1 18-3492-cr United States of America v. Thomas Murtha 

### 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 5 th day of February, two thousand twenty.
Present: P IERRE N. L EVAL , R EENA R AGGI , D EBRA A NN L IVINGSTON , Circuit Judges ,

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 18-3492-cr
T HOMAS M. M URTHA , Defendant-Appellant

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_____________________________________ For Defendant-Appellant: M OIRA L. B UCKLEY , Assistant Federal Defender (Terry S. Ward, Federal Defender on the brief ), Hartford, Connecticut For Appellee: J ENNIFER R. L ARAIA , Assistant United States Attorney (John H. Durham, United States Attorney for the District of Connecticut, David T. Huang, Assistant United States Attorney on the brief ), New Haven, Connecticut2 Appeal from a judgment of the United States Dist rict Court for the Dist rict of Connecticut (Michael P. Shea, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Thomas M. Murtha (“Mu rtha”) appeals from a November 20, 2018 judgment of the United States District Cour t for the District of Connecticut (Shea, J. ) convicting him, based on his guilty plea, of wire fraud in violation of 18 U.S.C. § 1343. Murtha was sentenced to 78 months of impris onment, three years of supervised release, and ordered to pay $1,994,467.15 in restitution as well as a $100 special assessment. D.A. at 21–22. Murtha, a lawyer, defrauded several individuals , including clients, family members, and trust beneficiaries, of substantial sums of money. D.A. at 21. On appeal, Murtha argues that his sentence is procedurally unreasonable because the district court mistakenly included in its total loss calculation $660,000 in loss associated with an oral real-estate investment agreement between Murtha and an associate, H.G. 1 Murtha also challenges the substantive reasonableness of his

sentence. We assume the parties’ familiarity with the unde rlying facts, the proced ural history of the case, and the issues on appeal.
* * * I. Procedural Reasonableness “We review a sentence for procedural and subs tantive reasonableness under a ‘deferential

1 Including this loss increased Mu rtha’s Guidelines range from 51 to 63 months to 63 to 78 months. D.A. at 117.3 abuse-of-discretion standard.’” United States v. Thavaraja , 740 F.3d 253, 258 (2d Cir. 2014) (quoting Gall v. United States , 552 U.S. 38, 41 (2007)). “A sentence is procedurally unreasonable if the district cour t fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sent encing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly errone ous facts, or fails ade quately to explain the chosen sentence.” United States v. Sampson , 898 F.3d 287, 311 (2d Cir. 2018). A sentencing court’s “underlying factual findings with respect to sentencing, es tablished by a preponderance of the evidence, are review ed for clear error.” United States v. Cossey , 632 F.3d 82, 86 (2d Cir. 2011) (internal quotation marks an d citation omitted). Whether a particular individual is a “victim[] within the meaning of Guidelines § 2B1.1(b)(2) is [] a question of fact.” United States v. Skys , 637 F.3d 146, 152–53 (2d Cir. 2011). To “hold that a factual finding is ‘clearly erroneous,’ we must be left with the definite and firm conviction th at a mistake has been committed.” United States v. DeSilva , 613 F.3d 352, 356 (2d Cir. 2010). Where “there are two permissible views of the eviden ce, the factfinder’s choice be tween them cannot be clearly erroneous.” United States v. Norman , 776 F.3d 67, 76 (2d Cir. 2015) (internal quotation marks omitted). On appeal, Murtha renews his challenge to the district court’s fi nding that H.G. was a victim of Murtha’s frauds. Murtha does not dis pute that H.G. lost th e $660,000 he gave Murtha to invest pursuant to their agreement. Nor does Murtha dis pute that he used some of H.G.’s money to his own personal benefi t, purchasing a residential prope rty in Michigan where Murtha lived with his girlfriend before quitclaiming the propert y for $1 to a trust for the benefit of the girlfriend’s children. Instead, Murtha argues that there was insufficie nt evidence to conclude that he had fraudulent intent from th e outset of his agreement with H.G. and that his subsequent4 conduct, involving mere breaches of contract, are not sufficient to es tablish this fraudulent intent. We disagree. Although breach of contract does not alone co nstitute fraud, the fact of a contractual relationship between the parties does not “remove a party’s conduc t from the scope of fraud.” U.S. ex rel. O'Donnell v. Countrywide Home Loans , Inc. , 822 F.3d 650, 658 (2d Cir. 2016). As fraudulent intent “is rarely suscep tible of direct proof, and must [] be established by legitimate inferences from circumstantial evidence,” the cour se of the parties’ dealings is often a crucial source of evidence of fraudulent intent. Id. at 659 (internal quotation ma rks and citation omitted). In particular, fraudulent misrepr esentations made “in the course of performance or to feign performance under the contract” may show the requisite intent. Id. (citing United States v.
Naiman , 211 F.3d 40, 44, 49 (2d Cir. 2000)). Here, Murtha’s conduct provided the distri ct court with sufficient evidence to infer fraudulent intent both at the commencement of hi s arrangement with H. G. and throughout their course of dealing. In particular, Murtha’s 2016 response to a questionnaire from H.G’s lawyers indicated that Murt ha had placed over $800,000 of his own money at risk in the venture, an assertion which was patently false. Additiona lly, Murtha misrepresented the purchase date of several properties in this same questionnaire . These misrepresentations in the course of performance, especially considered in connectio n with Murtha’s ongoing fraudulent conduct with regard to other victims, are mo re than sufficient to show by a preponderance of the evidence that Murtha had fraudulent intent at the time his agreemen t with H.G. was formed as well as thereafter. Accordingly, the district court’s finding that H.G. was a victim of fraud was amply supported by the evidence and, in any case, was not clear error. 2

