15‐536
United States v. Tagliaferri
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 4th day of May, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
______________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 15‐536
JAMES TAGLIAFERRI, aka Sealed
Defendant 1,
Defendant‐Appellant.
______________________
FOR APPELLANT: MATTHEW W. BRISSENDEN, Matthew W. Brissenden,
P.C., Garden City, NY.
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FOR APPELLEE: JASON H. COWLEY, Assistant United States Attorney
(Sarah Eddy McCallum, Assistant United States
Attorney, on the brief), for Preet Bharara, United States
Attorney for the Southern District of New York, New
York, NY.
Appeal from the United States District Court for the Southern District of
New York (Abrams, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
Defendant‐Appellant James Tagliaferri appeals from a judgment of
conviction on one count of investment adviser fraud, one count of securities
fraud, four counts of wire fraud, and six counts of offenses in violation of the
Travel Act, 18 U.S.C. § 1952.1 On appeal, Tagliaferri raises a number of
challenges to the sufficiency of the evidence and certain jury instructions. We
assume the parties’ familiarity with the facts and the record below, which we
reference only as necessary to explain our decision. In an opinion per curiam filed
herewith, we reject Tagliaferri’s argument that the jury instructions related to his
1 The jury was unable to reach a verdict on two additional counts charging wire fraud
and a Travel Act violation, and these counts were dismissed on motion of the
Government.
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investment adviser fraud conviction were in error. We address the remainder of
his arguments here and conclude that none constitute reversible error.
I. Travel Act Convictions
Tagliaferri raises two sufficiency challenges to his six Travel Act
convictions: (1) the evidence failed to demonstrate a “corrupt agreement”
between Tagliaferri and those who paid him the kickbacks, and (2) the evidence
failed to demonstrate the offenses fell within the jurisdictional reach of New
York courts. Before we address the merits, we agree with the Government that
these two challenges were forfeited below. The rule of our Circuit is that a Rule
29 motion that identifies specific grounds for a judgment of acquittal forfeits
grounds not raised in that motion. See United States v. Delano, 55 F.3d 720, 726
(2d Cir. 1995); United States v. Rivera, 388 F.2d 545, 548 (2d Cir. 1968). Because
Tagliaferri admits he did not raise these specific grounds in his Rule 29 motion,
they are unpreserved, and we review for plain error. See Delano, 55 F.3d at 726.
a. Corrupt Agreement
Tagliaferri argues that to violate New York’s commercial bribe receiving
statute—the predicate state offense to his Travel Act violations—New York law
requires evidence of a corrupt agreement, citing our decision in Blue Tree Hotels
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Investment (Canada) Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212
(2d Cir. 2004). There, addressing New York’s commercial bribery statutes in the
context of the Robinson‐Patman Act, we concluded that “one cannot be guilty of
receiving a commercial bribe unless someone else is guilty of paying it.” Id. at
222. In response, the Government describes Blue Tree’s language as dicta and
urges us to apply the New York Court of Appeals’ decision in People v. Bac Tran,
80 N.Y.2d 170 (1992), in which it concluded that the language “agreement or
understanding” in New York’s statute criminalizing the payment of bribes to a
public official—language that is identical to the commercial bribe receiving
statute—permitted conviction on the basis of the payor’s unilateral
understanding that the public official would be influenced by the payment, id. at
178.
The interaction between Blue Tree and Bac Tran—as well as our decision in
United States v. Geibel, 369 F.3d 682 (2d Cir. 2004) (addressing commercial bribe
paying), and the Court of Appeals’ decision in People v. Alvino, 71 N.Y.2d 233
(1987) (holding that bribe receiving by a public official requires evidence of a
corrupt agreement)—leads us to conclude that any possible error was certainly
not plain and did not affect Tagliaferri’s substantial rights. See United States v.
