United States v. Romano ( 2022 )

15-992(L)
United States v. Romano
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
22nd day of November, two thousand twenty-two.
Present:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 15-992(L)
19-3507(Con)
19-3573(Con)
19-3815(Con)
22-1782(Con)
JOSEPH ROMANO, VINCENT ROMANO, AND
KEVIN WELLS,
Defendants-Appellants,
SALVATORE ROMANO, MICHAEL DIBARI, AKA
BOB ATWELL, BILL GRAYSON, AKA MARK
VAITH, AND RUSSELL BARNES, AKA RUSTY,
AKA RUSS, AKA KEVIN WELLS,
Defendants.
_____________________________________
For Appellee: Susan Corkery, Lauren H. Elbert, Assistant United
1
States Attorneys, for Breon Peace, United States
Attorney for the Eastern District of New York,
Brooklyn, NY
For Defendant-Appellant Joseph Gary M. Kaufman, Law Office of Gary Kaufman,
Romano: PLLC, New York, NY
For Defendant-Appellant Vincent Arthur Kenneth Womble, Jr., Zeman & Womble,
Romano: LLP, New York, NY
For Defendant-Appellant Kevin Wells: Peter J. Tomao, Garden City, NY
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Eric R. Komitee, Judge) entered on July 19, 2022.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.
Defendants-Appellants Joseph Romano, Vincent Romano, and Kevin Wells appeal from
an amended judgment in the United States District Court for the Eastern District of New York,
entered against them on July 19, 2022. The judgment followed a limited remand from this Court,
which directed the District Court primarily to review Defendants’ objections to the magistrate
judge’s report and recommendation (“R&R”) concerning the restitution entered in this case. See
United States v. Romano, No. 15-992, 2022 WL 402394 (2d Cir. Feb. 10, 2022). The District
Court conducted a de novo review of the objections and adopted the R&R in full, with the
exception of a fifteen-dollar reduction in the restitution owed to one victim. Defendants’ appeals
were reinstated, pursuant to the terms of the limited remand, following their letter request dated
July 16, 2022. Dkt. 316. We assume the parties’ familiarity with the case.
We review issues of law in a restitution order “de novo, findings of adjudicative fact for
clear error, and the multi-factor balancing aspects of such an order for abuse of discretion.” United
States v. Jaffe, 417 F.3d 259, 263 (2d Cir. 2005). Defendants argue, first, that the District Court
2
erred in determining the restitution amounts. For largely the reasons given in Judge Komitee’s
thorough analysis, we reject these arguments. Defendants charge the Government with relying on
unqualified experts who used an unexplained valuation methodology, but as Judge Komitee noted,
those experts—including a former president of the Professional Numismatics Guild—had ample
experience and qualifications, and their estimates of the value-to-price ratio closely matched the
ratio between the price Defendants paid for their inventory of coins and their revenue during the
conspiracy. Defendants further complain that the Government used small sample sizes and did
not document the identity of the valued coins. These arguments fall short: the Government
sampled 2,200 coins and relied on sworn affidavits to establish the victims’ ownership. Finally,
the calculation errors Defendants allege are, as the Government explains, not errors at all: they
reflect merely instances in which the Government relied on actual losses (for victims who sold
their coins) rather than imputed losses (for victims who kept them).
Beyond Defendants’ general arguments, Wells specifically objects to the restitution
calculation as applied to him. He claims that he caused less of the loss than did the other
defendants. But the calculation already takes into account that he joined the conspiracy later than
the others. And once Wells signed up, he became liable for the full loss from that point onwards
so long as he “knew or reasonably should have known about some or all of the conspiracy’s past
[conduct].” See United States v. Bengis, 783 F.3d 407, 413 (2d Cir. 2015). Nor was Wells
improperly denied the chance “to examine the witness who prepared” the restitution calculation
that applied to him. Wells Br. at 18. On the contrary, Wells was offered the chance to question
Agent Hessle at the July 2014 restitution hearing, an opening that—although he did not take it—
constituted the “opportunity to rebut the Government’s allegations” to which he was entitled.
3
United States v. Sabhnani, 599 F.3d 215, 258 (2d Cir. 2010) (quoting United States v. Maurer, 226
F.3d 150, 151–52 (2d Cir. 2000)).
Next, Wells and the Romanos argue that the District Court erred by declining to make the
restitution order joint and several with two other defendants. We disagree. Our limited remand
noted that Defendants and the Government agreed that the amended judgments entered October
16, 2019, “erroneously omitted certain co-Defendants from the list” of those “held jointly and
severally liable for the restitution amount” and instructed the District Court to “[c]orrect any
clerical errors.” Romano, 2022 WL 402394 at *3 n.5, *6. The District Court, however, determined
that the omission was not a clerical error, which must be the kind of “minor, uncontroversial”
mistake that “a clerk or amanuensis might commit.” Special App’x 104 (quoting United States v.
Lansing, 71 F. App’x 84, 87 (2d Cir. 2003) (summary order) (quoting United States v. Werber, 51
F.3d 342, 347 (2d Cir. 1995))). Because the record does not clearly reveal the previous judge’s
intent to include those two defendants in the amended judgments of October 16, 2019, see Special
App’x. at 104–05, the district court here acted within its “considerable discretion” in fashioning
an appropriate restitution order, United States v. Yalincak, 30 F.4th 115, 122 (2d Cir. 2022); see
also Lansing, 71 F. App’x at 87 (“[Rule 36] does not permit a court to amend a judgment ‘to
effectuate its unexpressed intentions at the time of sentencing.’” (quoting Werber, 51 F.3d at 343)).
Finally, Joseph Romano argues that the District Court violated his Fifth Amendment right
to due process by denying his request for appointed counsel after he had elected to proceed pro se.
Because Romano could have raised this argument on the first appeal, and did not, he has waived
it. See United States v. Ben Zvi, 242 F.3d 89, 96 (“[A] decision made at a previous stage of
litigation, which could have been challenged in the ensuing appeal but was not, becomes the law
of the case.” (quoting Cnty. of Suffolk v. Stone & Webster Eng’g Corp., 106 F.3d 1112, 1117 (2d
4
Cir. 1997))). Romano’s related contention that the failure to hold a new restitution hearing on
remand violated due process cuts no more ice. Our remand was limited: It required the District
Court to review “the timely filed objections of Vincent Romano and Wells” to the R&R, not to
restart the restitution hearing process from scratch. Romano, 2022 WL 402394 at *6. Accordingly,
the District Court’s adherence to our instructions did not violate due process.
* * *
We have considered the Defendants’ remaining arguments and find them unpersuasive.
The judgment of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5