1 14-4714-cr(L) United States v. Bonventre UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 20 th day of April, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR., REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , Nos. 14-4714-cr(L), 14-4715-cr(Con), v. 14-4716-cr(Con), 14-4719-cr(Con), DANIEL BONVENTRE, ANNETTE BO NGIORNO, 15-50-cr(Con) JOANN CRUPI, AKA “Jodi,” JEROME O’HARA, and GEORGE PEREZ, Defendants-Appellants

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANTS: ANDREW J. FRISCH (Jeremy B. Sporn, Amanda L. Bassen, on the brief ), Law Offices of Andrew J. Frisch, New York, New York, for Daniel Bonventre.
ROLAND G. RIOPELLE , Sercarz & Riopelle, LLP, New York, New York, for Annette Bongiorno.

* The Clerk of Court is directed to amend the caption as set forth above.2 ERIC R. BRESLIN (Melissa S. Geller, on the brief ), Duane Morris LLP, Newark, New Jersey, for Joann Crupi. GORDON MEHLER (Sarah Lum, Rebecca Stack Campbell, on the brief ), Mehler Law PLLC, New York, New York, for Jerome O’Hara. LARRY H. KRANTZ (Kimberly A. Yuhas, on the brief ), Krantz & Berman LLP, New York, New York, for George Perez. APPEARING FOR APPELLEE: AIME E HECTOR, ANDREA GRISWOLD, Assistant United States Attorneys (David Abramowicz, Matthew Laroche, Karl Metzner, Assistant United States Attorneys, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. Appeal from a judgment of the United St ates District Court for the Southern District of New York (Laura Taylor Swain, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgmen ts entered on December 16, 2014 (Daniel Bonventre), December 17, 2014 (Annette Bongiorno), December 19, 2014 (Jerome O’Hara), December 22, 2014 (George Perez), and December 31, 2014 (Joann Crupi), are
AFFIRMED. Defendants, all former em ployees of Bernard L. Madoff Investment Securities (“BLMIS” or the “Firm”), stand convicted after trial of multiple counts of conspiratorial and substantive securities fraud, bank fraud, a nd records falsification; making false SEC and IRS filings; obstructing enforcement of tax laws; and tax evasion for their3 participation in a massive scheme to defraud th ousands of investors of tens of billions of dollars. On appeal, defendants challenge vari ous trial court rulings, the sufficiency of the evidence, the government’s trial conduc t, and the judgments of forfeiture. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1. Bill of Particulars Bonventre argues that, as to Counts Nine through Fourteen of the Eighth Superseding Indictment, charging falsificati on of investment advi ser and broker-dealer records, see 15 U.S.C. §§ 78q(a), 78ff, 80b-4, 80b-17; 17 C.F.R. §§ 240.17a-3, 275.204-2, he was entitle d to particulars as to the record s alleged to be false, why they were false, and how Bonventre knew of their falsity. See Fe d. R. Crim. P. 7(f). The challenge fails because such “evidentiary detail is not the function of the bill of particulars.” United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (internal quotation marks omitted). Particulars are ne cessary only where i ndictment charges are “so general that they do not advise the defe ndant of the specific acts of which he is accused.” United States v. Ch en, 378 F.3d 151, 1 63 (2d Cir. 2004) (i nternal quotation marks omitted). That is not this case. As to the 1992 receiver ship of investor fund Ave llino & Bienes, Count Eleven charged Bonventre with knowingly causing the Firm’s general ledger falsely to reflect payment to the receiver from Firm assets inst ead of proceeds from loans collateralized by its clients’ securities. Counts Ten and Thirt een alleged that Bonventre not only knowingly created documents falsely showin g that BLMIS had executed trades with4 European counterparties to frustrate SEC reviews, but al so that Bonventre caused those documents to reflect the same trades with American counterparties, thereby frustrating reviews by European accountant s during the same period. Regarding the Firm’s 2005– 06 liquidity crisis, Counts Nine and Twelve charged Bonv entre with knowingly causing the Firm’s general ledger falsely to reflect that four specific wire transfers were used to purchase assets, when, in fact, th ey were used to satisfy client s’ requests for withdrawals. Finally, Count Fourteen allege d that Bonventre k nowingly underreported $299 million of BLMIS liabilities in a FOCUS report f iled with the SEC on May 22, 2006. These pleadings present none of the c oncerns identified in United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (noting indictment alleged extortion aimed at one company while trial evid ence showed extortion aimed at different companies), and United States v. Bortnovsky, 820 F.2d 572, 574–75 (2d Ci r. 1987) (noting indictment alleged merely that defendants submitted false claims for burglary and fire loss, without specifying dates of staged burglaries or which of “some 4,000 documents” were fraudulent), on which Bonventre relies. Nor did the volume of discovery warrant par ticulars. To the contrary, the district court adequately addressed that concern by or dering early identific ation of prosecution exhibits and the defendants to whom they pertained. See United States v. Rigas, 490 F.3d 208, 237 (2d Cir. 2007) (re cognizing that bill of particul ars enables trial preparation and prevents surprise); United St ates v. Chen, 378 F.3d at 16 3 (explaining that particulars are unnecessary where government has made sufficient disclosures of evidence and witnesses by other means).5 Bonventre also was not prej udiced by the government’s failure to particularize whether he was charged with knowingly participating in Be rnard Madoff’s Ponzi scheme—as opposed to securities fraud gene rally—because such knowledge was not a required element of the charged crimes. Accordingly, the denial of particular s manifests no abuse of discretion. See United States v. Chen, 378 F.3d at 163 (stating standard of review). 2. Joinder of Charges and Defendants

a. Joinder of Tax Fraud Charges Crupi and Bonventre argue that certain ta x fraud charges should have been severed as insufficiently related to the securities fraud perpetrated at the Firm. See Fed. R. Crim. P. 14(a). Under Fed. R. Crim. P. 8, which govern s joinder of offenses and defendants in criminal trials, tax counts ca n properly be joined w ith non-tax counts where the revenue at issue “arose directly” from the latter crimes, or when one scheme “stemmed” from the other, such that proof of one is “indispensable for a full understanding of the other,” United States v. Turoff, 8 53 F.2d 1037, 1043–44 (2d Cir. 1988). 1 Applying these standards de novo, we identify no joinder error compelling severance. See United States v. Rittw eger, 524 F.3d 171, 177 (2d Cir. 2008). According to the indictment, Crupi’s misuse of a corporate credit card was one of the means by which Madoff financ ially rewarded her participa tion in the securities fraud.