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Olano, 507 U.S. 725, 732, 734 (1993) (“There must be an ‘error’ that is ‘plain’ and
that ‘affect[s] substantial rights.’ . . . ‘Plain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” (first alteration in original)); see also Puckett v. United
States, 556 U.S. 129, 135 (2009) (“[T]he legal error must be clear or obvious, rather
than subject to reasonable dispute.”); United States v. Weintraub, 273 F.3d 139, 152
(2d Cir. 2001) (“For an error to be plain, it must, at a minimum, be clear under
current law.” (internal quotation marks omitted)). Because the New York Court
of Appeals has not spoken directly to commercial bribe receiving—and Bac Tran’s
interpretation of the statutory language post‐dated Alvino—it is not clear
whether Alvino’s “corrupt agreement” requirement or Bac Tran’s “unilateral
understanding” interpretation should guide. While Blue Tree and Geibel post‐
date Alvino and Bac Tran, we did not address the argument raised here by
Tagliaferri. Thus, our explanation of the structure and meaning of the New York
commercial bribery statutes cannot be considered dispositive. Accordingly, the
application of New York’s commercial bribe receiving statute to Tagliaferri’s
conduct is, at minimum, “subject to reasonable dispute,” and thus we lack
discretion to disturb Tagliaferri’s conviction. Puckett, 556 U.S. at 135.
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b. Jurisdiction
Tagliaferri next argues that the conduct underlying his Travel Act
convictions falls outside of the reach of the geographical jurisdiction of New
York courts, see N.Y. Crim. Proc. Law §§ 20.20, 20.30, and accordingly, his
convictions cannot be sustained. This argument is without merit. In requiring a
predicate state offense, the Travel Act incorporates the “substantive offense” but
not “the rules of evidence and procedure that are in force in the State where the
crime was committed.” United States v. Corallo, 413 F.2d 1306, 1323 (2d Cir. 1969).
We have never held that a state court’s jurisdictional limitations are substantive.
Such requirements are far more analogous to procedural limitations than to the
conduct elements that we import into the federal racketeering statutes. See
United States v. Diaz, 176 F.3d 52, 100 (2d Cir. 1999) (“[R]eferences to state law in
[racketeering] statutes merely serve a definitional purpose, that is, to identify
generally the kind of conduct made illegal by the federal statute.”); United States
v. Friedman, 584 F.2d 535, 565–66 (2d Cir. 1988) (holding that New York’s double
jeopardy rules “do not affect the generic definition of the crime of bribery” and
were merely “procedural rules governing prosecutions for all crimes in New
York” and thus “irrelevant under RICO”).
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A federal court’s geographical reach over criminal offenses is governed by
the Constitution and the Federal Rules of Criminal Procedure. See United States
v. Saavedra, 223 F.3d 85, 88 (2d Cir. 2000) (citing U.S. Const. art. III, § 2, cl. 3; Fed.
R. Crim. P. 18). Tagliaferri has raised no argument that his prosecution in the
Southern District of New York failed to satisfy these provisions. In the absence
of precedent suggesting that state jurisdictional limitations are substantive rather
than procedural, we cannot say that the District Court’s failure to vacate, sua
sponte, the Travel Act convictions constituted a “clear” or “obvious” error under
governing law. See Olano, 507 U.S. at 734. Accordingly, we lack discretion to
disturb Tagliaferri’s convictions.
II. Securities Fraud Conviction
Tagliaferri argues that the District Court erred in instructing the jury that
they were not required to find that Tagliaferri intended to harm his clients in
order to convict him under section 10(b) of the Securities Exchange Act and Rule
10b‐5 of the United States Securities and Exchange Commission. We have
recently rejected this argument, see United States v. Litvak, 808 F.3d 160, 178–79
(2d Cir. 2015), and accordingly, there was no error in the District Court’s charge.
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III. Wire Fraud Convictions
a. Right to Control Instruction
Tagliaferri contends that the District Court erred by instructing the jury
they could find intent to harm on a theory that Tagliaferri provide false or
fraudulent information that deprived them of the “right to control” their money.
Tagliaferri admits this argument was not raised below and contends it should be
reviewed for plain error. The Government responds that the argument was not
forfeited but waived and thus cannot be reviewed at all on appeal. We agree.
In contrast to forfeiture, which arises “in most instances due to mistake or
oversight,” “waiver can result only from a defendant’s intentional decision not to
assert a right.” United States v. Spruill, 808 F.3d 585, 596–97 (2d Cir. 2015). If the
defendant waives, rather than forfeits, a claim of error, the ground is
“extinguish[ed]” and completely unreviewable on appeal. Olano, 507 U.S. at 733;
accord United States v. Kon Yu‐Leung, 51 F.3d 1116, 1121 (2d Cir. 1995). We have
distinguished between “acquiescence in the judge’s ruling” and “approval or
invitation of it,” with only the latter category constituting waiver. United States v.