2 While the record amply supports the district c ourt’s inclusion of H.G.’s loss in its Guidelines5 II. Substantive Reasonableness This court's “review of a sentence for substantive reasonableness is particularly deferential[,] . . . identifyin g as substantively unreasonable onl y those sentences that are so ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law’ that allowing them to stand would ‘damage the administration of justice.’” United States v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012) (quoting United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009)). “In reviewing [a sentence] for substantive reas onableness, we consider the totality of the circumstances, and reverse only in exceptional cas es where the trial court's decision cannot be located within the range of permissible decisions[.]” United States v. Mason , 692 F.3d 178, 181 (2d Cir. 2012) (internal quotation marks and citations omitted). Contrary to Murtha’s claim on appeal, his 78-month senten ce is not “shockingly high.” Broxmeyer , 669 F.3d at 289. First, the sentence was w ithin the correctly calculated Guidelines range of 63 to 78 months’ impris onment. Although there is no pres umption that a se ntence within the Guidelines range is reasonable, “in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sent ences that would be reas onable in the particular circumstances.” United States v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006). Second, the seriousness of Murtha’s conduc t supports the sentence. See United States v. Jones , 531 F.3d 163, 174 (2d Cir. 2008) (recognizing wide range of reasona ble sentences available to district court). As the district court emphasized, Murtha was “a n Officer of the Court for 35 years” yet had

calculation, a contrary conclusion would afford Mu rtha no relief because the district court gave a “detailed explanation” why a 78-month sentence was appropriate “irrespective of the Guidelines range,” i.e. , because of the seriousness of Murtha’s conduct and th e need to signal to other lawyers and the public that lawyers do not receive special treatment by virtue of their professional status. Molina-Martinez v. United States , 136 S. Ct. 1338, 1346 (2016); see United States v. Jass , 569 F.3d 47, 68 (2d Cir. 2009) (stating that “[w]here we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless”).6 exhibited “predatory behavior” in committing the charged crimes ag ainst clients and others. D.A. at 109–11. Indeed, the district co urt stressed the seriousness of this fraud. D.A. at 112. Further, the district court explai ned the particular need for deterre nce in this case in order to send “the right message to lawyers . . . that lawyers [do not] get special deals.” D.A. at 118. In these circumstances, the sentence was not outside the br oad range of substantively reasonable sentences available to the district court. We have considered Murtha’s remaining argume nts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk