United States v. Martin R. Frankel , 443 F. App'x 603 ( 2011 )

06-1752-cr
United States v. Martin R. Frankel
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 for the Second Circuit, held at the Daniel
2 Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 25th day
3 of October, two thousand eleven.
4
5 PRESENT:
6
7 JOSEPH M. MCLAUGHLIN,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 __________________________________________
13
14 United States of America,
15
16 Appellee,
17
18 v. No. 06-1752-cr
19
20 Martin R. Frankel,
21
22 Defendant-Appellant,
23
24 Sonia Howe, a/k/a Sonia Schulte, a/k/a Sonia Rosse,
25 a/k/a Sonia Stevens, a/k/a Sonia Rae, Gary L. Atnip,
26 John M. Jordan, & Mona Kim, a/k/a Monica Kim,
27
28 Defendants.
29 __________________________________________
30
31
1
1 FOR DEFENDANT-APPELLANT: LAURIE S. HERSHEY, Manhasset, NY.
2
3 FOR APPELLEE: JOHN H. DURHAM, (Sandra S. Glover, Assistant
4 U.S. Attorney, and David B. Fein, U.S.
5 Attorney, on the brief), United States Attorney’s
6 Office for the District of Connecticut.
7
8 Appeal from a judgment of the United States District Court for the District of Connecticut
9 (Ellen Bree Burns, Judge).
10
11 UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the judgment of the District Court is AFFIRMED.
13 Defendant-appellant Martin R. Frankel (“Frankel”) appeals from a March 31, 2006 amended
14 judgment entered by the District Court, sentencing him principally to 200 months of imprisonment and
15 three years of supervised release and ordering restitution in the amount of $204,164,215.79. Frankel,
16 who fled the United States in 1999, pleaded guilty to violations of the Racketeer Influenced and Corrupt
17 Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, RICO conspiracy, wire fraud, and securities fraud
18 statutes following his extradition from Germany. Frankel also appeals from a December 14, 2004 order
19 of the District Court denying his motion for authorization of $40,000 for an accountant to audit the
20 applicable loss amount. We assume the parties’ familiarity with the underlying facts and procedural
21 history of this case.
22
23 Frankel raises five arguments on appeal. First, he contends that the District Court erred by
24 denying his request, four days prior to sentencing,1 for $40,000 in funds for an accountant to audit the
25 loss amount. A district court may authorize the expenditure of funds exceeding $500 under the
26 Criminal Justice Act (“CJA”) “only when ‘necessary for adequate representation.’” United States v. Bah,
27 574 F.3d 106, 118 (2d Cir. 2009) (quoting 18 U.S.C. § 3006A(e)(1)-(2)). Appeals from denials of
28 requests for CJA funds are reviewed for abuse of discretion. See id.
29
30 In this case, Frankel has failed to present evidence that Judge Burns abused her discretion in
31 denying his last-minute motion for $40,000 in forensic accounting funds. By the time Frankel requested
32 the accounting funds on December 6, 2004, the District Court had already adjourned the sentencing
33 date twice, and more than two and a half years had elapsed since Frankel entered his guilty plea on May
34 15, 2002. Contrary to Frankel’s assertion, the government promptly objected to the motion as untimely.
35 Moreover, in the 1998 United States Sentencing Guidelines under which Frankel was sentenced, the
36 greatest possible sentencing enhancement for a fraud offense applied to any loss over $80 million.
1
Frankel was sentenced for the first time on December 10, 2004. Following a Booker remand, the District
Court imposed the same sentence on March 31, 2006.
2
1 U.S.S.G. § 2F1.1(b)(1)(S) (1998). Although Frankel restates his generalized objections to the loss
2 calculation on appeal, he makes no serious argument that the District Court’s loss calculation was
3 misstated by more than $120 million. Based on this record, we find no abuse of discretion and therefore
4 affirm the District Court’s decision to deny Frankel’s request for $40,000 in accounting funds.
5
6 Second, Frankel argues that the District Court violated the rule of specialty by considering the
7 money laundering predicate acts of the RICO and RICO conspiracy counts in calculating the applicable
8 Guidelines range. We do not decide whether Frankel has standing to assert the rule of specialty as a
9 basis to challenge his sentence because his argument fails on the merits. See United States v. Cuevas, 496
10 F.3d 256, 262 (2d Cir. 2007). It is well settled that “our courts cannot second-guess another country’s
11 grant of extradition to the United States.” United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002).
12 In according the required deference, we “presume that if the extraditing country does not indicate that
13 an offense specified in the request is excluded from the extradition grant, the extraditing country
14 considers the offense to be a crime for which extradition is permissible.” Id. (emphasis added).
