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14-0605-cr(L) 

United States v. Ramlochan

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 24th

day of August , two thousand fifteen. 

PRESENT: 

 

JOSÉ A. CABRANES, 

REENA RAGGI, 

RICHARD C. WESLEY, 

Circuit Judges. 

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UNITED STATES OF AMERICA, 

 Appellee,

 Nos. 14-0605-cr (L) 

 -v.- 14-2182-cr (CON) 

 14-2282-cr (CON) 

SHANE BROWNE, CASSANDRA CEAN, 

Defendants-Appellants,

KIM RAMLOCHAN, also known as KIM CUPELES, 

also known as KIM YOHAY, BIBI OMAR, also known as ZAMEENA OMAR,

 Defendant.*

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FOR DEFENDANT BROWNE: Meredith S. Heller, Tor Ekeland, P.C, 

Brooklyn, New York.

 * The Clerk of Court is directed to amend the official caption in this case to conform with the above. 
 

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FOR DEFENDANT CEAN: LOUIS M. FREEMAN, Freeman, Nooter & 

Ginsberg, New York, New York. Vivian 

Shevitz, South Salem, New York. 

FOR APPELLEE: MARGARET E. GANDY, Jo Ann Navickas, 

Maria Cruz Melendez, Assistant United States 

Attorneys, for Kelly T. Currie, Acting United 

States Attorney for the Eastern District of 

New York, Brooklyn, New York. 

Appeal from a June 20, 2014 judgment and an April 14, 2014 judgment of the United States 

District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the June 20, 2014 judgment and the April 14, 2014 judgment of the District 

Court are AFFIRMED, and the cause REMANDED for the limited purpose of permitting entry 

of the revised restitution order. 

Defendants Cassandra Cean and Shane Browne appeal their judgments of conviction from 

the District Court.1

 Following a jury trial, Cean was convicted of conspiracy to commit wire fraud in 

violation of 18 U.S.C. §§ 1343 and 1349, and four counts of wire fraud in violation of 18 U.S.C. 

§ 1343. The District Court sentenced Cean principally to 87 months’ imprisonment and three years’ 

supervised release. Browne pleaded guilty to conspiring to commit wire fraud in violation of 18 

U.S.C. §§ 1343 and 1349. He was sentenced principally to 51 months’ imprisonment and three years’ 

supervised release. Both Cean and Browne were ordered to pay restitution of $1,205,355. 

Defendants raise numerous arguments on appeal. Cean contends that: (1) her indictment was 

constructively amended; (2) the District Court improperly admitted evidence of a subsidiary 

conspiracy; (3) the government improperly referenced inadmissible evidence when it cross-examined 

her; (4) the District Court erred in denying her motion for a new trial or an evidentiary hearing 

based on alleged juror misconduct; (5) her sentence was both procedurally and substantively 

unreasonable; and (6) the District Court erred in calculating her restitution amount.2

 Browne argues 

that: (1) the District Court erred in calculating his restitution amount; and (2) his sentence was both 

 1 Although this summary order only resolves the cases of Cassandra Cean and Shane Browne, the 

consolidated appeal originally involved another defendant, Kim Ramlochan. In an order filed the same day 

as this summary order, we reject the Anders motion filed by Ramlochan’s counsel as well as the 

government’s motion for summary affirmance. We also direct the parties to file a scheduling notification 

and direct the Clerk’s office to unconsolidate Ramlochan’s appeal from the appeals of her co-defendants. 

2 In response to a letter from Cean’s counsel, dated August 14, 2015, we granted permission for Cean 

to join in Browne’s argument that the District Court erred in setting the restitution amount in the case. 
 

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procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying 

facts and the procedural history of the case. 

DISCUSSION 

I. Constructive Amendment of the Indictment 

An indictment has been constructively amended when the evidence at trial or a jury charge 

broadens the basis for conviction from the one contained in the indictment. See United States v. 

Milstein, 401 F.3d 53, 65 (2d Cir. 2005). “To prevail on a constructive amendment claim, a defendant 

must demonstrate that the terms of the indictment are in effect altered by the presentation of 

evidence and jury instructions which so modify essential elements of the offense charged that there is a 

substantial likelihood that the defendant may have been convicted of an offense other than that 

charged in the indictment.” United States v. D’Amelio, 683 F.3d 412, 416 (2d Cir. 2012) (internal 

citation and quotation marks omitted). There is no constructive amendment “where a generally 

framed indictment encompasses the specific legal theory or evidence used at trial.” United States v. 

Salmonese, 352 F.3d 608, 620 (2d Cir. 2003) (internal quotation marks omitted). 

Cean argues that the government constructively amended the indictment as the government 

pressed a “broader ‘scheme’” at trial. Appellant Cean’s Br. 40. But the essential elements of the 

scheme described in the indictment—that the defendants, including Cean, perpetrated mortgage 

fraud—were the essential elements of the scheme proved at trial. Indeed, the government may have 

also proved additional facets of that mortgage fraud scheme, including the manipulation of certain 

individuals as straw buyers. But that all emanated from the same criminal offenses committed by the 

defendants and is thus not a constructive amendment of the indictment. 

II. Evidentiary Issues 

Cean also contends that she was improperly prejudiced by the introduction of evidence 

relating to a subsidiary conspiracy to prevent Tyroon Comacho from going to the authorities.3

 She 

claims that the government never established that she was part of any specific conspiracy related to 

Comacho, a necessary predicate for admitting a co-conspirator’s statement under Fed. R. Evid. 

801(d)(2)(E). The government argues that the evidence relating to Comacho was not admitted to 

prove the truth of the matter asserted or as a co-conspirator statement but only to provide context 

for Comacho’s payment of money to Cean after the meeting. Moreover, the government argues that 

 3 Cean also claims that statements relating to the silencing of Joanne Legair were improperly 

admitted. This evidence, however, was properly admitted under Rule 801(d)(2)(E) as a co-conspirator 

statement made in furtherance of the underlying mortgage fraud conspiracy in this case. 
 

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even if evidence about the conspiracy related to Comacho was erroneously admitted, it did not 

constitute plain error.4

 

Upon review of the record, we agree with the government that the admission of evidence 

relating to the conspiracy to silence Comacho was not plain error. To constitute plain error, “there 

must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are 

met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the 

error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. 

United States, 520 U.S. 461, 466–67 (1997) (citations, internal quotation marks, and alterations 

omitted). Cean’s challenge fails the plain error test because the purported evidentiary error did not 

impugn the fairness or integrity of the trial. There was no evidence presented that Cean was aware 

of the purpose of the conspiracy to silence Comacho nor was she directly implicated in the financial 

arrangement that was meant to ensure Comacho’s silence. Moreover, in light of the other record 

evidence of Cean’s guilt presented at trial, admission of this evidence did not have a “substantial and 

injurious effect or influence in determining the jury’s verdict.” United States v. Estrada, 430 F.3d 606, 

622 (2d Cir. 2005) (internal quotation marks omitted). 

Cean also asserts that the District Court erred in permitting cross-examination about her 

alleged participation in a prior fraudulent real estate transaction. But trial judges are given broad 

discretion in determining the scope of cross-examination, see United States v. Blanco, 861 F.2d 773, 781 

(2d Cir. 1988), and we find no abuse of that discretion here. At trial, Cean testified that she was an 

unknowing participant in the mortgage fraud scheme at issue in the case. The government’s crossexamination regarding the prior fraudulent real estate scheme was thus justifiably aimed at probing 

Cean’s credibility pursuant to Fed. R. Evid. 608(b) and it did not violate her substantial rights. 

III. Motion for a New Trial 

A district court may vacate a judgment of conviction and grant a new trial “if the interest of 

justice so requires.” Fed. R. Crim. P. 33. We review a trial court’s decision to deny a Rule 33 motion 

for abuse of discretion, upholding findings of fact that were made in the course of deciding the 

motions unless they are clearly erroneous. See, e.g., United States v. Wong, 78 F.3d 73, 78-79 (2d Cir. 

1996). To be granted “a new trial in a situation where a juror makes a mistaken response to a 

question, a party must first demonstrate that a juror failed to answer honestly a material question on 

voir dire, and then further show that a correct response would have provided a valid basis for a 

challenge for cause.” United States v. Shaoul, 41 F.3d 811, 815 (2d Cir. 1994) (citing McDonough Power 

Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (brackets and ellipses omitted)). 

 4 As Cean did not properly preserve these objections at trial, her evidentiary challenge is reviewed for 

plain error. 
 

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Cean contends that the District Court erred in denying her motion for a new trial pursuant 

to Rule 33.5

 Her motion centers on her allegation that two jurors “concealed information upon 

which bias could be inferred.” Appellant Cean’s Br. 51. The District Court, however, did not abuse 

its discretion in denying Cean’s motion, nor was its decision based on findings of fact that were 

clearly erroneous. Indeed, Cean fails to point to any purportedly false statement made by a juror 

during voir dire that would affect that juror’s impartiality. Accordingly, we find no error—much less a 

clear error— in the District Court’s finding of no juror misconduct and we similarly identify no 

abuse of its discretion in its decision to deny Cean’s Rule 33 motion. 

IV. Sentencing Issues 

We review a sentence for procedural unreasonableness by focusing on whether the 

sentencing court followed all the necessary steps in deciding upon a sentence. United States v. Park, 

758 F.3d 193, 197 (2d Cir. 2014). A sentencing decision is procedurally unreasonable when a district 

court “makes a mistake in its Guidelines calculation, does not consider the § 3553(a) factors, or rests 

its sentence on a clearly erroneous finding of fact.” United States v. Hsu, 669 F.3d 112, 120 (2d Cir. 

2012) (internal quotation marks and ellipses omitted). For the substantive reasonableness inquiry, an 

appellate court will set aside a district court’s sentence “only in exceptional cases where the trial 

court’s decision cannot be located within the range of permissible decisions.” United States v. Cavera, 

550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal citation and quotation marks omitted); United 

States v. Park, 758 F.3d 193, 199–201 (2d Cir. 2014). We review both procedural and substantive 

unreasonableness challenges under an abuse of discretion standard. See United States v. Corsey, 723 

F.3d 366, 378 (2d Cir. 2013); United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008).

Cean and Browne both challenge their sentence on procedural and substantive 

unreasonableness grounds. Upon review of the record, we find no unreasonableness—procedural or 

substantive—in Cean’s sentence. Browne’s appeal also fails because his challenge is precluded by his 

execution of a plea agreement in which he waived the right to appeal a sentence below 71 months’ 

imprisonment.6

 Gov’t App’x 3. 

 5 In the alternative, Cean argues for an evidentiary hearing on the issue. Post-trial jury hearings 

should be granted “when there is clear, strong, substantial and incontrovertible evidence that a specific, 

nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.” United States v. 

Vitale, 459 F.3d 190, 197 (2d Cir. 2006) (internal quotation marks omitted). Because we identify no such abuse 

here, we hold that the District Court did not err in denying Cean’s motion for an evidentiary hearing. 

6 Browne was ultimately sentenced to a term of 51 months’ imprisonment. Appellant Browne’s 

App’x 92. 
 

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V. Restitution 

Cean and Browne argue—and the government agrees—that the District Court erred in 

setting their restitution amount at $1,205,355. “The purpose of restitution is essentially 

compensatory ... a restitution order must be tied to the victim’s actual, provable, loss.” United States 

v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012) (internal citations and quotation marks omitted). Because 

the District Court’s restitution order overstates the actual loss amount to the victims, we remand the 

cause as to both Browne and Cean for the limited purpose of permitting entry of a revised 

restitution order. 

CONCLUSION 

We have considered defendants’ remaining arguments and find them without merit. 

Accordingly, we AFFIRM the June 20, 2014 judgment and the April 14, 2014 judgment of the 

District Court, and REMAND the cause for the limited purpose of permitting entry of the revised 

restitution order. 

FOR THE COURT, 

Catherine O’Hagan Wolfe, Clerk of Court