20

- 4278

- cr United States v. Constantine



## 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 CIT ING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 30 th da y of March , two thousand twenty

- two

. 3 4 PRESENT: 5 JOHN M. WALKER, JR. , 1 PIERRE N. LEVAL , 2 MICHAEL H. PARK, 3 Circuit Judges. 4

_____________________________________ __ 1 2 UNITED STATES OF AMERICA , 3 4 Appellee , 5 6

v. 20

- 4278 7 8 TOMMY C. CONSTANTINE, 9 AKA TOMMY C. HORMOVITIS , 10 11 Defendant

- Appell ant

. * 12

________________________________________ 13 14 FOR DEFENDANT

- APPELLANT : C HRISTOPHER D. M AN (Abbe David Lowell, 15 Kyllan J. Gilmore
, on the brief ) , Winston & 16 Strawn LLP, Washington, D.C. 17 18 FOR APPELLEE: S ARITHA K OMATIREDDY (Amy Busa, J. 19 Matthew Haggans, on the brief ), for 20 Jacquelyn M. Kasulis, Acting United States 21 Attorney for the Eastern District of New 22 York, Brooklyn, NY. 23

* The Clerk of C o urt is respectfully d irected to amend the captain as set forth above.2 Appeal from a judgment of the United States District Court for the Eastern District of New 1

York ( Bianco
, J .). 2

UPON DUE C ONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4
Defendant Tommy C. Constantine appeals his conviction for offenses related to his 5
participation in several fraudulent schemes. Constantine, toge ther with co

- defendant Phillip 6
Kenner, represented to victims that their investment funds would be used for real estate 7
investments in Hawaii (“Hawaii Project”), to purchase stock in a company founded by Constantine 8

called Eufora, and for investment

- relate d litigation (“Global Settlement Fund”). Instead, 9

Constantine and Kenner used millions of dollars from these funds for their personal benefit

. A 10
jury convicted Constantine o n one count of conspiracy to commit wire fraud, 18 U.S.C. § 1349, 11

five counts of wire fraud, 18 U.S.C. § 1343, and one count of conspiracy to commit money 12
laundering , 18 U.S.C. § 1956(h)

. 13

Constantine moved for a new trial based on ineffective assistance of counsel
, and in a 14

footnote of a supplemental letter
, he expressed uncertainty as to whether the government disclosed 15
some of Kenner’s text messages and asserted that he would file a Brady motion if they were in fact 16
not included in the government’s pret rial disclosures

. The district court denied the ineffective 17

assistance motion and f ound that Constantine failed to make a showing that there was a discovery 18

violation

. Constantine then filed a Brady motion arguing that the government failed to turn over 19

thousands of Kenner’s text messages contain ing material exculpatory evidence. 1 20

1 After Kenner’s phone and laptop were seized by law enforcement, they were first examined by a privilege review team to ensure that evidence in which Kenner had a privilege was not shown to the prosecution team or others. Kenner received a complete copy of the contents of the devices
, but a complete copy was never produced to the prosecution team or Constantine because the devices were thought to3 The district court denied Constantine’s Brady challenge at his sentencing hearing
, 21
concluding that “there was no realistic possibilit y that [the text messages] would have had an 22
impact on any of the counts of conviction as relates to Mr. Constantine.” Special App’x at 23. 23
Constantine timely appealed. W e assume the parties ’ familiarity with the underlying facts, the 24
procedural history of the case, and the issues on appeal. 25

“Where a defendant’s Brady claim was raised in a motion for new trial pursuant to Rule 33 26

of the Federal Rules of Criminal Procedure, we review the denial of th e motion for abuse of 27

discretion. ” United States v. Douglas , 525 F.3d 225, 245 (2d Cir. 2008) (cleaned up). “An 28
appellant seeking a new trial on the basis of an alleged Brady violation bears the burden of 29
demonstrating both that the Government supp ressed exculpatory information and that this 30

information was material.” United States v. Brunshtein , 344 F.3d 91, 101 (2d Cir. 2003). When 31
determining the materiality of the undisclosed information in question, “ w e examine the record de 32

novo ” but give “[ t] he trial judge’s assessment of the effect of nondisclosure . . . great weight.” 33

United States v. Rowland , 826 F.3d 100, 112 (2d Cir. 2016) (cleaned up)

. 34
We reject Constantine’s arguments. First, Constantine has not demonstrated a basis for 35
asserting a Brady entitlement to a new trial

. Constantine should have been aware that there were 36
messages that had not been turned over to him because Kenner used some of the messages as 37

evidence at trial. 2 Nevertheless, Constantine never made any effort to obtain these messages until 38

contain documents subject to Kenner’s attorney

- client privilege. The independent privilege review team identif i ed privileged materials
, and after the review was completed, sent the materials identified as non

privileged to Constantine and the prosecution team. It appears , however, that a large number of non

privileged messages of Kenner were not delivered to Constantine.

2 W hile it is correct that the government, after seizing Kenner’s phone and laptop pursuant to a search warrant, did not turn over to Constantine large portions of Kenner’s text messages , there is no evidence that this failure was attributable to bad faith or any effort to conceal material that would be helpful4 more than four years after trial

. Constantine argues that he had “ no way of knowing how widely 39
Kenner communicated by text

. ” Appellant’s Br. 23 . It makes no difference that Constantine did 40
not know how many messages Kenner had sent. He should have kn own that there were messages 41
seized by the government that had not been produced

. Furthermore, the evidence showed that he 42
knew Kenner was in frequent contact with the victims of their frauds. We conclude that 43

Constantine “ kne w or should have known of the essential facts permitting him to take advantage 44

of any exculpatory evidence. ” United States v. LeRoy , 687 F.2d 610, 618 (2d Cir. 1982 ) (citations 45
omitted)

. For these reasons, the undisclosed text messages were not suppressed under the 46
precedents governing Brady claims. See , e.g. , United States v. Zackson
, 6 F.3d 911, 919 (2d Cir. 47
1993) (no Brady suppression when defendant “had sufficient access to the essent ial facts enabling 48
him to take advantage of any exculpatory material that may have been available”)

. 49

Second , Constantine has failed to make any showing that the undisclosed text messages 50
would have been helpful to his case, much less that they would have been helpful enough to change 51
the jury’s verdict. Because Constantine argues that un identified text messages are material, 3 he 52

must “first establish[] a basis for his claim that [the un identified material] contains material 53

evidence.” Pennsylvania v. Ritchie , 480 U.S. 39, 58 n.15 (1987) (citing United States v. 54

Valenzuela

- Bernal , 458 U.S. 858, 867 (1982)); United States v. Walsh , 774 F. App ’ x 706, 707 (2d 55
Cir. 2019) (defendant ’ s “mere speculation that some exculpatory or impeachment material may 56

to Constantine , or that it was attributable to anything other than confusion from the effort by a privilege review team to identi fy and insulate documents in which Kenner might have a privilege.

3 The government states that a digital copy of Kenner’s phone, including his text messages, are in the FBI’s possession. It appears, however, that t he prosecution team has never had possess ion of these text messages and has thus failed to produce a copy to Constantine or the district court post

- trial. Thus, neither has been able to review the contents of the text messages. We note, however, that the prosecution team’s Brady obligation is o ngoing. See Leka v. Portuondo , 257 F.3d 89, 100 (2d Cir. 2001).5 hav e been withheld” insufficient to demonstrate Brady violation). When a conviction is attacked 57
after the fact in an effort to set it aside, “undisclosed evidence will be deemed material only if it 58
could reasonably be taken to put the whole case in such a di fferent light as to undermine confidence 59

in the verdict.” United States v. Payne , 63 F.3d 1200, 1209 (2d Cir. 1995) (cleaned up). 60
Constantine has failed to articulate a plausible basis for his claim that these messages are material

. 61
Constantine argues th at these unidentified text messages would show that Kenner , without 62
Constantine’s knowledge, made representations to victims about how the investment funds would 63

be used

. He also argues that the text messages could have supported his theory that he believ ed 64

that t he money he received came from legitimate sales of his stock in Eufora
, so that he was free 65
to spend the money as he wished. Finally, he argues that the text messages Kenner used at trial 66
and attached to his post

- trial filing s support the likelihood that the rest of Kenner’s text messages 67

must contain material evidence. We reject these arguments. 68

Constantine’s argument as to his lack of direct involvement is consistent with the evidence 69
the government presented at trial

. Throughout the tr ial, the government showed that Kenner was 70

the primary contact dealing with defrauded victims. Several investors testified that they were 71
unaware of Constantine’s involvement with the Hawaii Project, and others testified that Kenner, 72

not Constantine, conv inced them to invest in Eufora. A further showing that fraudulent 73
representations were made by Kenner would not have changed the picture presented to the jury by 74
the government’s evidence. 75

The government also presented substantial evidence of Constantine’s involvement in
, and 76

awareness of
, the fraudulent schemes. See United States v. Orena , 145 F.3d 551, 558 (2d Cir. 77
1998) (“Where substantial evidence of guilt entirely unrelated to the withheld impeachment 78

evi dence exists, it will be more difficult to argue that there is a reasonable probability that the 796 withheld evidence, if disclosed, would have resulted in a different verdict.”). For example, the 80
government demonstrated through bank records, a handwriting e xpert, and the testimony of a non

81
victim witness that Constantine diverted $1 million from funds invested in the Hawaii Project to 82
himself and concealed the fraud through sham consulting agreements that had been backdated and 83
contained forged signatures. 84

With respect to Constantine’s awareness of the f alse representations made to victims of the 85

Eufora scheme , the government relied on a recorded conversation between Constantine and 86
Kenner in which Constantine acknowledges his involvement in defrauding Eu fora investors. 87

Evidence reconfirming that the stock belonged to Constantine would not have tended to rebut the 88
government’s proof of Constantine’s fraud. 89

Furthermore
, as for some of the fraudulent representations, it was Constantine who made 90

them to the victims, not Kenner. For example, Constantine personally solicited a victim named 91

Nicholas Privitello for an investment in Eufora. Constantine induced Privitello to send $200,000 92
by wire in exchange for the promis e of a 1.5% interest in the stock of Eufora, which stock 93

Constantine had no intention to deliver and did not deliver

. Constantine’s arguments that the 94
undisclosed texts would have shown his entitlement to use the proceeds of the sale of his stock in 95

Eufor a are irrelevant in rebutting the evidence that he made fraudulent representations. 96
Constantine also took the lead in soliciting victims for the Global Settlement Fund scheme, and 97
the government proved through bank records, business records, witness testi mony, and text 98
messages that Constantine made misrepresentations to victims about what their investments would 99
be used for and spent the funds on personal expenses such as legal fees, rent, and automobile work. 100
Finally, the text messages that have been identified are neither exculpatory n or impeaching. 101
At best, one of Kenner’s text conversations contradicts victim Jay McKee’s testimony that he did 1027 not recall, prior to investing in the Global Settlement Fund, that his inv estment would be spent on 103
certain assets. We agree with the district court that this text conversation was “completely 104
insignificant” because McKee was not told that those assets were essentially worthless, nor was 105

he told that the funds would be used for Constantine and Kenner’s personal expenses. Special 106

App’x at 25

– 26. 107

For the above reasons , w e discern no abuse of discretion in the court’s den ial of 108

Constantine’s motion for a new trial. 4 109

We affirm the d istrict c ourt’s ruling as to Constantine’s ineffe ctive assistance of counsel 110

claim as it relates to the identified text messages, which are no t material and thus cannot establish 111
prejudice

. We do not otherwise rule on this claim because we lack a n adequate factual record

. 112
Considering the messages that had been disclosed, the district court ruled that Constantine suffered 113
no prejudice from his counsel’s failure to obtain them before trial because there was no likelihood 114
they would have chang ed the jury’s verdict. B ecause Constantine failed to raise the issue of the 115
undisclosed text messages until more than four years after trial, however, the district court was 116
reasonably unwilling to postpone sentencing for the time needed for a full record to be assembled 117
on that question

. The district c ourt therefore ruled that Constantine would not be precluded from 118
raising the issue in a collateral attack under 28 U.S.C. § 2255. 119

As Constantine’s ineffective assistance claim on this appeal is limited to the issues 120
presented by the undisclosed text messages, we decline to evaluate the claim on this record

. Our 121
ruling is without prejudice to Constantine asserting such a claim in a future motion under 28 U.S.C. 122

§ 2255 , as the district court contemplated

. See United States v. Fiseku , 915 F.3d 863, 874 (2d Cir. 123

4 For the same reasons we reject Constantine’s Brady challenge, w e reject his argument in the alternative to compel production of the text messages and to remand for an assess ment of the ir materiality

.8 2018). 124

We have considered the remainder of Constantine ’ s arguments and find them to be without 125

merit. 5 Accordingly, we affirm the judgment of the district court

. 126

FOR THE COURT: 127 Catherine O ’ Hagan Wolfe, Clerk of Court 128

5 We reject Constantine’s challenge based on an alleged violation of his rights under California v. Trombetta , 467 U.S. 479 (1984)
, because that right is implicated only when the government permanently loses potentially exculpatory evidence. See id. at 486

– 87. Here, Kenner’s phone , laptop, and the electronic files generated from the devices when they were originally searched remain in FBI custody.