19-2522-cr
United States v. Cooney
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
9th day of February, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 19-2522
BEVAN COONEY,
Defendant-Appellant,
JASON GALANIS, GARY HIRST, JOHN GALANIS, also
known as Yanni, HUGH DUNKERLEY, MICHELLE
MORTON, DEVON ARCHER,
Defendants.
_____________________________________
FOR APPELLEE: NEGAR TEKEEI for Audrey Strauss, United
States Attorney for the Southern District of
New York (Rebecca Mermelstein, David
Abramowicz, on the brief), New York, NY
FOR DEFENDANT-APPELLANT: PAULA JACLYN NOTARI, The Law Office of
Paula J. Notari, New York, NY (Ezra Spilke,
Law Offices of Ezra Spilke, PLLC,
Brooklyn, NY, on the brief)
On appeal from a final judgment of the United States District Court for the Southern
District of New York (Ronnie Abrams, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court, entered on July 31, 2019, is AFFIRMED in
part, VACATED in part, and REMANDED for entry of judgment as modified by this order.
Following a trial, a jury found Defendant-Appellant Bevan Cooney guilty of substantive
and conspiratorial securities fraud, see 15 U.S.C. §§ 78j(b), 78ff; 18 U.S.C. § 371; 17 C.F.R.
§ 240.10b-5. Cooney now appeals from the part of his judgment ordering him to pay $43,785,176
in restitution to the crimes’ victims: the Wakpamni Lake Community Corporation of the Oglala
Sioux Tribe (the “Wakpamni”) and the pension fund clients of two investment firms.
Cooney faults the restitution order for three reasons: (1) the Wakpamni did not suffer actual
losses because the tribe is immune to suit by bondholders; (2) the court failed to provide a complete
accounting of each victim’s losses; and (3) the court did not make factual findings clearly enough
to permit appellate review. We deferentially review orders of restitution pursuant to the Mandatory
Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A, and will vacate only for abuse
of discretion. See United States v. Gushlak, 728 F.3d 184, 190 (2d Cir. 2013). When, as in the case
of Cooney’s second and third challenges, a defendant has not preserved his objections, he bears
the heavier burden of showing plain error. See United States v. Zangari, 677 F.3d 86, 96–97 (2d
Cir. 2012). We assume the reader’s familiarity with the record.
First, the district court ordered $507,740 in restitution to the Wakpamni for construction
expenses incurred as part of bond-backed developments ($150,000) and for the expected cost of
finishing those projects ($357,740). The district court separately ordered Cooney to make
$43,277,436 in restitution to the bondholders whose assets the scheme misappropriated. Thus,
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Cooney’s argument concerning the tribe’s sovereign immunity to bondholder suit is irrelevant to
the restitution awarded to the tribe.
Second, Cooney’s claim that the district court did not account for each victim’s losses fails
because each victim’s loss amount was specified in the Schedule of Victims, attached to the district
court’s restitution order and filed under seal pursuant to statutory privacy requirements. See 18
U.S.C. §§ 3664(d)(4), 377l(a)(8); Fed. R. Crim. P. 49.1. The district court orally explained its
reasoning in determining these loss amounts at the sentencing hearing. On this record, we find no
error—much less plain error—in the district court’s reliance on the scheduled loss amounts in
calculating Cooney’s restitution obligation.
Finally, Cooney’s alternative argument, that the district court’s factual findings concerning
the victims’ loss amounts were insufficient to permit appellate review, is equally meritless because
the district court’s sentencing statement and the Schedule of Victims detail a sound methodology
for identifying each victim’s loss amount.
Apart from Cooney’s claims, the Government argues that Cooney’s restitution obligation
to the Wakpamni should be reduced to include only the actual $150,000 loss, spent on unfinished
construction projects in reliance on the conspirators’ false promises, and to exclude $357,740 in
expectation damages for anticipated costs to complete those projects, see United States v.
Boccagna, 450 F.3d 107, 119 (2d Cir. 2006). The Wakpamni do not object to the government’s
proposal. We agree, and therefore direct the district court to reduce its restitution award by
$357,740 from $43,785,176 to $43,427,436.
* * *
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We have considered Cooney’s remaining arguments and we find them to be without merit.
We therefore AFFIRM the judgment of the district court in all respects, except that we VACATE
that part awarding restitution, and REMAND with direction to enter a modified restitution order
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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