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United States v. Richard Brega

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 18 th day of February, two thousand twenty.

PRESENT: DENNIS JACOBS,

GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges

.

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UNITED STATES OF AMERICA,

Appellee,

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RICHARD BREGA,

Defendant

‐ Appellant.

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FOR APPELLEE: MICHAEL D. MAIMIN, Assistant United

States Attorney (Won S. Shin, Assistant United

States Attorney, on the brief ), for Geoffrey S.

Berman, United States Attorney for the2 Southern District of New York, New York,

New York.

FOR DEFENDANT

‐ APPELLANT: BRIAN A. JACOBS (Jeremy H. Temkin, Nicole

C. Cassidy, on the brief ), Morvillo Abramowitz

Grand Iason & Anello PC, New York, New

York, and Kerry A. Lawrence, on the brief

, Calhoun & Lawrence, LLP, White Plains, New

York.

Appeal from the United States District Court for the Southern District of

New York (Karas, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant

‐ appellant Richard Brega appeals from a judgment entered

December 21, 2018, after a jury trial, convicting him of mail fraud, in violation of

18 U.S.C. §§ 1341, 1346, and bribery and theft concerning a program receiving federal

funds, in violation of 18 U.S.C. §§ 666(a)(1)(A), (2). The district court sentenced Brega

principally to 50 months ʹ imprisonment, to be followed by one year of supervised

release. On appeal, Brega challenges the sufficiency of the evidence relating to his

bribery conviction, the prosecutor ʹ s summation during his trial, and the procedural

reasonableness of his sentence. We assume the parties ʹ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

Brega owned and controlled Brega DOT Maintenance Corp. ( ʺ Brega

DOT ʺ ), a vehicle maintenance and repair shop that serviced customers in Rockland3 County, New York. Brega DOT contracted with Rockland Boards of Cooperative

Educational Services ( ʺ Rockland BOCES ʺ ) to maintain and repair school buses.

According to the indictment, from 2012 through 2014, Brega participated in a bribery

and fraud scheme with William Popkave, the transportation supervisor at Rockland

BOCES. As part of this scheme, Brega allegedly falsified invoices submitted to

Rockland BOCES for preventative maintenance ( ʺ PM ʺ ) on buses that were never

actually brought to Brega DOT. 1

After Rockland BOCES began using Brega DOT for PM in 2008 or 2009,

Popkave brought his personal vehicle and vehicles belonging to his friends and family

to Brega DOT for maintenance services. Several years later, Popkave began approving

Brega DOT invoices sent to Rockland BOCES for PM, even though he understood that

services were not being performed. As part of the scheme, Popkave understood that he

was receiving ʺ free vehicle service from Brega DOT. ʺ App ʹ x at 1281. When Popkave

and Brega discussed ʺ arranging for bills on PM services ʺ Brega ʺ made references ʺ to

Popkave ʹ s outstanding debt and ʺ [k]ept [Popkave] up

‐ to

‐ date with the total, where it

was, [and] where [he] stood. ʺ App ʹ x at 1286. After Popkave ʺ sent the PMs over, ʺ he

believed that he would ʺ get some credits toward [his outstanding] bill ʺ with Brega

DOT. App ʹ x at 1284. Brega did not issue ʺ credits ʺ to Popkave, but he also never made

1 To remain compliant with the New York Department of Transportation ( ʺ DOT ʺ )

regulations, Rockland BOCES was required to show that its buses received PM and passed a

DOT inspection.4 efforts to collect Popkave ʹ s debt. Popkave understood that if he ʺ didn ʹ t put pressure on

[Brega], [Brega] didn ʹ t put pressure on [him]. ʺ App ʹ x at 1285.

In late 2014, Brega asked Popkave to go for a walk in the Brega DOT

parking lot. Popkave testified that during this ʺ walk and talk, ʺ Brega was concerned

that he was ʺ going to be investigated for business actions ʺ and that he wanted to ʺ clear

up all his open accounts, ʺ including Popkave ʹ s outstanding debt to Brega DOT. App ʹ x

at 1296

‐ 97. Popkave agreed to (ostensibly) sell Brega automotive tools in exchange for a

payment that would settle substantially all of his debt, while Brega promised to

ʺ slowly ʺ repay Popkave the value of the tools.