1 Although the parties appear to agree that Rule 8( b)—and not Rule 8(a)—governs joinder of offenses in multi-defendant trials , we have yet to resolve the matter. See United States v. Shellef, 507 F.3d 82, 97 n.12 (2d Cir. 2007). Nor mu st we do so here, insofar as joinder was prop er under either standard.6 Moreover, insofar as the Firm’s legitimate op erations did not generate sufficient revenue to meet its expenses by 2002, Crupi’s use of a BLMIS card to pay personal charges from 2004–08 resulted in her receipt of unreported income repres enting “funds derived from non-tax violations.” United States v. Turoff, 853 F.2d at 1043. United States v. Halper, on which Crupi relies, is distinguishable because the government there conceded that sums charged in an inco me-tax evasion indictment were not the same as those at issue in a Medicaid fraud. See 59 0 F.2d 422, 429 (2d Cir. 1978). Insofar as Bonventre argues th at “neither the ev idence accessible to the district court before trial, nor the proof at trial itself, established th at the two categories of crimes [he committed] were somehow interdependent,” Bonventre Br. 100, the argument fails because the propriety of join der turns on what is allege d in the indictment, not on evidence later adduced. See United States v. Rittweger, 524 F.3d at 178 & n.3. The indictment here alleged that , in carrying out tax offenses , Bonventre utilized the same methods—backdated trades and fi ctitious records to generate “profits” and “losses” in investment accounts—that were central to th e Firm’s securities fraud. Joinder was, therefore, proper because Bonv entre’s tax fraud “hinged on” the same activities taken to advance the securities fraud. United States v. Turoff, 853 F.2d at 1044; cf. United States v. Litwok, 678 F.3d 2 08, 217 (2d Cir. 2012) (identif ying “no evidentiary overlap” between alleged tax violation and fraudulent in surance claim); United States v. Shellef, 507 F.3d 82, 99 (2d Cir. 2007) (noting that alleged tax viola tions predated alleged wire fraud conspiracy).7 Nor has Bonventre carried the “heavy burden ” of showing that the failure to sever the tax counts caused prejudice so severe as to result in “a misca rriage of justice.” United States v. Rittweger, 524 F.3d at 1 79. Bonventre’s argum ent—that his knowing involvement in the securities counts was rendered more pl ausible by unrelated conduct alleged in the tax counts—is undermined by indictment allegations that he engaged in identical fraudulent conduct to commit both crim es. Accordingly, the district court did not abuse its “virtually unreviewable” disc retion by denying severance, id. (internal quotation marks omitted), particularly in li ght of its repeated lim iting instructions, see J.A. 10850, 11930. b. Pre-Trial Motion To Sever O’Hara and Perez O’Hara and Perez argue that the failure to grant them severance precluded a reliable jury determination of guilt because th ey were “mid-level t echnical workers with narrow roles,” and other defendants had work ed at BLMIS for “much longer periods,” exercised management roles, had direct client contact, used corporate charge cards, and received “significantly higher” compensati on. O’Hara Br. 92– 93. Yet “differing levels of culpability and proof are inevitable in any multi-de fendant trial and, standing alone, are insufficient grounds for separate tr ials.” United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (alterati on and internal quotation marks omitted). In any event, the indictment alleged—and trial record esta blished—that O’Hara and Perez, who were each employed by the Firm for approximately two decades, we re integral members of the securities fraud conspiracy insofar as they created multiple computer programs falsely documenting nonexistent transactions, there by deceiving regulators and auditors and8 enabling Madoff to perpetuate the fraud withou t discovery. See also id. at 55 (deeming joint trials particularly appropriate where defendants are charged with participation in same criminal conspiracy). O’Hara’s claim that separate trials would have avoided prejudicial spillover fails because he and Pere z collaborated with co -conspirators Crupi, Bonventre, Enrica Cotellessa-Pitz, and Fr ank DiPascali, requiring much the same evidence whether their trials were severed or not. See id. at 55–56. Under these circumstances, and in light of th e federal preference for joint trials of co-conspirators and the district court’s careful limiting instructio ns, see, e.g., United States v. O’Connor, 650 F.3d 839, 858 (2d Cir. 2011), we identify no abuse of discreti on in the denial of pre-trial

severance. c. O’Hara’s Mid-Trial Severance Motion O’Hara asserts that a mid-trial severa nce motion should have been granted because of the admission of a modified ve rsion of Perez’s inculpatory statement. 2 We

2 The statement originally indicated that Perez told Matthew C ohen that Madoff “had asked the programmers to create certain computer programs that made them uncomfortable, and had paid them $100,0 00” for doing so. J.A. 12732 (emphasis added). At trial, it was modified so that Cohen testified as follows: I asked Mr. Perez what led to him opening and then subsequently closing this acc ount. He told me that Mr. Madoff had asked him to make some changes to one of the AS/400 programs in order to modify statements that had already been printed and sent to a customer. He told me that he was uncomfortable doing this and that he had told Mr. Madoff that, and Mr. Madoff ha d said, I’ll give you some money, just do it, and he did. Id. at 1089 (emphasis added).9 review challenged evidentiary rulings for a buse of discretion, see United States v. Kaplan, 490 F.3d 110, 120 (2d Cir. 2007), which we do not identify here. Not only did Perez’s modified statement not reference O’Hara, but the district court also instructed the jury that the statement was admitte d only against Perez. See
J.A. 1060. 3 O’Hara’s assertion that these factors should not be determinative is at odds with the very case on which he relies. See United States v. Gomez, 617 F.3d 88, 92 (2d Cir. 2010) (observing that main import of challenged hearsay was its impermissible inculpatory identificat ion of defendant). Accordingly, O’Hara’s argument for mid-tr ial severance also fails on the merits. 4
3. Brady / Giglio Claim Perez argues that the government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose a summary of its

