably presume it to be valid.” Id.

Here, the nature of the crimes under investigation demonstrates that the officers’ reliance

on the warrant was objectively reasonable. Courts routinely afford officers greater latitude in

detailing the items to be searched when, as here, the criminal activity under investigation

involves “complex financial transactions.” See, e.g., United States v. Yusuf, 461 F.3d 374, 395-

96 (3d Cir. 2006). In light of this background rule, even if the warrant at issue may have been

less detailed than is typical, the officers did not act unreasonably in executing it. Accordingly,

we affirm the district court’s denial of Aronshtein’s motion to suppress.

II. Sufficiency of the Evidence

Defendants also challenge the sufficiency of the evidence underlying the wire fraud,

federal programs bribery, and Travel Act convictions. “We review de novo a challenge to

sufficiency of the evidence,” viewing “the evidence presented at trial ‘in the light most favorable

to the government, crediting every inference that the jury might have drawn in favor of the

government.’” United States v. Naiman, 211 F.3d 40, 46 (2d Cir. 2000) (quoting United States v.

Walker, 191 F.3d 326, 333 (2d Cir. 1999)). “We will not disturb a conviction on grounds of

legal insufficiency of the evidence at trial if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (quoting United States v. Burns,

104 F.3d 529, 534 (2d Cir. 1997)).

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 A. Wire Fraud Convictions

A conviction under the wire fraud statute requires proof of fraudulent intent. United

States v. Autuori, 212 F.3d 105, 116 (2d Cir. 2000). This “[i]ntent may be proven through

circumstantial evidence, including by showing that [the] defendant made misrepresentations to

the victim(s) with knowledge that the statements were false.” United States v. Guadagna, 183

F.3d 122, 129 (2d Cir. 1999). To ensure that the requisite fraudulent intent exists, however, “we

have repeatedly rejected application of the mail and wire fraud statutes where,” notwithstanding

the existence of “‘[m]isrepresentations amounting . . . to a deceit,’” “the purported victim

received the full economic benefit of its bargain.” United States v. Binday, --- F.3d --- , 2015

WL 6444932, at *6, *13 (2d Cir. Oct. 26, 2015) (quoting United States v. Starr, 816 F.2d 94, 98

(2d Cir. 1987)). As a result, “[o]ur cases have drawn a fine line between schemes that do no

more than cause their victims to enter into transactions they would otherwise avoid—which do

not violate the mail or wire fraud statutes—and schemes that depend for their completion on a

misrepresentation of an essential element of the bargain—which do violate the mail and wire

fraud statutes.” United States v. Shellef, 507 F.3d 82, 108 (2d Cir. 2007). Mazer and Denault

argue that the City received precisely what it bargained for and that their cases therefore fall into

the former category.

We disagree. For instance, the jury heard evidence that Mazer, in his role as a manager

of the CityTime project, signed a series of timesheets that authorized payments for consultants

for hours never worked. Although Mazer now tries to characterize those payments as nothing

but an informal severance package, the jury rejected that argument. And for good reason, as it

heard testimony that Mazer had no authorization to provide such severance and that, when City

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officials learned of the payments, they ordered them stopped. Denault, for his part, directed a

subordinate to issue a letter to the City that described Technodyne, a subcontractor, as a firm

possessing “unique combinations of technical capability and key personnel.” As a result, the

City consented to Science Applications International Corporation (“SAIC”) renewing

Technodyne’s contract without rebidding it, a process that, in all likelihood, would have resulted

in lower subcontracting prices. The jury heard testimony, however, that, notwithstanding the

representation in the letter, Technodyne’s capabilities were actually run of the mill. In each

instance, therefore, the City agreed to pay for one thing—two weeks of hours worked and a

uniquely capable subcontractor—but received another—no hours worked and an average, but

high-priced, subcontractor. In light of this and other evidence presented at trial, we conclude that

there was sufficient evidence that the City did not receive the benefit of its bargain and,

accordingly, that defendants have not met their “heavy burden” of establishing that no rational

juror “‘could have found the essential elements of the crime beyond a reasonable doubt.’”

United States v. Chavez, 549 F.3d 119, 124-25 (2d Cir. 2008) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

B. Federal Programs Bribery Convictions

In pertinent part, 18 U.S.C. § 666 makes it unlawful to “corruptly” give anything of value

to an “agent of an organization, or of a State, local, or Indian tribal government, or any agency

thereof” or for such an agent to “corruptly” accept anything of value where the relevant

organization or government entity receives federal “benefits in excess of $10,000.” 18 U.S.C.

§ 666(a)(1)(B), (a)(2), (b). At trial, the Government introduced evidence to show that the City

received more than $10,000 in federal assistance and that Mazer was acting as a City agent when

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he “corruptly” accepted, and Aronshtein “corruptly” paid, bribes. Mazer and Aronshtein now

challenge the sufficiency of the evidence supporting the jury’s determination that Mazer was an

agent of the City. Aronshtein additionally challenges the sufficiency of the evidence establishing

that he had knowledge of Mazer’s status as an agent of the City.

Neither argument persuades us. First, the evidence was more than sufficient for the jury

to find that Mazer was an agent of the City. 18 U.S.C. § 666(d)(1) defines an “agent” as, among

other things, “a person authorized to act on behalf of another person or a government,” and the

evidence amply supports the jury’s determination that Mazer had authority to act on behalf of the

City. Contrary to defendants’ arguments, the mere fact that Mazer was hired to work on the

CityTime project by the City’s Office of Payroll Administration (“OPA”) does not mean that he

lacked authority to act on behalf of the City. CityTime was not an OPA-specific project, but a

City-wide one, initiated to update the payroll system of 80 City agencies and accounted for in the

City’s capital budget. Consistent with this, the CityTime contract and each amendment thereto

was entered into “by . . . the City of New York, acting through its Office of Payroll

Administration.” E.g., App. 1088 (emphasis added); see United States v. Moeller, 987 F.2d

1134, 1137-38 (5th Cir. 1993) (holding that employees of the Texas Federal Inspection Service

were agents of the Texas Department of Agriculture, in part, because “TFIS performed

discretionary functions on behalf of TDA”). Further, the evidence was clear that Mazer

personally had authority to act on behalf of and bind the City in connection with his work on

CityTime.

Second, we also reject Aronshtein’s contention that the jury lacked a sufficient basis to

find that he had knowledge of Mazer’s status as an agent of the City. The Government

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introduced evidence at trial showing that Aronshtein knew of Mazer’s role in the hiring process

for CityTime, and Aronshtein testified on direct examination that Mazer had described his work

as involving a “project for the city.” Trial Tr. 4556:3-4 (emphasis added).

C. Travel Act Conspiracy Conviction

Both Mazer and Aronshtein challenge the sufficiency of the evidence supporting their

convictions for conspiring to violate the Travel Act. We begin with Mazer’s appeal. The Travel

Act prohibits the use of interstate wires to distribute the proceeds of unlawful activity or to

further that activity. See 18 U.S.C. § 1952(a). The unlawful activity charged here was bribery

under New York law, which requires that the person receiving a bribe do so “without the consent

of his employer or principal.” See N.Y. Penal Law § 180.05. Mazer contends that the testimony

of Elaine Doria, OPA’s administrative director, establishes that OPA had knowledge that Mazer

received “fees” from D.A. Solutions, Aronshtein’s company and the source of some of the bribe

money. Even if we were to accept Mazer’s characterization of the evidence, we would have no

reason to reverse his conviction. Mazer’s theory on appeal ignores the significant difference

between “knowledge,” which he claims Doria had, and “consent,” which the statute requires.

Accordingly, we reject Mazer’s challenge to the sufficiency of the evidence supporting his

conviction for conspiring to violate the Travel Act.

We likewise reject Aronshtein’s challenge. The object of the Travel Act conspiracy

charged was the overarching scheme that involved kickbacks to Mazer and Denault paid by,

among others, Aronshtein and Prime View’s principal, Victor Natanzon. Aronshtein contends

that the Government failed to prove that he entered into anything more than an agreement to send

money to Mazer (for, according to Aronshtein, legitimate purposes) and that the evidence failed

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to show he was aware that Natanzon was paying kickbacks to Mazer or that Denault was

receiving kickbacks. A review of the record, however, demonstrates that there was ample

evidence from which the jury could infer that Aronshtein knowingly entered the larger

conspiracy, and that is all that is required. See United States v. Gleason, 616 F.2d 2, 16 (2d Cir.

1979) (“To be convicted as a member of a conspiracy, a defendant need not know every

objective of the conspiracy, every detail of its operation or means employed to achieve the

agreed-upon criminal objective, or even the identity of every co-conspirator.” (citations

omitted)).

III. The Jury Instructions

“A defendant challenging a jury instruction as erroneous must show ‘both error and

ensuing prejudice.’” United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (quoting

United States v. Quinones, 511 F.3d 289, 313-14 (2d Cir. 2007)). We will find error “if we

conclude that a charge either fails to adequately inform the jury of the law, or misleads the jury

as to a correct legal standard.” United States v. Doyle, 130 F.3d 523, 535 (2d Cir. 1997).

A. Federal Programs Bribery Instructions

Mazer argues that the district court erred in not including in its charge Mazer’s proposed

defense instruction that he “contends he was not an agent of the City because he was not

authorized to act on behalf of the City.” App. 1772. “While a defendant is entitled to any legally

accurate jury instruction for which there is a foundation in the evidence, he does not have a right

to dictate the precise language of the instruction.” United States v. Banki, 685 F.3d 99, 105 (2d

Cir. 2012). Here, the district court instructed the jury that Mazer “contends that, with regard to

the bribery charge, he was not an agent of the city,” Trial Tr. 5337:17-18, and that “[a]n ‘agent’

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is a person authorized to act on behalf of another person, organization, or government,” id.

5352:9-10. “[W]e examine the charge[] as a whole,” United States v. Quattrone, 441 F.3d 153,

177 (2d Cir. 2006), and together, these two instructions satisfied the district court’s obligation to

include Mazer’s defense theory.

B. Travel Act Conspiracy Instructions

We likewise reject Mazer’s objection to the district court’s instruction on the charge of

conspiracy to violate the Travel Act. According to Mazer, the district court erred in not

clarifying that, unlike federal programs bribery under 18 U.S.C. § 666, for which proof of an

unlawful gratuity is sufficient, bribery under New York law (the predicate “unlawful activity” for

the Travel Act charge) requires proof of a quid pro quo. Mazer did not raise this objection

below, and we therefore review only for plain error.

We conclude that, even if the instructions were flawed, Mazer has failed to carry his

burden to establish prejudice. See United States v. Olano, 507 U.S. 725, 734 (1993). In an

attempt to show prejudice, Mazer argues that he “presented evidence at trial that his interests in

[D.A. Solutions] and Prime View were more akin to joint ventures than the result of any quid pro

quo agreement.” Mazer Br. 86. But this defense theory, if accepted, would have resulted in an

acquittal on the federal programs bribery charges—whether grounded in a quid pro quo or a

gratuity theory—as well, and the jury necessarily rejected Mazer’s theory (and related

interpretation of this evidence) when it convicted him of those charges. We see no reason why a

different jury instruction would have led the jury to accept the joint-venture defense only with

respect to the Travel Act conspiracy charge, and so we find that the district court’s error, if any,

was harmless.

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 C. Honest Services Fraud Instructions

Denault’s challenge to the district court’s instructions for the honest services fraud

charges is also unpersuasive. The Government stated in its rebuttal summation that a quid pro

quo exists when a person “takes any favorable action or provides any benefit to the payor . . . in

exchange for the payments.” Trial Tr. 5250:14-17. Denault argues that a supplemental

instruction was needed to correct the Government’s “erroneous implication that an action taken

in furtherance of undisclosed self-dealing constitutes the requisite quid pro quo under the honest

services fraud statute.” Denault Br. 76. We do not accept the premise of Denault’s argument,

that is, that the Government made any improper suggestion. The Government was correct that

the defining feature of a quid pro quo is the existence of an “exchange.” See United States v.

Bahel, 662 F.3d 610, 635 (2d Cir. 2011).

IV. Evidentiary Objections

Denault also appeals the district court’s decision to admit into evidence a summary chart

created by the Government and to exclude testimony from Denault’s sole defense witness. We

review the district court’s evidentiary rulings for abuse of discretion. See United States v. Han,

230 F.3d 560, 564 (2d Cir. 2000).

A. The Summary Chart

The summary chart reflected the markups that various contractors, subcontractors, and

sub-subcontractors charged the City on a $2.5 million invoice issued to the City. Denault argues

that the chart should have been excluded under Federal of Evidence Rule 403 as substantially

more prejudicial than probative primarily because, according to Denault, the extent of the

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markups was not relevant to City’s bargain. In other words, Denault contends that the markups

were not probative of anything relevant to the trial.

We cannot agree. Whatever the relevancy of the precise extent of the markups to the

City, it is common sense that the overall price factored into the City’s bargain, and the extent of

the markups shows that the pricing was abnormally high for the services rendered. Relatedly,

the summary chart was probative of Mazer’s and Denault’s motives for lobbying for Amendment

6 and Work Order 67—which, together, set the pricing structure on CityTime after 2006—

because the extent of the markups (1) demonstrates how the kickbacks, which were a cut of the

subcontractor’s and sub-subcontractors’ earnings, were funded and (2) helps explain why Mazer

in particular endeavored to keep the scheme going, as his kickback was a percentage of the sub-

subcontractors’ profits, not a flat fee, such that the greater the markup, the greater the kickback.

Accordingly, we find that the district court did not abuse its discretion in admitting the summary

chart.

B. Exclusion of Defense Witness

After the close of the Government’s case, Denault sought to introduce testimony from his

former lawyer, Raymond Lubus. According to Denault’s counsel’s proffer, Lubus would have

testified about a 2003 conversation in which Denault allegedly (1) stated that he was in a

partnership to provide staffing services on CityTime with a fellow SAIC employee and Reddy

Allen, an owner of Technodyne (one of the subcontractors that the jury found paid Denault

kickbacks) and (2) inquired into the legality of receiving “money pursuant to an hourly formula”

as part of this partnership. Denault Special App. 28. The district court excluded the testimony as

inadmissible hearsay.

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 Denault argues that Lubus’s testimony as to Denault’s statements was admissible under

Federal Rule of Evidence 803(3) as “statement[s] of the declarant’s then-existing state of mind

(such as motive, intent, or plan)” and that Lubus’s testimony as to his own statements was

admissible non-hearsay. To the former, Denault’s attempt to shoehorn Lubus’s testimony into

the state of mind exception is betrayed by his own briefing, which demonstrates that Denault

sought Lubus’s testimony not to prove any belief then held by Denault, but to establish his

alleged ownership interest in Technodyne in order to show he engaged only in self-dealing. See,

e.g., Denault Br. 71 (“If Lubus had been permitted to testify, the jury would have heard a

plausible non-criminal basis for Denault’s conduct: his pre-existing partnership interest in

Technodyne.”); see also Skilling v. United States, 561 U.S. 358, 409 (2010). This puts Lubus’s

testimony squarely within the “exception to the exception” contained in Rule 803(3), which

excludes “a statement of memory or belief [offered] to prove the fact remembered or believed.”

See generally United States v. Ledford, 443 F.3d 702, 709 (10th Cir. 2005). To Denault’s latter

argument—that Lubus’s testimony could have been admitted as non-hearsay for its effect on

Denault—we conclude that the exclusion of Lubus’s testimony for that purpose was harmless.

Denault claims that Lubus’s opinion that Denault’s receipt of an hourly fee was not criminal

would have allowed the jury to conclude that Denault only wired money through India to avoid

detection from his employer, SAIC. Simply put, we fail to see, and Denault has not explained,

why SAIC would have had access to or would have been monitoring his bank records. We

therefore reject Denault’s claim that Lubus’s testimony could have persuaded the jury that

Denault’s decision to route the money through India lacked any connection to criminal activity.

See United States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992) (“[E]rror is harmless if we can

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conclude that that testimony was ‘unimportant in relation to everything else the jury considered

on the issue in question, as revealed in the record.’” (quoting Yates v. Evatt, 500 U.S. 391, 403

(1991))).

V. Defendants’ Sentences

Defendants each challenge the district court’s Guidelines calculations and the sufficiency

of the record of the district court’s sentencing determination. We find no reversible error in

either.

Although nothing in the record below warrants resentencing, we remind the district court

that it is best practice to provide a more thorough explanation of the reasons for the sentences

imposed and to do so separately for each defendant. Cf. United States v. Corsey, 723 F.3d 366,

377 (2d Cir. 2013). Even when, as here, a judge is not required to say more, doing so still serves

a “salutary purpose.” See Rita v. United States, 551 U.S. 338, 357 (2007). “Confidence in a

judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of

those reasons helps provide the public with the assurance that creates that trust.” Id. at 356. It

also benefits the defendant. An individualized and non-cursory explanation ensures the

defendant in a multi-defendant case that the district court considered his arguments, which at

least partially quells the concern (that would otherwise linger during the defendant’s term of

incarceration) that his sentence was imposed for the wrong reasons and, in that way, helps to

secure his “trust in the judicial institution.” Additionally, a more tailored explanation informs

the defendant of precisely what it is about his conduct, as distinct from the conduct of his co-

defendants, that prompted the sentence, thereby advancing the aims of specific deterrence. In

sum, while we have no reason to reverse the district court in this instance, we encourage it to

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provide more robust and individualized explanations even when our case law does not mandate

it.

VI. Conclusion

We have considered all of defendants’ remaining arguments, and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK

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