Brega was charged with: (1) conspiracy to commit mail fraud, (2) mail

fraud, (3) federal programs bribery, (4) theft of federal funds, and (5) obstruction of

justice. The jury acquitted Brega of obstruction of justice, was unable to reach a verdict

on the conspiracy to commit mail fraud count, and convicted Brega of the three

remaining counts. This appeal followed.

DISCUSSION

I. Sufficiency of the Evidence

ʺ We review sufficiency of evidence challenges de novo

, but defendants face

a heavy burden, as the standard of review is exceedingly deferential. ʺ United States v.

Baker

, 899 F.3d 123, 129 (2d Cir. 2018) (internal quotation marks omitted). ʺ We must

view the evidence in the light most favorable to the government, crediting every5 inference that could have been drawn in the government ʹ s favor, and deferring to the

jury ʹ s assessment of witness credibility and its assessment of the weight of the

evidence. ʺ Id. (internal quotation marks and brackets omitted).

Brega contends that the evidence was insufficient to show that he agreed

to provide free vehicle repairs in exchange for Popkave ʹ s assistance. Brega ʹ s argument

is unavailing because the evidence, viewed in the government ʹ s favor, was sufficient to

support his conviction. The evidence included: Popkave ʹ s testimony that Brega

consistently reminded him of his outstanding bill when they discussed PM, Popkave ʹ s

understanding that if he ʺ didn ʹ t put pressure on [Brega], [Brega] didn ʹ t put pressure on

[him], ʺ App ʹ x at 1285, and Brega ʹ s forgiveness of Popkave ʹ s $47,318.81 of personal debt

after Popkave helped Brega DOT process several PM invoices. Because we are required

to view the evidence both in totality and in the light most favorable to the Government,

we conclude that there was sufficient evidence to sustain Brega ʹ s bribery conviction.

II. Prosecutorial Misconduct

ʺ A defendant bears a substantial burden in arguing for reversal on the

basis of prosecutorial misconduct in the summation, ʺ and ʺ [f]laws in the government ʹ s

summation will require a new trial only in the rare case in which improper statements

‐‐

viewed against the entire argument to the jury

‐‐ can be said to have deprived the

defendant of a fair trial. ʺ United States v. Caracappa

, 614 F.3d 30, 41 (2d Cir. 2010). When

looking at an inappropriate remark to decide whether it warrants a new trial, ʺ we look6 to the severity of the misconduct, the measures adopted to cure the misconduct, and the

certainty of conviction absent the misconduct. ʺ Id. (internal quotation marks omitted).

Brega contends that he was denied a fair trial because the government

engaged in misconduct in summation that caused him substantial prejudice.

Specifically, he claims that the government made improper comments during its

rebuttal summation by: (1) ʺ disparaging defense counsel ʺ and (2) vouching for guilt by

arguing that ʺ members of the government team only ʹ look for justice, ʹʺ thereby

ʺ allud[ing] to facts outside the record. ʺ Appellant ʹ s Br. at 38

‐ 39. In response, the

government argues that each allegedly improper statement was appropriate as rebuttal

to arguments raised by Brega.

Viewed in the context of the trial as a whole, the government ʹ s statements

were permissible arguments about the merits of the defendant ʹ s theory of the case or

were appropriate responses to defense counsel ʹ s own summation comments, which

impugned the integrity of the government ʹ s case. See United States v. Carr

, 424 F.3d 213,

227 (2d Cir. 2005) ( ʺ [T]he government is allowed to respond to an argument that

impugns its integrity or the integrity of the case, and when the defense counsel have

attacked the prosecutor ʹ s credibility or the credibility of the government agents, the

prosecutor is entitled to reply with rebutting language suitable to the occasion. ʺ

(internal quotation marks omitted)).7 First, the allegedly ʺ disparaging comments ʺ occurred when the

government stated that it was defense counsel ʹ s job to ʺ make arguments ʺ and noted that

counsel could argue ʺ that the sun is not shining. ʺ App ʹ x at 999. This comment was not

ʺ disparaging ʺ and cannot constitute misconduct because it occurred in the context of

describing the contradictions in the defense ʹ s theory

‐‐ notably, the defense counsel ʹ s

suggestion that no fraud occurred and, at the same time, characterization of the

government ʹ s witnesses as untrustworthy because they were fraudsters.

Second, the government ʹ s reference to the prosecution team as ʺ career

Government folks looking for justice, ʺ App ʹ x at 1010, was made in response to the

defense ʹ s argument that the case against Brega was ʺ carefully engineered ʺ by ʺ strong

‐

arm[ing] witnesses into falsely accusing Richard Brega of illegal acts. ʺ App ʹ x at 947

‐ 48.

The government responded by explaining that the prosecution team went ʺ where the

case takes you. You look for justice. This is not about strong

‐ arming people into

getting anybody, any particular person. ʺ App ʹ x at 1010. This statement was an

understandable response to defense ʹ s argument that Popkave and other witnesses were

ʺ strong

‐ armed ʺ into accusing Brega of the charged crimes. See United States v. Rivera

,

971 F.2d 876, 883 (2d Cir. 1992). Even if the government ʹ s statements rose to the level of

misconduct, which, viewed in the context of the entire trial, we do not say, Brega still

fails to satisfy the requirements for a retrial. See Caracappa

, 614 F.3d at 41. First, the

statements were not ʺ severe, ʺ as they constituted a small part of the summation.8 Second, no specific curative measures were taken, as defense counsel did not object to

any of the statements, but the district court did instruct the jury that ʺ [w]hat the lawyers

said in their

. . . closing statements

. . . is not evidence. ʺ App ʹ x at 1034. Finally, there

was sufficient evidence supporting Brega ʹ s convictions, as discussed above.

III. Procedural Reasonableness of Sentencing

Section 3C1.1 of the Sentencing Guidelines provides for a two

‐ level

increase ʺ [i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect to the investigation, prosecution,

or sentencing of the instant offense of conviction, and (2) the obstructive conduct related

to (A) the defendant ʹ s offense of conviction and any relevant conduct; or (B) a closely

related offense. ʺ U.S.S.G. § 3C1.1. The district court applied the obstruction of justice

enhancement after finding, by a preponderance of the evidence, that Brega ʺ obstructed

justice ʺ through the automotive ʺ tools transaction. ʺ App ʹ x at 1462. On appeal from a

district court ʹ s decision to apply an enhancement, we review the court ʹ s findings of fact

for clear error, and ʺ [w]e review de novo a ruling that the established facts constitute

obstruction of justice, giving due deference to the district court ʹ s application of the

guidelines to the facts. ʺ United States v. Pena

, 751 F.3d 101, 105 (2d Cir. 2014) (per

curiam) (internal quotation marks omitted).

We conclude that the district court ʹ s application of the obstruction

‐ of

‐

justice enhancement was not unreasonable. The district court ʹ s finding that Brega ʹ s acts9 in concealing Popkave ʹ s outstanding debt to Brega DOT through a false scheme in

selling automotive tools was supported by the evidence and sufficient to establish an

obstructive intent. See United States v. Peterson

, 385 F.3d 127, 142 (2d Cir. 2004)

(affirming obstruction enhancement after concluding that sufficient evidence supported

a motive to ʺ impede the investigation ʺ ). Moreover, the district court was permitted to

enhance Brega ʹ s sentence based on acquitted conduct, see United States v. Vaughn

, 430

F.3d 518, 527 (2d Cir. 2005), and the district court relied on sufficient evidence (namely,

Popkave ʹ s testimony, the checks from the automotive tools transaction, and the timing

of the discussion in the Brega DOT parking lot) to conclude, by a preponderance of the

evidence, that Brega obstructed justice.

* * *

We have considered Brega ʹ s remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk