13-3162-cr (L)

United States v. Jill Platt, Donna Bello

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

13th day of April, two thousand fifteen.

Present: ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

RICHARD C. WESLEY,

Circuit Judges.

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 13-3162-cr (L), 

13-3303-cr (Con)

JILL PLATT, DONNA BELLO,

Defendants-Appellants.

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_____________________________________________

Appearing for Appellants: Alexandra A.E. Shapiro (James Darrow, Chetan Patil, on the

brief), Shapiro, Arato & Isserles LLP, New York, N.Y., for

Appellant Jill Platt.

Norman Pattis (Daniel Erwin, on the brief), Pattis Law Firm, LLC, 

Bethany, CT, for Appellant Donna Bello.

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 The Clerk of Court is to amend the caption as above.
Appearing for Appellee: Douglas P. Morabito, Assistant United States Attorney for the

District of Connecticut (Peter S. Jongbloed, Assistant United

States Attorney, Marc H. Silverman, Assistant United States

Attorney, Dierdre M. Daly, United States Attorney, on the brief),

New Haven, CT.

Appeal from the United States District Court for the District of Connecticut (Thompson, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of conviction be and they hereby are AFFIRMED, but the

defendants’ sentences are VACATED, and the case is REMANDED to the district court for

resentencing.

Appellants-defendants Jill Platt and Donna Bello organized, and participated in, what

they referred to as “gifting tables” or simply “tables.” Comprised of exclusively female

membership, the tables were structured as exponentially expanding pyramids, with one

individual poised at the apex of a table (the “dessert”), two occupying the row below (the

“entrees”), four in the following tier (the “soup and salads”), and finally eight at the base (the

“appetizers”). In order to join a table, new members began as appetizers and were required to

“gift” $5,000 to the dessert. With a full table the dessert received a total of $40,000, and the table

would bud off into two new tables with all existing participants shifting up a level. New women

would be recruited to fill the bottom rank of the two newly-minted tables. 

After a joint trial, Platt was convicted of one count of conspiracy to defraud the Internal

Revenue Service (“IRS”), in violation of 18 U.S.C. § 371, one count of filing a false tax return,

in violation of 26 U.S.C. § 7206(1), four counts of wire fraud, in violation of 18 U.S.C. § 1343,

and one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. She appeals

from the district court’s August 15, 2013 judgment of conviction, sentencing her principally to

54 months’ imprisonment. Bello appeals from the district court’s August 15, 2013 judgment,

convicting her of one count of conspiracy to defraud the IRS, two counts of filing a false tax

return, eleven counts of wire fraud, and one count of conspiracy to commit wire fraud, and

principally sentencing her to 72 months’ imprisonment. We assume the parties’ familiarity with

the procedural history, specification of issues for review, and underlying facts, which we recount

here only to the extent necessary to explain our decision.

On appeal, defendants contend that the government’s use of peremptory strikes to

eliminate female members of the venire violated Batson v. Kentucky, 476 U.S. 79 (1986); the

district court abused its discretion by admitting the testimony of attorney William O’Connor and

by declining to compel immunity for three defense witnesses, thereby also violating defendants’

constitutional right to present a defense; and the district court abused its discretion in admitting

the expert testimony of Dr. Kenneth Kelly. We find these arguments to be without merit and

accordingly affirm the judgments of conviction. However, defendants also challenge their

sentences, contending that the district court penalized them for exercising their right to trial and

imposed sentences that were otherwise procedurally and substantively unreasonable. We find

that the district court erred by failing to make the particularized findings required by United

States v. Studley, 47 F.3d 569 (2d Cir. 1995), and remand the case for resentencing.

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I. Batson Claim

The Supreme Court has held under Batson and its progeny that the Equal Protection

Clause prohibits the government from using its peremptory challenges to exclude potential jurors

for a discriminatory purpose. See 476 U.S. at 89; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,

146 (1994) (extending Batson to discrimination in the selection of jurors on the basis of gender).

Under Batson’s three-step burden-shifting framework, if a party objecting to a peremptory

challenge establishes a prima facie case of discrimination, the opposing party must then provide

a neutral justification for the exercise of the challenge. United States v. Douglas, 525 F.3d 225,

238 (2d Cir. 2008) At the third step, the trial court must determine whether the objecting party

has met its ultimate burden to demonstrate that the peremptory challenge was the result of

purposeful discrimination. Id. Because a trial court’s finding as to the intent underlying the use

of a peremptory challenge rests principally upon a credibility assessment, we ordinarily accord

that determination “great deference” and review it only for clear error. Hernandez v. New York,

500 U.S. 352, 364–65 (1991). “‘Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.’” United States v. English, 629

F.3d 311, 319 (2d Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985)).

Defendants argued to the district court that the government used its peremptory strikes to

exclude female members of the venire on the basis of gender. In response, the district court

elicited gender-neutral explanations from the government for exercising these strikes. While the

district court might have more clearly expressed whether it credited each of the government’s

explanations, the court sufficiently complied with its obligation to adjudicate explicitly

defendants’ Batson challenge. See Messiah v. Duncan, 435 F.3d 186, 199 (2d Cir. 2006) (finding

district court “unequivocally stated” its acceptance of prosecutor’s strikes, thereby satisfying

third Batson step, where it was “evident that the trial judge did not discredit or find unpersuasive

the prosecutor’s race-neutral explanations”); see also McKinney v. Artuz, 326 F.3d 87, 100 (2d

Cir. 2003) (“Although reviewing courts might have preferred the trial court to provide express

reasons for each credibility determination, no clearly established federal law required the trial

court to do so.”). On appeal defendants contend that the district court erred in determining that

the government’s proffered reasons were not pretexts for gender discrimination. We disagree. 

The district court did not clearly err in crediting the government’s explanations for

exercising its peremptory strikes against female venire members and denying defendants’ Batson

challenge. Given the nature of the defendants’ scheme, it was not impermissible for the district

court to credit the government’s explanation that the struck female venire members had a close

family member with a negative experience with the IRS or were potentially sympathetic to

defendants because of their employment, see United States v. Alvarado, 951 F.2d 22, 24–25 (2d

Cir. 1991) (affirming the district court’s finding type of employment an acceptable race-neutral

basis for peremptory strike), or regular contact with individuals convicted of crimes, including

embezzlement. Nor was it impermissible to credit the government’s use of a peremptory strike

on a juror who expressed difficulty in reaching decisions. See Snyder v. Louisiana, 552 U.S. 472,

477 (2008) (recognizing that determinations of “demeanor lie peculiarly within a trial judge’s

province”) (internal quotation marks omitted). While other members of the venire shared some

related issues, they did not compare to those of the jurors who were excluded. The district court

was permitted to find that the prosecutor’s statements were plausible grounds for exercising the

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government’s peremptory strikes, and were not a pretext for discrimination. See Hernandez, 500

U.S. at 365 (“As with the state of mind of a juror, evaluation of the prosecutor’s state of mind

based on demeanor and credibility lies peculiarly within a trial judge’s province.”) (internal

quotation marks omitted).

II. Admission of O’Connor Testimony

Defendants next argue that the district court abused its discretion in permitting William

O’Connor, a tax attorney, to testify, in supposed violation of Fed. R. Evid. 401, 402, and 403,

about advice he provided to third parties about the legality of the gifting tables. Ordinarily, we

defer to a district court’s evidentiary rulings, and reverse only for an abuse of discretion. United

States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013). “To find such abuse, we must conclude that the

trial judge’s evidentiary rulings were arbitrary and irrational.” United States v. Mercado, 573

F.3d 138, 141 (2d Cir. 2009) (internal quotation marks omitted). Because defendants failed to

lodge a relevant objection to preserve this issue for appeal, this claim is subject to plain error

analysis.

O’Connor testified that he informed a group of gifting table participants, including Eileen

Brennan, and possibly Nancy Dillon, Ann Jordan, and Joan Collins, that the $5,000 payments

received by a dessert were not gifts but in fact would be considered taxable payments by the IRS.

He further stated that he had not supplied any legal advice to defendants directly nor did he

know if his statements had been conveyed to them.

