United States v. Cassidy , 569 F. App'x 30 ( 2014 )

13-2185
United States v. Cassidy
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 17th day of June, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-2185
16
17 KEVIN CASSIDY,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: DOUGLAS R. JENSEN (Eyal Dror, on
22 the brief), Park & Jensen, LLP,
23 New York, N.Y.
24
25 FOR APPELLEES: EUN YOUNG CHOI (Justin S.
26 Weddle, on the brief), for Preet
27 Bharara, United States Attorney
28 for the Southern District of New
29 York, New York, N.Y.
1
1
2 Appeal from a judgment of the United States District
3 Court for the Southern District of New York (Griesa, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the district court be
7 AFFIRMED.
8
9 Kevin Cassidy appeals from a judgment of the United
10 States District Court for the Southern District of New York
11 (Griesa, J.) convicting him of conspiracy to commit wire
12 fraud, in violation of 18 U.S.C. § 371. Cassidy challenges
13 the portion of the judgment that orders him to pay
14 restitution pursuant to the Mandatory Victims Restitution
15 Act (“MVRA”), 18 U.S.C. §§ 3663A, 3664. We assume the
16 parties’ familiarity with the underlying facts, the
17 procedural history, and the issues presented for review.
18 “[W]e review an MVRA order of restitution
19 deferentially, and we will reverse only for abuse of
20 discretion.” United States v. Gushlak, 728 F.3d 184, 190
21 (2d Cir. 2013) (quoting United States v. Boccagna, 450 F.3d
22 107, 113 (2d Cir. 2006)). “A district court abuses its
23 discretion when a challenged ruling rests on an error of
24 law, a clearly erroneous finding of fact, or otherwise
25 cannot be located within the range of permissible
26 decisions.” Id. (quotation marks omitted).
27 Cassidy argues that the complexity of factual issues
28 involved in calculating the losses to the Bank of Montreal
2
1 renders the restitution order improper. While the MVRA
2 imposes mandatory restitution with the purpose of making
3 victims of crime whole, it does have limitations. See
4 United States v. Maynard, 743 F.3d 374, 377-78 (2d Cir.
5 2014). If the record shows that “determining complex issues
6 of fact related to the cause or amount of the victim’s
7 losses would complicate or prolong the sentencing process to
8 a degree that the need to provide restitution to any victim
9 is outweighed by the burden on the sentencing process,” then
10 the MVRA “shall not apply.” 18 U.S.C. § 3663A(c)(3).
11 Once it is found that complex issues do not lend
12 themselves to resolution in the sentencing context, the
13 sentencing court may not proceed. But it lies within the
14 sound discretion of the district court to decide whether the
15 factual issues underlying a restitution order are so complex
16 as to unduly burden the sentencing process. See United
17 States v. Zangari, 677 F.3d 86, 93 (2d Cir. 2012). Because
18 the Bank of Montreal sought two narrowly defined forms of
19 compensation as restitution, the district court determined
20 that it had before it all of the information necessary for a
21 decision on restitution. The restitution hearings conducted
22 soon after the court’s initial sentencing decision did not
23 greatly prolong the sentencing process. Cassidy argues
24 otherwise, and an exercise of discretion otherwise might
3
1 well have been sound. But we cannot conclude that the
2 district court abused its discretion in deciding that the
3 factual issues could be resolved within the sentencing
4 process.
5 Cassidy presents other arguments regarding the need for
6 an evidentiary hearing, the district court’s application of
7 the standard of proof, and the calculation of the Bank of
8 Montreal’s losses. We conclude that the restitution order
9 was proper for substantially the reasons set forth in the
10 district court’s statements on the record at its October 16,
11 2012 restitution hearing.
12
13 For the foregoing reasons, we hereby AFFIRM the
14 judgment of the district court.
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
4