Crowley, 318 F.3d 401, 414 (2d Cir. 2003).
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We conclude that Tagliaferri waived his challenge to the instruction.
During the charging conference, Tagliaferri’s counsel responded affirmatively
when the judge asked him whether fraud could exist “if the person is deprived of
the right to make decisions about how they use their assets.” J.A. 109.
Subsequently, after the District Court invited the parties to write letters
proposing jury instructions on this point, the Government suggested the
language ultimately adopted, and Tagliaferri’s counsel both “join[ed] the
Government’s proposal as to the ‘right to control’ instruction” and reiterated his
agreement in open court the same day. J.A. 126. In cases such as this one, where
the parties have conferred and affirmatively agreed to the District Court’s
decision now challenged on appeal, we have concluded that the agreement
constitutes a true waiver. See Spruill, 808 F.3d at 596–99; United States v. Binday,
804 F.3d 558, 582–83 (2d Cir. 2015). Accordingly, Tagliaferri’s claim of error has
been extinguished and cannot be heard on appeal. See Olano, 507 U.S. at 733.
b. Financial Loss
Tagliaferri argues on appeal, as he did below, that the District Court erred
in not instructing the jury that the wire fraud convictions required the jury to
find that Tagliaferri contemplated “an actual financial loss to the client.”
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However, our precedents do not require contemplation of actual financial loss in
wire fraud—instead, we have sustained convictions where victims were
deprived “of potentially valuable economic information,” such as where the
deceit “affected the victim’s economic calculus” or “exposed the [victim] to
unexpected economic risk.” Binday, 804 F.3d at 570–71 (internal quotation marks
omitted). As we recently explained, “it is not necessary that a defendant intend
that his misrepresentation actually inflict a financial loss—it suffices that a
defendant intend that his misrepresentations induce a counterparty to enter a
transaction without the relevant facts necessary to make an informed economic
decision.” Id. at 579; see also id. at 578 (noting that fraudulent intent may be
affirmed where “misrepresentations foreseeably concealed economic risk or
deprived the victim of the ability to make an informed economic decision”). The
information Tagliaferri concealed from his clients—the existence of kickbacks
and cross‐trading, as well as the investment that Tagliaferri attempted to
characterize as a loan through the creation of fictitious notes—is unquestionably
“valuable economic information” that would “affect[] the victim’s economic
calculus.” Id. at 570 (internal quotation marks omitted). The District Court did
not err in instructing the jury that Tagliaferri did not need to contemplate an
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actual financial loss in order to intend to deprive his clients of the right to control
their assets.
c. Final Challenges
Tagliaferri makes two final challenges to the Government’s right to control
theory: that it was (1) unconstitutionally vague and (2) a constructive
amendment of the indictment.
First, the District Court instructed the jury that concealing information
alone was insufficient; instead, the jury had to find that Tagliaferri intended to
deprive his clients of their right to control their money or property through “false
or fraudulent information that is of some independent value and that affects his
ability to make discretionary economic decisions about what to do with that
money or property.” J.A. 309. There is nothing in the instruction that “fails to
provide a person of ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously discriminatory
enforcement.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18 (2010) (internal
quotation marks omitted). More importantly, Tagliaferri’s conduct here—
involving kickbacks, cross‐trading, and creation of fictitious sub‐notes—is the
kind of conduct “clearly proscribed” by the wire fraud statute; accordingly,
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Tagliaferri “cannot complain of the vagueness of the law as applied to the
conduct of others.” Id. at 19 (internal quotation marks omitted).
Second, the indictment here charged Tagliaferri with a scheme to defraud
his clients by depriving them of money or property through kickbacks, cross‐
trading, and fictitious sub‐notes. J.A. 61–63. Nothing about advancing a right to
control theory of deprivation “so modif[ied] essential elements of the offense
charged that there is a substantial likelihood that the defendant may have been
convicted of an offense other than that charged in the indictment.” Binday, 804
F.3d at 584 (internal quotation marks omitted). Tagliaferri was “given notice of
the core of criminality to be proven at trial,” United States v. Agrawal, 726 F.3d
235, 260 (2d Cir. 2013) (emphasis and internal quotation marks omitted), and
consequently, the indictment was not constructively amended.
IV. Conclusion
We have considered Tagliaferri’s remaining arguments and find them to
be without merit. For the reasons stated above, the judgment of the District
Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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