This evidence was undoubtably relevant because it tended to undermine defendants’

good faith defense that they relied on the advice of attorneys, transmitted by other gifting table

participants, that the tables were operating legally. We have noted that “[e]vidence of others’

knowledge” may be “highly relevant [where it] ha[s] . . . been supplemented by evidence

supporting the conclusion that such knowledge was communicated to [the defendant].” United

States v. Kaplan, 490 F.3d 110, 121 (2d Cir. 2007). Here there was evidence that third parties

present at the meeting with O’Connor communicated with defendants about the advice received.

However, the district court may exclude even relevant evidence “if its probative value is

substantially outweighed by [the] danger of . . . unfair prejudice.” Fed. R. Evid. 403. The

testimony here was of limited probative value as the government did not offer evidence that the

third parties actually conveyed their knowledge of the gifting tables’ illegality to defendants. See

Kaplan, 490 F.3d at 120 (“[E]vidence regarding the knowledge of individuals other than the

defendant should be admitted only if there is some other evidence in the record . . . from which

to conclude that the defendant would have the same knowledge.”) (emphasis added). 

However, we are not persuaded that the limited probative value of this testimony was

substantially outweighed by the danger of unfair prejudice. Unfairness does not result from the

tendency of evidence to disprove a party’s case but refers instead to an “undue tendency to

suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” 

Fed. R. Evid. 403 advisory committee’s note. Unlike Kaplan, the jury here was not “required to

draw a series of inferences, unsupported by other evidence,” to connect O’Connor’s testimony to

defendants’ own knowledge. Kaplan, 490 F.3d at 122. A jury, crediting O’Connor’s veracity as a

witness, could reasonably infer that Brennan, who was an active participant in the gifting table

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scheme would have accurately conveyed O’Connor’s advice when discussing it with defendants.

“The logical inferences resulting from proffered evidence do not engender the unfair prejudice

against which Rule 403 is directed.” United States v. Diaz, 878 F.2d 608, 615 (2d Cir. 1989)

(internal quotation marks omitted). Accordingly, we detect no plain error in the district court’s

admission of this testimony.

III. Refusal to Compel Immunity for Defense Witnesses 

Defendants also argue that the district court erred in refusing to compel the government

to extend immunity to three defense witnesses—Brennan, Dillon, and Deanne Capotosto. The

testimony of these witnesses, defendants claim, would have rebutted the testimony of O’Connor

and Edward Marcus, an attorney who testified that he never advised gifting table participants

that the tables were legal, and would have generally bolstered defendants’ good faith defense.

We review a district court’s decision not to compel immunity for abuse of discretion, and

consider whether “(1) the government has engaged in discriminatory use of immunity to gain a

tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth

Amendment; and (2) the witness’ testimony will be material, exculpatory and not cumulative and

is not obtainable from any other source.” United States v. Ebbers, 458 F.3d 110, 118 (2d Cir.

2006) (internal quotation marks omitted). So “few and exceptional” are the situations in which

the government is required to grant immunity to defense witnesses that “in the nearly thirty years

since establishing a test for when immunity must be granted, we have yet to reverse a failure to

immunize.” United States v. Ferguson, 676 F.3d 260, 291 (2d Cir. 2011). Nor does this case

present such a situation.

Evidence before the district court indicated that Brennan, Dillon, and Capotosto were

potentially subject to prosecution for their participation in the gifting tables, which is a legitimate

reason to decline to compel immunity. Brennan and Dillon had each received a letter from the

government informing them that they were targets of federal investigation. In addition, the

district court determined that Capotosto’s potential criminal liability was evident from secretly

recorded conversations of gifting table participants, her admissions to government investigators,

and her grand jury testimony. It is well established that “[t]he Government may reasonably

refuse to grant immunity where a witness is a potential target of criminal prosecution.” United

States v. Rosen, 716 F.3d 691, 704 (2d Cir. 2013) (declining to reverse failure to immunize

where district court found witness was “at a very minimum, . . . prosecutable for tax evasion

arising out of the same general bundle of events . . . that [we]re involved in th[at] case”) (internal

quotation marks omitted). Nor, in any event, was there any convincing evidence of prosecutorial

overreaching or manipulation of the immunity device for tactical advantage. Accordingly, we

find that the district court did not abuse its discretion in declining to compel the government to

immunize defendants’ witnesses.

IV. Right to Present a Defense

Defendants contend that they were denied the right to present a complete defense when

the district court failed to compel the government to immunize their witnesses but admitted

O’Connor’s testimony.

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A criminal defendant has “a fundamental due process right to present a defense.” United

States v. Mi Sun Cho, 713 F.3d 716, 721 (2d Cir. 2013). However, this right “is not absolute, for

a defendant must comply with established rules of procedure and evidence designed to assure

both fairness and reliability,” id. (internal quotation marks omitted), “and may, in appropriate

cases, bow to accommodate other legitimate interests in the criminal trial process.” Williams v.

Lord, 996 F.2d 1481, 1483 (2d Cir. 1993) (internal quotation marks omitted). The erroneous

exclusion of evidence violates a defendant’s federal constitutional right to present a defense only

if “the omitted evidence evaluated in the context of the entire record creates a reasonable doubt

that did not otherwise exist.” Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (brackets and

internal quotation marks omitted). 

Even assuming arguendo that the government should have been compelled to immunize

defendants’ witnesses, we conclude that the testimony would not have created reasonable doubt

that did not otherwise exist. The government presented substantial evidence including direct

testimony, emails, and meeting notes from which the jury could have concluded that defendants

knew that gifting table payments were taxable income. We find therefore no violation of

defendants’ right to present a defense.

V. Admission of Kelly Testimony 

Defendants assert that, in violation of Fed R. Evid. 704(b) and 403, expert witness Dr.

Kenneth Kelly offered an inadmissible legal opinion and impermissibly testified to defendants’

mens rea, and further that the probative value of his testimony was substantially outweighed by

the danger of unfair prejudice, confusing the issues, and misleading the jury.

The decision of the district court to admit or exclude expert testimony is reviewed for an

abuse of discretion and will not be set aside unless the ruling was manifestly erroneous. United

States v. Williams, 506 F.3d 151, 159–60 (2d Cir. 2007). We have noted that “Rule 403

determinations command especial deference because the district court is in the best position to

do the balancing mandated by Rule 403.” United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir.

2011) (internal quotation marks omitted). 

Under Fed. R. Evid. 704, an expert witness may neither testify to a legal conclusion, see

Hygh v. Jacobs, 961 F.2d 359, 363–64 (2d Cir. 1992), nor expressly state a “final conclusion or

inference as to a defendant’s actual mental state at the time of a crime,” United States v.

DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993) (internal quotation marks omitted). Such

testimony is prohibited because it “poses a uniquely heightened danger of intruding on the jury’s

function.” Id. 

Defendants concede that Dr. Kelly did not refer to the gifting tables as illegal or

fraudulent and they fail to point to any of his remarks expressly stating or inferring defendants’

knowledge of the tables’ illegality. In his testimony Dr. Kelly opined, based solely upon

literature produced by defendants and other table participants, that the structure of the gifting

tables met the definition of a pyramid scheme, but he acknowledged that his opinion was not

based upon the actual operation of the tables nor on the conduct of the individuals involved. In

so doing Dr. Kelly neither impermissibly relied “directly upon the language of the statute and

accompanying regulations” under which defendants were charged, United States v. Scop, 846

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F.2d 135, 140 (2d Cir. 1988), nor drew “conclusions as to the significance of [defendants’]

conduct or evidence in the particular case,” United States v. Boissoneault, 926 F.2d 230, 233 (2d

Cir. 1991). Similarly, it is clear that Dr. Kelly’s testimony did not “stat[e] the bottom-line

inference” that defendants knew the tables were illegal. DiDomenico, 985 F.2d at 1165. We

conclude that the district court did not abuse its discretion in admitting Dr. Kelly’s testimony,

and find no merit in the argument that the probative value of his testimony was substantially

outweighed by the factors defendants identified. 

VI. Challenges to Sentencing

Finally, defendants challenge their sentences on several grounds. They argue that the

district court miscalculated the loss amounts used to calculate their Guidelines base offense

levels, failed to consider two bases for downward departure, punished them for exercising their

right to go to trial, and imposed substantively unreasonable sentences. 