15
16 In this case, the extradition notice from Germany indicates that Frankel was to be extradited on
17 all of the charges contained in the federal Indictment “except those offences . . . referring to the
18 procedurally independent file of money laundering (count 21-33).” Thus, the notice explicitly
19 contemplated Frankel’s extradition for prosecution on the multi-count federal Indictment, while
20 explicitly excluding the “procedurally independent” money laundering counts. We decline Frankel’s
21 invitation to “second-guess” the extradition order by assuming that Germany intended to exclude the
22 RICO and RICO conspiracy counts as well. Because Frankel did not plead guilty to (and was not
23 sentenced for) the substantive money laundering counts, we find no violation of the rule of specialty.
24
25 Third, Frankel contends that the District Court “abused its discretion”—i.e. erred, see Sims v. Blot,
26 534 F.3d 117, 132 (2d Cir. 2008) (explaining “abuse of discretion”)—by failing to “group” the wire fraud
27 counts and money laundering predicate acts in calculating the applicable Guidelines range. Section
28 3D1.2 of the Guidelines governs the procedure for determining the total combined offense levels in
29 cases of multiple count convictions. Under § 3D1.2(d), the subsection primarily at issue, counts should
30 be grouped “[w]hen the offense level is determined largely on the basis of the total amount of harm or
31 loss, the quantity of a substance involved, or some other measure of aggregate harm . . . .” U.S.S.G. §
32 3D1.2(d).
33
34 Frankel here argues that his wire fraud and money laundering offenses were interrelated and
35 therefore subject to a “measure of aggregate harm.” Id. In United States v. Napoli, 179 F.3d 1 (2d Cir.
36 1999), we considered the application of § 3D1.2(d) and held that money laundering and fraud offenses
37 generally should not be grouped, reasoning that “the guidelines for fraud and money laundering measure
38 different types of harms and measure them in different ways.” Id. at 13. Frankel’s attempts to
3
1 distinguish the Napoli holding are misplaced, as the reasoning of Napoli applies equally to the wire fraud
2 and money laundering in this case. We therefore affirm the District Court’s treatment of the wire fraud
3 counts and money laundering predicate acts as “unrelated” under § 3D1.2(d).
4
5 Fourth, Frankel argues that the District Court abused its discretion by declining to grant a
6 downward departure based on overlapping sentencing enhancements. Courts may consider downward
7 departures “when the addition of substantially overlapping enhancements results in a significant increase in
8 the sentencing range minimum.” United States v. Lauersen, 362 F.3d 160, 164 (2d Cir. 2004), vacated on
9 other grounds, 543 U.S. 1097 (2005). A district court’s “refusal to downwardly depart is generally not
10 appealable,” and is appropriate for appellate review only “when a sentencing court misapprehended the
11 scope of its authority to depart or the sentence was otherwise illegal.” United States v. Valdez, 426 F.3d
12 178, 184 (2d Cir. 2005).
13
14 Here, nothing in the record suggests that the 200-month sentence was illegal, and the sentencing
15 transcript demonstrates that Judge Burns fully comprehended the scope of her departure authority and
16 simply chose not to exercise it. Accordingly, we decline to review the District Court’s decision not to
17 grant a downward departure.
18
19 Finally, Frankel argues that the District Court violated his First Amendment rights by imposing
20 a special condition of supervised release that prohibits him from being involved in the investment of
21 other people’s money. We review the propriety of conditions of supervised release for abuse of
22 discretion. United States v. Brown, 402 F.3d 133, 136 (2d Cir. 2005). Special conditions must be
23 “reasonably related” to certain factors enumerated in the Guidelines and must involve “no greater
24 deprivation of liberty than is reasonably necessary.” United States v. Myers, 426 F.3d 117, 123-24 (2d Cir.
25 2005) (internal quotation marks omitted).
26
27 The special condition at issue states that Frankel “shall not become employed in a position that
28 involves soliciting investment funds from other persons or businesses, nor shall he be directly or
29 indirectly involved in the investment of other people’s money.” The record is clear that the contested
30 condition “reasonably relate[s]” to the factors identified in the Guidelines, including the “nature and
31 circumstances of the offense and the history and characteristics of the defendant,” U.S.S.G.
32 § 5D1.3(b)(1)(A), and “the need to protect the public from further crimes of the defendant,” id. at
33 § 5D1.3(b)(1)(C). The District Court did not err, plainly or otherwise, by imposing a special condition
34 that prohibits Frankel from engaging in the type of fraudulent conduct that resulted in his conviction.
35
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37
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4
1 CONCLUSION
2
3 We reject all of the defendant’s claims on appeal. Accordingly, the judgment of the District
4 Court is AFFIRMED.
5
6 FOR THE COURT,
7 Catherine O’Hagan Wolfe, Clerk of Court
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