3 O’Hara’s assertion that the government “u sed Cohen’s testimony to argue that there was a direct bearing on [his] guilt,” O’Ha ra Reply 36–37 (citing J.A. 11760–61, 11772, 11827–28), is betrayed by th e record O’Hara cites, whic h reflects the prosecutor’s discussion of the letter O’Hara wrote to his brother. See id. at 12286.

4 Insofar as O’Hara asserts a Confrontati on Clause challenge to Perez’s modified statement, we decline to consid er an argument advanced only in a footnote or reply brief. See O’Hara Br. 89 n.7; O’Hara Reply 29–34; see, e.g., United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003) (regarding footnote); United St ates v. Yousef, 327 F.3d 56, 115 (2d Cir. 20 03) (regarding reply brief). In any event, the challenge is meritless because Perez’s statement was modified, cons istent with Bruton and its progeny, to remove any reference to another programmer. Cf. United States v. Jass, 569 F.3d 47, 60 (2d Cir. 2009) (“[T]he Supreme Court’s Con frontation Clause concern has been with juries learning that a declarant defendant sp ecifically identified a co-defendant as an accomplice in the charged crime.”). It is th erefore irrelevant that other trial evidence implicated O’Hara in Perez’s conduct. Se e id. at 61. Further, while O’Hara asserts that the jurors could not follow the district court’s limiting instruction, his failure to demonstrate an “overwhelming probability of their inability to do so” defeats his challenge. Id. at 60 (emphasis in orig inal) (internal quotation marks omitted).10 interview with retired FBI Ag ent Keith Kelly, in which Kelly described a prior statement by Matthew Cohen. 5 To prevail on this claim, Pere z must demonstrate the undisclosed statement’s materiality. See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (stating that withheld evidence is “material” if there is “reasonable prob ability” that disclosure would have resulted in different outc ome (internal quotation marks om itted)); see also Wearry v. Cain, 136 S. Ct. 1002, 1006 ( 2016). On de novo review, see United States v. Mahaffy, 693 F.3d 113, 127 (2d Ci r. 2012) (according trial judge’s fa ctual conclusions as to effect of nondisclosure great weight, but determinin g materiality de novo ), we conclude that Perez fails to carry his burden. Perez argues that Kelly’s statement is both exculpatory and impeaching because Cohen does not therein state that Perez accepted compensation notwithstanding his discomfort in doing so. Perez contends that the absence of this de tail suggests that he was comfortable writing the programs at issu e, which is consistent with the defense theory that he was duped by Ma doff and DiPascali and, therefor e, lacked criminal intent.

5 Kelly’s statement indicated, in relevant part, that “COHEN told KELLY about a conversation COHEN had with GEORGE PE REZ, in which PE REZ indicated to COHEN that PEREZ had received compensati on, whether in the form of cash or a deposit to PEREZ’s investment advisory account, in exchange for writing certain computer programs.” Suppl. App. 145. Meanwhile, Cohen testified: I asked Mr. Perez what led to him opening and then subsequently closing this acc ount. He told me that Mr. Madoff had asked him to make some changes to one of the AS/400 programs in order to modify statements that had already been printed and sent to a customer. He told me that he was uncomfortable doing this and that he had told Mr. Madoff that, and Mr. Madoff ha d said, I’ll give you some money, just do it, and he did. J.A. 1089.11 This possibility, which is hardly the only interpretation of th e undisclosed statement, is not enough “‘to put the whole cas e in such a different light as to undermine confidence in the verdict.’” Id. (quoting Youngblood v. West Virginia, 547 U.S. 867, 870 (2006)). This is particularly so give n other more significant imp eachment of Cohen’s credibility, such as FBI Agent Paul Takla’s testimony that Cohen himself had earlier relayed a version of events somewhat different from that testified to at trial. 6 Cf. United States v. Spinelli, 551 F.3d 159, 165 (2d Cir. 2008) (“[I ]f the information withheld is merely cumulative of equally impeaching evidence introduced at trial, so that it would not have materially increased the jury’s likelihood of discrediting the w itness, it is not material.”). More importantly, Cohen’s trial testimony was corroborated by other evidence of Perez’s guilty knowledge, notabl y, the September 13, 2006 handwritten letter that Perez himself produced to the government, in which he acknowledged telling DiPascali of “my unwillingness to work on projects which I am uncomfortable with.” J.A. 12288; see id. at 10830. DiPascali, a cooperating witness, also testified that, in 2006, Perez—along with O’Hara—confronted Madoff and expressed their discom fort working on computer programming for the investment advisory (“IA”) business, but ultimately accepted compensation for continuing to do certain asp ects of this work. See id. at 5519–28. Under these circumstances, we identify no error in the denial of Rule 33 relief on Brady/Giglio grounds.

6 According to Takla’s notes, in April 2011 Cohen told the FBI that Perez had reported Madoff asking for changes to the system, which Perez declined to make “because he felt uncomfortable,” whereupon Ma doff responded that “if Perez was not comfortable with making changes, then Perez should not do it.” J.A. 10745.12 4. Sufficiency of the Evidence O’Hara, Perez, Bongiorno, and Crupi e ach challenge the su fficiency of the evidence supporting certain of their convictions . Although we review such claims de novo, defendants bear “a very heavy burden,” United States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir. 2010) (internal quotation marks om itted), because the standard of review is “exceedingly deferential,” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015) (internal quotation marks omitted). We must a ffirm if, viewing the evidence in the light most favorable to the governme nt, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt .” Jackson v. Virgin ia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v. Binday, 804 F.3d 558, 572 (2d Cir. 2015). a. Securities Fraud Convictions of O’Hara and Perez O’Hara, joined by Perez, argues that , notwithstanding their extensive and undisputed involvement in the work of th e fraudulent IA business, evidence of their criminal intent was in equipoise and, thus, legally insufficient to sustain any of their convictions. See O’Hara Br. 53–54 (citing, in ter alia, United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002)). The argument fails be cause trial evidence was not in equipoise but tilted decidedly in favor of a finding of culpable mens rea. O’Hara and Perez (1) designed computer programs that created books and records filled with randomly generated numbers in order to deceive regulators and clients; (2) became so uncomfortable w ith their work that, by 2006, they feared for their jobs, families, and lives, see J.A. 12286, 12288; see also id. at 10830; (3 ) unsuccessfully urged13 Madoff to shut down the IA business, s ee id. at 5519–23; (4) accepted additional compensation and continued pr ogramming for the IA business, even after expressing their discomfort, see id. at 5527–29; (5) dele ted from the server “special programs” they had created to produce fictitious material for SEC and KPMG audits , see id. at 5528–29, 8209–10; and (6) implicitly advise d a colleague to close his IA account, see id. at 7374–
76. 7 This was sufficient to allow a reasonable juror to infer both defendants’ awareness of the fraud and their intent that it succeed. See, e.g., United States v. Singh, 390 F.3d 168, 188 (2d Cir. 2004) (recognizing that proof of fraudulent intent is often circumstantial rather than direct); United St ates v. Panza, 750 F.2d 1141, 1150 (2d Cir. 1984) (holding that jury reasonably could in fer from number of “r ed flags” to which defendant was exposed that he knew he was participating in fraudulent scheme, even though he may not have known all details). To the extent O’Hara invites this court to re-weigh evidence, draw inferences in his favor, or re-assess credibility , see O’Hara Br. 57–58, the ju ry verdict precludes such undertakings. See United States v. Binday, 804 F.3d at 572.

7 The jury also heard evidence that, after the Firm’s coll apse, (1) O’Hara told a colleague to delay responding to inves tigators’ requests, and seemed upset to learn that the colleague had discussed with investigators a program that had helped perpetrate the fraud, see id. at 8706–07; and (2) Perez told Matthew Cohen, an attorney responsible for the BLMIS Trustee’s discovery and data preser vation efforts, that Madoff had paid Perez to continue programming for the IA busine ss after Perez told Madoff that he was uncomfortable doing so , see id. at 1089.14 b. Tax Evasion Convictions of Crupi and Bongiorno Crupi and Bongiorno challenge the suffici ency of their tax evasion convictions, see 26 U.S.C. § 7201, insofar as they were found liable for a “substantial tax debt.” United States v. Coplan, 703 F.3d 46, 66 (2d Cir. 2012 ). Their challenges fail. The government adduced ev idence that, between 2003 and 2008, Crupi used a BLMIS credit card to pay over $288,000 in personal expenses, which—for tax years 2004, 2007, and 2008—resulted in more than $134,000 in unreported income and a $38,000 tax deficiency. Crupi argues that the American Express statements were insufficient to prove that the charges were, in fact, personal . But assuming, as we must, that the jury credited DiPascali’s testimony that it was not Crupi’s job to entertain clients, the personal nature of her charges could re asonably be inferred from: (1) the amount, vendor, and purchase location (often near Crupi’s home, as opposed to the Firm’s Manhattan office) of the non-travel expenses; 8 and (2) the names of Crupi’s family members on many of the travel expenses. Nor, as Crupi insists without supporting authority, was the government required to pr ove a negative, i.e., that Crupi had not reimbursed BLMIS for her personal expenses. See United States v. Downing, 297 F.3d 52, 56–57 (2d Cir. 2002) (refusi ng to overturn jury verdict merely because exculpatory account is “plausible,” because “the govern ment need not disprove every possible hypothesis of innocence” (alteration and internal quotation marks omitted)).

8 These included approximately $40,000 on wine purchases in New Jersey and $5,000 on pet care.15 Bongiorno’s challenge is e qually meritless. The government presented the jury with evidence that she failed to report as taxable income $813,727 withdrawn, between 1994 and 2008, fro m the Firm’s “Special 1” and “Spe cial 2” accounts via the Chase ‘703 account, resulting in a $239,334 tax defici ency. Bongiorno’s c ontention that the withdrawals were non-taxable capital and not taxable income fails because the jury, in convicting her of securities fraud, necessar ily concluded that Bo ngiorno knew these accounts held no capital. 9 Rather, every withdrawal was taxable income because it was effectively a theft of client funds from the Chase account. No different conclusion is warranted by the fact that the district cour t, for purposes of Guidelines calculation, assumed that Bongiorno had been convicted on a “consc ious avoidance” theory. That theory “permits a finding of knowledge ev en where there is no evidence that the defendant possessed actual knowledge.” Un ited States v. Svoboda, 347 F.3d 471, 477– 78 (2d Cir. 2003) (internal quotation marks omitted). c. Crupi’s Bank Fraud Conviction Crupi argues that she could not have inte nded to commit bank fraud, or conspired to do so, see 18 U.S.C. §§ 1344, 1349, becaus e she lacked access to full information about the value of David Kugel’s accounts a nd merely relied on Kuge l’s own analysis. The argument fails because, even if Crupi lack ed such access, the tr ial evidence showed that she independently fabricated informati on that she reported to lenders on the Kugel family’s behalf. Specifically, Crupi (1) re ported account values that did not conform even to Kugel’s requested amounts; and, on one occasion, (2) provided Kugel with an