Loss Amount

Defendants contend that their sentences should be vacated because the district court

improperly calculated the intended loss amount by (1) failing to make the particularized finding

required by Studley and U.S.S.G. § 1B1.3(a)(1)(B), and (2) including gains to non-coconspirators and gain amounts that were not actual losses in the loss calculation.

We review district court sentencing decisions for procedural reasonableness under a

“deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

2008) (internal quotation marks omitted). As we have explained, “[a] district court commits

procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelines

range . . . .” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012).

Under Section 1B1.3(a)(1)(B) “[a] district court may sentence a defendant based on the

reasonably foreseeable acts and omissions of his co-conspirators that were taken in relation to a

conspiracy.” United States v. Getto, 729 F.3d 221, 234 (2d Cir. 2013). However, to hold a

defendant accountable for jointly undertaken criminal activity, a district court must first “make a

particularized finding of the scope of the criminal activity agreed upon by the defendant” and, in

addition, make a particularized finding that relevant co-conspirator conduct was foreseeable to

the defendant. Studley, 47 F.3d at 574.

At sentencing, the district court committed procedural error by failing to make

particularized findings concerning whether the conduct of other gifting table participants fell

within the scope of defendants’ agreement, and whether this conduct was foreseeable to

defendants. The district court relied on a spreadsheet prepared by the government that listed

gains to other table participants, but excluded individuals who lacked an “established

association”—or “material connection” in the district court’s understanding—with defendants.

The court further excluded gains to individuals where “it was unclear whether they were

operating substantially independently” of defendants, and only partially including gains where

“it was unclear whether part of the[] foreseeable gains [of other table participants] should be

excluded.” The court thereby eliminated from the loss amount calculation gains to some

participants with apparently tenuous connections to defendants but neither explained what

constituted a material connection nor clearly indicated whether the gains attributed to defendants

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were foreseeable. Accordingly, we conclude that the district court’s findings did not comply with

the requirement of Studley to make particularized findings relating to “the scope of the specific

conduct and objectives embraced by the defendant[s’] agreement,” Studley, 47 F.3d at 574

(quoting U.S.S.G. § 1B1.3, cmt. n. 2) (emphasis omitted), and “as to whether the activity was

foreseeable to the defendant[s],” id.

Although we remand for the district court to make particularized findings, consistent with

our decision in Studley, we harbor significant doubts regarding whether all of the women whose

gain was used to calculate defendants’ loss amounts were properly considered members of the

fraud conspiracy. As we have noted “the scope of conduct for which a defendant can be held

accountable under the sentencing guidelines is significantly narrower than the conduct embraced

by the law of conspiracy.” Getto, 729 F.3d at 234 n.11 (internal quotation marks omitted). For

the purposes of sentencing, mere “knowledge of another participant’s criminal acts” or “of the

scope of the overall operation” does not make a defendant criminally responsible and it is less

likely that an activity was jointly undertaken if the participants worked independently and did

not “pool their profits and resources.” See Studley, 47 F.3d at 575.

We decline the government’s invitation to affirm the loss calculation under Section

1B1.3(a)(1)(A), which provides that “acts . . . committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant . . . that occurred during the commission

of the offense of conviction” are to be considered in calculating a defendant’s base offense level.

U.S.S.G. § 1B1.3(a)(1). While defendants supervised, trained, and otherwise interacted with

many gifting table participants, the record evidence is insufficient to conclude that defendants

aided or abetted all of the individuals whose conduct was attributed to them for purposes of

calculating the loss amount. 

Accordingly, defendants’ sentences are vacated and the case is remanded to the district

court to make particularized findings, consistent with our decision in Studley, relating to the

scope of the conspiracy defendants agreed to and the foreseeability of the gains caused by other

gifting table participants, and to recalculate the total amount of loss attributable to each

defendant. Because we remand this case, we do not reach defendants’ other challenges to the

procedural and substantive reasonableness of their sentences. 

We have considered the remainder of defendants’ arguments and find them to be without

merit. Accordingly, we AFFIRM the judgments of conviction but VACATE the defendants’

sentences and REMAND the case to the district court for resentencing.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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