11-3591-cr(L)
United States v. Goffer
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of July, two thousand thirteen.
5
6 PRESENT: JOHN M. WALKER, Jr.,
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee, No. 11-3591-cr(L)
17 No. 11-3778-cr(CON)
18 -v.- No. 11-4193-cr(CON)
19 No. 11-4409-cr(CON)
20 ZVI GOFFER, CRAIG DRIMAL, MICHAEL KIMELMAN,
21
22 Defendants-Appellants,
23
24 JASON GOLDFARB, ARTHUR CUTILLO,
25 EMANUEL GOFFER, DAVID PLATE,
26
27 Defendants.*
28
29
30
*
The Clerk of the Court is directed to amend the
caption in the case to conform with the above.
1 FOR APPELLANT ALEXANDER MARTIN DUDELSON, Law Office of
2 ZVI GOFFER: Alexander M. Dudelson, Brooklyn, NY
3
4 FOR APPELLANT MICHAEL S. SOMMER (Morris J. Fodeman,
5 MICHAEL KIMELMAN: Scott D. Tenley, on the brief) Wilson
6 Sonsini Goodrich & Rosati, P.C., New
7 York, NY
8
9 FOR APPELLANT ARLENE VILLAMIA-DRIMAL, Weston, CT
10 CRAIG DRIMAL:
11
12 FOR APPELLEE ANDREW L. FISH, Assistant United States
13 UNITED STATES Attorney (Richard C. Tarlowe, Assistant
14 OF AMERICA: United States Attorney, on the brief),
15 for Preet Bharara, United States Attorney
16 for the Southern District of New York,
17 New York, NY.
18
19 Consolidated appeals from the United States District
20 Court for the Southern District of New York (Sullivan,
21 Judge).
22
23 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
24 AND DECREED that the judgments of the District Courts are
25 AFFIRMED, with the exception of the forfeiture order, which
26 is VACATED and REMANDED.
27 Appellants Zvi Goffer, Michael Kimelman, and Craig
28 Drimal appeal from judgments of conviction entered on
29 September 22, 2011; October 13, 2011; and September 1, 2011
30 respectively, in the United States District Court for the
31 Southern District of New York (Richard J. Sullivan, Judge).
32 Defendants’ challenges to their convictions and sentences
33 are discussed in a related opinion, as are relevant facts
2
1 and procedural history. Goffer, –- F.3d --, 2013 WL -- (2d
2 Cir. 2013).
3 Defendants raise additional challenges to their
4 convictions, including that (1) Section 10(b) of the
5 Securities Exchange Act of 1934 is unconstitutionally vague;
6 (2) the wiretap evidence in this case was improperly
7 minimized and should have been suppressed; (3) the jury
8 instructions related to material, nonpublic information were
9 erroneous; (4) Goffer was punished for refusing to plead
10 guilty; (5) Goffer’s counsel was constitutionally deficient;
11 and (6) the forfeiture order was excessive. Although we
12 affirm Defendants’ convictions and sentences, we vacate and
13 remand the decision regarding Goffer’s forfeiture order.
14 Drimal challenges his conviction; however, he knowingly
15 (and very explicitly) waived his right to appeal his
16 conviction by entering an unconditional guilty plea. Plea
17 Tr. 6, 12. “A defendant who pleads guilty unconditionally
18 . . . waives all challenges to prosecution except those
19 going to the court’s jurisdiction.” United States v.
20 Lasaga, 328 F.3d 61, 63 (2d Cir. 2003). Drimal’s challenges
21 to the constitutionality of the Securities Exchange Act of
22
3
1 1934 and to the wiretap minimization procedures used by the
2 Government in this case are therefore dismissed.1
3 Goffer contends that the district court erred in
4 instructing the jury regarding the definition of material,
5 nonpublic information. Goffer proffered proposed
6 instructions that he asserts would have better defined this
7 information by excluding “confirmation[s] of an event that
8 is fairly obvious to investors knowledgeable about the
9 company or the particular security at issue.” Goffer Brief
10 at 28. An identical challenge to identical jury
11 instructions was rejected in United States v. Contorinis,
12 692 F.3d 136, 141-45 (2d Cir. 2012). Compare id. at 142-44
13 with Tr. 2012-14. We therefore affirm the district court’s
14 jury instructions.
15 Goffer contends that he was improperly punished for
16 exercising his constitutional right to stand trial. See
17 Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). His
18 argument is premised on the district court’s decision not to
19 apply the acceptance of responsibility deduction pursuant to
20 U.S.S.G. § 3E1.1. “We maintain a distinction between
1
We note that, should we reach these arguments, we would
reject both for substantially the same reasons they were rejected
by the district court.
4
1 increasing the severity of a sentence for a defendant’s
2 failure to cooperate and refusing to grant leniency.”
3 United States v. Whitten, 610 F.3d 168, 195 (2d Cir. 2010)
4 (internal quotation marks and emphasis omitted). Here, the
5 district court distinguished between the two and indicated
6 that Goffer was being denied a benefit, but was not being
7 punished. Sentencing Tr. 40. We find that Goffer was not
8 punished for standing trial.
9 Goffer contends that his counsel was ineffective under
10 the Sixth Amendment based on his failure to object to the
11 application of the leadership enhancement under U.S.S.G.
12 § 3B1.1. See Strickland v. Washington, 466 U.S. 668, 686,
13 694 (1984). Adhering to the Supreme Court’s preference that
14 such claims be litigated in the district court pursuant to
15 “a motion brought under [28 U.S.C.] § 2255,” Massaro v.
16 United States, 538 U.S. 500, 504 (2003), we decline to
17 address Goffer’s argument. See United States v. Morris, 350
18 F.3d 32, 39 (2d Cir. 2003).2
19 Finally, Goffer contends that the district court erred
20 in calculating his forfeiture. In light of our decision in
2
We note that Goffer’s obvious leadership role in the
conspiracy makes us dubious as to the likelihood that such a
claim would pass either Strickland prong.
5
1 Contorinis, 692 F.3d at 145-48, the Government concedes that
2 the forfeiture order should not account for gains realized
3 by Goffer’s employers (the Schottenfeld Group, LLC and the
4 Galleon Group). Insofar as Goffer’s forfeiture order
5 includes “funds never acquired by him or someone working in
6 concert with him,” this was error. Id. at 147. As in
7 Contorinis, “we leave to the district court to decide on
8 remand” how much of “appellant’s interest in salaries,
9 bonuses, dividends, or enhanced value of equity . . . can be
10 said to be money ‘acquired’ by the defendant through the
11 illegal transactions resulting in the forfeiture.” Id. at
12 148 n.4 (internal quotation marks and citation omitted).
13 Insofar as Goffer argues that the gains realized by
14 convicted co-conspirators should not be included in his
15 forfeiture order, this argument is rejected. “[A] court may
16 order a defendant to forfeit proceeds received by others who
17 participated jointly in the crime, provided the actions
18 generating those proceeds were reasonably foreseeable to the
19 defendant.” Id. at 147. Goffer passed his tips to co-
20 conspirators for the express purpose of allowing them to
21 make trades based on the inside information; their trades
22 were reasonably foreseeable.
6
1 We have considered Defendants’ remaining arguments and
2 find them to be without merit. For the reasons stated
3 above, the judgments of conviction and sentences ordered by
4 the district court are AFFIRMED; Goffer’s forfeiture order
5 is VACATED and the case is REMANDED to enter an order
6 consistent with this opinion.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
7