9 Bongiorno does not assert a suffic iency challenge to those convictions.16 entirely fictitious account statement. Moreov er, to the extent Crupi relied on Kugel’s representations notwithstanding the verifi cation documents’ warnings of “severe penalties” for any fraud or misrepresentati on, J.A. 12295, 12301, 12302, the jury was entitled to consider this as c onsistent with fraudulent intent . Similarly, the jury could reasonably infer Crupi’s intent to defraud banks from her mi srepresentation that Kugel’s account values had been veri fied independently by a de pository, when she knew the information was supplied by Kugel, the mortgage applicant. As for the materiality of her misrepresent ations, Crupi provides no support for the counterintuitive proposition that a depository’s overstatement of a loan applicant’s assets by a multiple of 15 to facilitate a mortgage application is immateri al to the financial institution. 10 In any event, the gove rnment adduced sufficient evidence for a reasonable jury to infer that Crupi’s misrepresentations had “a natural tendency to influence, or [were] capable of influencing,” the banks’ decisions. Neder v. United States, 527 U.S. 1, 16 (1999). This included evidence of Crupi’s communications with mortgage company employees seeking ve rification and Kugel’s testim ony about conversations with Crupi explaining that he “needed [the] letter” to obtain mortgages. J.A. 2330. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007), on which Crupi relies, is not to the contrary. In that “rather unusual bank fraud case,” id. at 234, we concluded that misstatements of a bank’s leverage ratios were not material be cause they were incapable of affecting the victim depository’s decision, which was limited by the terms of a specific loan

10 For example, on one occasion Crupi swore that the value of Kugel’s IA account was nearly $6 million, when Firm “records” i ndicated it was approximately $300,000 to $400,000. See J.A. 2332.17 agreement, see id. at 235 (noting that bank c ould only determine amount of interest to be charged, an objective decision cabined by ra nges set in Co-Borrowi ng Agreements). By contrast, the evidence here demonstrated that Crupi’s misrepresentations were “reasonably likely to influence” the lenders’ subjective decisions regarding whether to extend a loan. Accordingly, defendants’ sufficien cy challenges fail on the merits. 5. Conscious Avoidance Instruction Bonventre and Bongiorno challenge th eir securities fraud convictions, see 18 U.S.C. §§ 2, 78j(b), 78ff; 17 C.F.R. § 240 .10b-5, arguing that trial evidence did not provide a sufficient factual basis fo r a “conscious avoidance” instruction. 11 A sufficient basis exists when the eviden ce “would permit a rational ju ror to conclude beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.” United States v. Cu ti, 720 F.3d 453, 463 (2d Cir. 2013) (internal quotatio n marks omitted); see also id . (reviewing this question de novo). Bonventre argues that no such conclusi on was possible here because the “red flags” identified by the government are susp icious only in hindsight. The argument is defeated by Bonventre’s own statement to A lixPartners employee Meghan Schmidt, who testified that Bonventre told her in December 2008 that he closed his IA account in 2006

11 Neither defendant takes issue with the substa nce of the instruction. Thus, insofar as Bonventre contends that the jury could have convicted him on the basis of negligence or recklessness, there is no reason to suspect that the jury ignored the district court’s explicit instruction to the contra ry. See J.A. 10934.18 because he had awoken “with a sick feeling in his stomach” and “had always questioned the consistent high returns that he earned on that account.” J.A. 1244. Nor are we persuaded by Bonventre’s insistence that his lack of actual knowledge resulted not from any “deliberate steps,” Bonve ntre Reply 8 (emphasis in original), but, rather, from DiPascali’s and Madoff’s lies about the leg itimacy of their work. “[A] defendant’s ‘purposeful contrivance’ to avoid knowledge may not manifest in an affirmative act because ‘the very nature of conscious avoidance makes it unlikely that the record will contain directly incriminati ng statements.’” United States v. Whitman, 555 F. App’x 98, 105–06 (2d Cir. 2014) (quo ting United States v. Svob oda, 347 F.3d at 480, and United States v. Kozeny, 667 F.3d 122, 134 (2d Cir. 2011)). While Bongiorno argues that her (1) lack of formal education or training in securities, (2) transpar ent record-keeping, and (3) failure to liquidate her investment account before the Firm’s collapse manifest her ignorance of the fraud, these arguments were properly made to the jury in arguing th at the government failed to prove knowledge even through conscious avoidance. Th ey are not grounds for disallowing the instruction. Indeed, Bongiorno’s “purported lack of knowledge de fense, despite [her] deep involvement in the tran sactions that effectuated th e fraud, all but invited the conscious avoidance charge.” United States v. Cuti, 720 F.3d at 464. Notably, Bongiorno re-wrote three year s’ worth of account statemen ts for Avellino & Bienes in connection with the SEC’s 1992 in vestigation, replacing a tran sfer from another customer account with a purported divide nd from General Motors. She also played a significant role in managing and organizing backdated trad ing in clients’ accoun ts and in her own,19 including retroactively selling Lehman Brot hers stock after that firm declared bankruptcy. In light of this “overwhelmi ngly suspicious” behavior, a reasonable jury could have found that her professed ignora nce was a “purposeful contrivance to avoid guilty knowledge.” United States v. Kozeny, 667 F.3d at 134 (internal quotation marks omitted). Accordingly, defendants’ challenge to the conscious avoidance instruction is meritless. 6. Government Misconduct Defendants assert that prosecutorial misc onduct in addressing the jury warrants a new trial. 12 To secure such re lief, they must show misconduct “so severe and significant” as to deny a “fair trial.” Unite d States v. Coplan, 703 F.3d 46, 86 (2d Cir. 2012) (internal quotation marks omitted). Such cases are “rare, ” United States v. Caracappa, 614 F.3d 30, 41 (2 d Cir. 2010), and arise only when improper comments so infect the trial as a whole as to result in conviction violative of due process, see United States v. Truman, 688 F.3d 12 9, 144 (2d Cir. 2012); United St ates v. Ferguson, 676 F.3d 260, 283 (2d Cir. 2011) (stati ng that improper comments do no t deny due process “unless they constitute egregious misconduct” (internal quotation marks omitted)). In evaluating whether defendants have carried this burden, we consider (1) the severity of the misconduct, (2) the measures adopted to cu re it, and (3) the certainty of conviction in the absence of the misconduct. See United States v. Coplan, 703 F.3d at 86. Applying

12 None of the Assistant United States Atto rneys representing the government on this appeal are the prosecutors wh ose remarks are at issue.20 these principles here, we conclude that they have not, substantially for the reasons stated by the able trial judge. See United Stat es v. Bonventre, No. 10CR228-LTS, 2014 WL 3673550, at *12– 17 (S.D.N.Y. Ju ly 24, 2014). a. Opening Statement O’Hara argues that the government’s opening statement misrepresented the evidence, inappropriately referred to defendan ts collectively, and bolstered the credibility of cooperating witnesses. In fact, the pros ecution statements antic ipating evidence fell within the “broad latitude” of reasonable inferences, Un ited States v. Salameh, 152 F.3d 88, 138 (2d Cir. 1998), and collective referenc es, as defense counsel later acknowledged, were “inevitable and . . . probably appropriat e” in the context of the charged conspiracy,
J.A. 11041. 13 As to bolstering, the government concedes that a prosecutor cannot reference the bolstering aspects of witnesse s’ cooperation agreements dur ing opening argument. See United States v. Certified Envtl. Servs., In c., 753 F.3d 72, 86 (2d Cir. 2014). However, any such error here, view ed in the context of th e entire trial, was not so severe as to deny due process because not only did defense openings attack the credibility of prosecution witnesses, but also district court in structions ameliora ted any prejudice. b. Rebuttal Summation Defendants advance a litany of objections to the prosecution’s rebuttal summation. In reviewing these objections, we are mindful both of the trial court’s criticism, see, e.g., United States v. Bonventre, 2014 WL 3673550, at *16 (characterizing many remarks in

13 Indeed, O’Hara did not obje ct on these grounds below.21 rebuttal summation as “ill-conceived and unwort hy of the institutional stature of the United States Attorney’s Office”), and its u ltimate rejection of de fendants’ due process challenge in the context of (1) the “meticul ous presentation” of incriminating evidence; (2) the totality of arguments made at trial; and (3) contemporaneous curative instructions, id. Having carefully reviewed the record, we identify no abuse of discretion in this conclusion. See United States v. Banki, 6 85 F.3d 99, 119–20 (2d Ci r. 2012) (identifying standard of review). 1. Severity of Misconduct The prosecution’s repeated characterizati on of defense arguments as “ridiculous” or “absurd,” e.g., J.A. 117 50, 11751, was not improper. See United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992) (rejecting challenge to prosecution’s characterization of defense arguments as “ridiculous” because “prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation” ); accord United States v. Farhane, 634 F.3d 127, 16 8 (2d Cir. 2011). The disput ed characterizations were directed to particular defense arguments a nd supported by specific record evidence. Thus, this case is not analogous to Floyd v. Meachum, 907 F.2d 347, 353–55 (2d Cir. 1990) (faulting prosecutor for characterizing non- testifying defendant as “liar” more than 40 times, improperly referencing Fifth Amendm ent, and inviting jury to assess her own personal integrity and professional ethics), or to United States v. Drummond, 481 F.2d 62, 63–64 (2d Cir. 1973) (faulting prosecutor who dismissed defense arguments as “preposterous” for improperly interjecting hi s beliefs and his own credibility into case and misrepresenting trial testimony).22 While defendants assert that the prosecution here repeatedly mischaracterized the record, the district court reasonably conclude d that, in most inst ances, the challenged arguments represented fair—if aggressive—inf erences that the jury was entitled to draw from the evidence. See, e.g., United States v. Salameh, 152 F.3d at 138 (concluding that government had not misrepresented evidence by arguing for inferen ce that, even if not grounded in direct evidence, did not exceed its “broad latitude to suggest reasonable inferences”). Defendants were entitled to—and, in fact, did—argue for opposing inferences on the basis of th e same evidence. See, e.g., J.A. 11435. That defendants disagree with the strength of the government’s inferences does not es tablish prosecutorial misconduct. See generally United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975) (“A prosecuting attorney is not an automaton wh ose role on summation is limited to parroting fact already befo re the jury.”). To the extent some of the prosecution’ s rebuttal arguments created unnecessary evidentiary ambiguity, we make some allowan ce for the fact that re buttal summations are “not detached expositions . . . carefully constructed before the event.” United States v. Farhane, 634 F.3d at 167 (alterations, cita tion, and internal quotation marks omitted). 14

14 The government’s claim that O’Hara’s coun sel characterized a 2006 letter as an “act[] of courage” misstated the record, J.A. 11828; the act of courage referenced was O’Hara’s confrontation with his supervisors. See id . at 11232. In the same breath, however, O’Hara’s counsel asserted that deleting “s pecial programs” in 2006 “was even more courageous,” id., and the government was entitle d to challenge that characterization. Insofar as the government’ s rebuttal—which followed several days of defense arguments—misidentified the prec ise conduct to which counsel had referred, this error was hardly severe given the dist rict court’s immediate correction.23 In any event, the concern was adequately addr essed by the district court’s instructions that only the jury’s own recollec tion of the evidence controlled. Defendants’ claims of improper vouching fail because prosecutors are permitted vigorously to argue for their w itnesses’ credibility so long as they do not interject their own credibility into the case, see United States v. Rivera, 971 F.2d at 884, or imply the existence of extraneous proof, see United St ates v. Bagaric, 706 F.2d 42, 61 (2d Cir. 1983). As the district court reasonably c oncluded, neither occu rred here. Defense counsel not only repeatedly characterized Di Pascali’s testimony as “lies,” but also accused prosecutors of orchestrating perjury among the cooperating witnesses. The law is clear: “the government is allowed to resp ond to an argument that impugns its integrity or the integrity of its case, and when the de fense counsel have attacked the prosecutor’s credibility or the credibility of the government agents, the pros ecutor is entitled to reply with rebutting language suitable to the occasion.” United St ates v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (interna l quotation marks omitted). The same reasoning applies to defendants’ claim that the prosecutor impermissibly “cast himself as an expert witness on crime a nd criminals.” Crupi Br. 39. Viewed in context, most of the comments were permi ssible appeals to jurors’ common sense in response to defense arguments. See United Stat es v. Huezo, 546 F. 3d 174, 182 (2d Cir. 2008) (“[J]urors are entitled, and routinely encouraged, to rely on their common sense and experience in drawing infere nces.”); see also United States v. Anderson, 747 F.3d 51, 70 (2d Cir. 2014). To the extent the prosecuti on went further, the dist rict court’s actions24 sustaining objections a nd giving curative instructions adequately safeguarded against prejudice. The government’s use of analogies to enable jurors unfamiliar with securities trading to evaluate evidence in the contex t of “more accessible” crimes was not a model of advocacy. J.A. 11849. But the governme nt is not barred from using such rhetorical devices so as to require a new trial here. See United States v. LaMorte, 950 F.2d 80, 85 (2d Cir. 1991) (concluding that reference to bomb exploding on airp lane, in context of prosecution for marijuana distribution, did not deny defendant fair trial). The same conclusion obtains for prosecution references to fictional works. These remarks, made only briefly and in passing , encouraged th e jury to apply its common sense in determining whether par ticipants in criminal conspir acies were likely to lie to one another. See J.A. 11820–21. Indeed, defense counsel also referenced popular culture in appealing to jurors’ experience. In any event, the district court’s prompt and appropriate curative instruction adequately ensured against pr ejudice. See id. at 11821. Finally, the prosecutor’s reference to Cons tance Baker Motley was, as the district court observed, “at best ambi guous and at worst unfathom able.” United States v. Bonventre, 2014 WL 3 673550, at *16; see J.A. 11917. Nevertheless, the record does not admit the inference urged by defendants, th at is, that the prosecution was appealing to racial bias. Rather, the government appear s to have attempted to respond—somewhat opaquely—to defendants’ own curious histor ical analogies. While the prosecutor’s choice of subject was peculiar, and his rhetoric needlessly grandiose, it did not constitute severe misconduct. See United Stat es v. Farhane, 634 F.3d at 167.25 2. Substantial Prejudice Defendants maintain that even if no indi vidual prosecution argument manifested severe misconduct, the cumulative effect of th e challenged remarks was so prejudicial as to deny due process. We identify no abuse of discretion in the district court’s rejection of this argument in light of (1) the tr ial judge’s prompt, frequent, and apt jury instructions; and (2) compelling trial evidence of each defendant’s guilt, which included (a) testimony from five cooperating witnesses w ho directly inculpated defendants in the securities fraud, (b) defendant s’ own verbal and written st atements manifesting their guilty knowledge, and (c) voluminous financia l and computer records demonstrating the brazen nature of the fraud in which defendants had engaged. Acco rdingly, the strength of the evidence here indicates that the same result would have obtained, even without the purported government misconduct. In sum, while it properly faulted aspects of the government’s rebuttal summation, the district court acted within its discretion in concluding that this is not one of the “rare cases” in which defendants have demonstrated th at they were denied due process so as to require a new trial. 7. Forfeiture Order O’Hara and Perez challenge the $19,707, 987,337.00 forfeiture order, an amount representing the total client investment in the Firm’s IA business after January 1, 2006—the point at which the district court found these defendants to have joined the securities fraud conspiracy. See 18 U.S.C. §§ 981(a)(1)(C ), 1956(c)(7)(A), 1961(1); 2826 U.S.C. § 2461(c). 15 In evaluating this challenge, we review the district court’s legal conclusions de novo and its factual findings for clear error. See United States v. Sabhnani, 599 F.3d 215, 261 (2d Cir. 2010). O’Hara faults the district court for impos ing forfeiture of gross, as opposed to “net,” proceeds under 18 U.S.C. § 981(a)(2). The argument fails because the evidence showed that the criminal conspi racy at issue did not sell or pr ovide “lawful serv ices . . . in an illegal manner” so as to require deduction of direct costs. Id. § 981(a)(2)(B); see also In re Rothstein, Rosenfeldt, Adler, P.A., 7 17 F.3d 1205, 1212 (11th Cir. 2013) (observing that, under § 981(a)(2)(A), “whatever money” defendant obtained through Ponzi scheme was forfeitable as “proceeds” of offense). 16 Even if the Firm had provided lawful services, there were no direct costs to deduct because BLMIS never purchased any securities on behalf of its IA clients in exch ange for their investments, and the forfeiture statute excludes “any part of the overhead e xpenses of the entity” from the meaning of “direct costs.” 18 U.S.C. § 9 81(a)(2)(B); see also id. (stati ng that defendant has burden

15 Forfeiture judgments of varying amounts we re imposed jointly and severally against all defendants on the basis of convictions on Counts One through Three (securities and accounting fraud), and Counts Six through Eleven (falsifying records of broker-dealer and investment adviser).

16 To the extent O’Hara challenges the forfeitu re of gross proceeds because neither he nor Perez had any contact with BLMIS clients, or because his particip ation was limited to writing computer programs, he misunderstands the district c ourt’s preponderance finding. See United States v. Contorinis , 692 F.3d 136, 147 (2d Cir. 2 012) (holding that court may order defendant to forfeit pro ceeds received by others who pa rticipated jointly in crime “provided the actions genera ting those proceeds were reasonably foreseeable to the defendant”). We identify no clear error in the district court’s determination that clients’ investments were reasonably foreseeable to O’Hara.27 of proof of direct costs). Accordingly, th e district court correc tly ordered forfeiture based on the gross proceeds generate d by defendants’ fraudulent scheme. O’Hara also faults the district court fo r failing to exclude “massive” deposits from what he contends was a separate check-kiti ng scheme that was the basis for a deferred prosecution agreement (“DPA”) between the government and JPMorgan Chase (“JPMorgan”) in a related action. O’Hara Br. 100. The argument fails because the district court limited O’Hara’s forfeiture order to client i nvestments in the IA business after January 1, 2006, and, as O’Hara ha s acknowledged, the purported check-kiting scheme ceased operating in 2003. See also DP A, Ex. C ¶ 27, United States v. JPMorgan Chase Bank, N.A., No. 14 Cr. 007 (PKC). In any event, the DPA states only that the transactions in question “appeared to be a ‘c heck-kiting’ scheme” to the bank. Id. ¶ 25. The government adduced eviden ce, however, that these depos its facilitated the charged securities fraud, as they were reflected in Crupi’s records of th e Firm’s IA account activity, recordkeeping in wh ich O’Hara was also involved. See Appellee Br. 235. O’Hara argues that the challenged forfeiture also violates th e Eighth Amendment’s proscription of excessive fines. See United St ates v. George, 779 F. 3d 113, 122 (2d Cir. 2015) (stating that criminal forfeiture is unconstitutionally excessive if it is “grossly disproportional” to gravity of defendant’s offense (interna l quotation marks omitted)). To assess gross disproportionality, we consid er all relevant factors, including (1) the essence of defendant’s crime and its relati on to other criminal activity, (2) whether defendant fits into the class of persons for whom the statut e of conviction was principally designed, (3) the maximum sentence and fine that could have been imposed, and (4) the28 nature of harm caused by de fendant’s conduct. See id.; see also United States v. Viloski, 814 F.3d 104, 110–11 (2d Cir. 2016) (holding that four-factor test is not exhaustive). We conclude that the orde red forfeiture, while monumental, was not “grossly disproportional” to the grav ity of the crimes of conviction. 17
While O’Hara contends that he was “sever al steps removed from the heart of the fraud,” O’Hara Br. 102, the district court did not clearly err in finding to the contrary because O’Hara’s “special programming” wo rk was “the essential backbone of the infrastructure through which th e IA fraud was perpetrated, ” J.A. 13350, and O’Hara himself altered general ledger and secur ities records and knowingly and deliberately prepared falsified documents for SEC and c lient audits, see id. at 13351. As for O’Hara’s claim that the securities fraud statut e does not target “com puter programmers or other technical workers whose specialized serv ices [are] needed to carry out the core fraud,” O’Hara Br. 102, the district court r easonably concluded that O’Hara was no mere “technical worker,” but a vital member of the conspiracy. Moreover, insofar as the statute focuses on knowing misrepresentation of material facts to defraud investors, see, e.g., United States v. Nouri, 711 F.3d 129, 141–42 & n.3 (2d Cir. 2013), O’Hara’s special-programming work falls squarely with in its reach because the only purpose of that programming was to effect misrepresent ations efficiently. Indeed, without the programming, the fraudulent scheme could not have been sustained.

17 Consequently, we need not address the government’s argument that the Excessive Fines Clause does not apply to forfeiture of the gross pro ceeds of crimes. Cf. United States v. Viloski, 814 F.3d at 1 09 n.7 (casting doubt on this argument).29 Because O’Hara faced a maximum prison se ntence of 100 years—effectively a life sentence—the challenged forfeiture cannot be deemed disproportional notwithstanding the statutory maximum fine of $10 million. See United States v. Varrone, 554 F.3d 327, 333 n.4 (2d Cir. 2009) (stating that forfeitu re in excess of maximum fine “is not necessarily constitutionally excessive”; ul timate question is ho w forfeiture amount compares to “gravity of the defendant’s offense” (i nternal quotation marks omitted)). 18 Where, as here, forfeiture ordered is in an amount equivalent to the undisputed, actual proceeds of the fraud (from the point O’Hara understood the criminal nature of his actions), we cannot conclude that the order was grossly dispro portional to the gravity of his offense. As to the fourth factor, the nature of th e harm caused by defendants’ conduct, as the district court observed , was “financial devastation of unprecedented magnitude” resulting in confidence in secu rities institutions and regulator y agencies being eroded and thousands of “innocent lives [being] irrevers ibly upended.” J.A. 13204, 13352. This assessment was not erroneous, much less clearly so. Further, although the district court recognized that O’Hara’s participation in the fraud was “more limited” and “less enthusiastic” than that of cert ain confederates, id. at 13351, it found his role essential to a scheme that even defense counsel described as “the greatest fraud in American history,” id. at 11388. For that reason, O’Hara’s comparison to the $1 .7 billion forfeiture

18 None of the defendants requested that the amount of forfeiture be submitted to the jury, see J.A. 12129, and, therefore, the di strict court was limited to a $10 million fine. See United States v. Pfaff, 619 F.3d 172, 175 (2d Cir. 2010). In any event, defendants do not dispute the forfeiture cal culation as a factual matter.30 judgment paid by JPMorgan under its DPA is inapt. JP Morgan agreed to pay that amount in exchange for a deferral of prosecutio n in connection with its failure to detect the fraud. By contrast, O’Hara was convicted at trial of actively perpetrating the fraud by creating the deceitful record s that effectively concealed it from detection for so long. Accordingly, we reject O’Hara ’s Eighth Amendment challenge. 8. Conclusion We have considered defendants’ remaini ng arguments and conclude that they are without merit. Accordingly, the dist rict court’s judgments are AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court