11-3591-cr(L) United States v. Goffer **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**  **’ 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 “**  **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 1 for the Second Circuit, held at the Thurgood Marshall United 2 States Courthouse, 40 Foley Square, in the City of New York, 3 on the 1 st day of July, two thousand thirteen. 4 5 PRESENT: JOHN M. WALKER, Jr., 6 ROBERT D. SACK, 7 RICHARD C. WESLEY, 8 Circuit Judges

. 9 10 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , No. 11-3591-cr(L) 16 No. 11-3778-cr(CON) 17 -v.- No. 11-4193-cr(CON) 18 No. 11-4409-cr(CON) 19 ZVI GOFFER, CRAIG DRIMAL, MICHAEL KIMELMAN, 20 21 Defendants-Appellants, 22 23 JASON GOLDFARB, ARTHUR CUTILLO, 24 EMANUEL GOFFER, DAVID PLATE, 25 26 Defendants. * 27 28 29 30

* The Clerk of the Court is directed to amend the caption in the case to conform with the above.FOR APPELLANT ALEXANDER MARTIN DUDELSON, Law Office of 1 ZVI GOFFER: Alexander M. Dudelson, Brooklyn, NY 2 3 FOR APPELLANT MICHAEL S. SOMMER (Morris J. Fodeman, 4 MICHAEL KIMELMAN: Scott D. Tenley, on the brief ) Wilson 5 Sonsini Goodrich & Rosati, P.C., New 6 York, NY 7 8 FOR APPELLANT ARLENE VILLAMIA-DRIMAL, Weston, CT 9 CRAIG DRIMAL: 10 11 FOR APPELLEE ANDREW L. FISH, Assistant United States 12 UNITED STATES Attorney (Richard C. Tarlowe, Assistant 13 OF AMERICA: United States Attorney, on the brief ), 14 for Preet Bharara, United States Attorney 15 for the Southern District of New York, 16 New York, NY. 17 18 Consolidated appeals from the United States District 19 Court for the Southern District of New York (Sullivan, 20 Judge ). 21 22 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 23

**AND DECREED** that the judgments of the District Courts are 24
**AFFIRMED,** with the exception of the forfeiture order, which 25 is **VACATED** and **REMANDED**

. 26 Appellants Zvi Goffer, Michael Kimelman, and Craig 27 Drimal appeal from judgments of conviction entered on 28 September 22, 2011; October 13, 2011; and September 1, 2011 29 respectively, in the United States District Court for the 30 Southern District of New York (Richard J. Sullivan, Judge ). 31 Defendants’ challenges to their convictions and sentences 32 are discussed in a related opinion, as are relevant facts 33

2and procedural history. Goffer, –- F.3d --, 2013 WL -- (2d 1 Cir. 2013). 2 Defendants raise additional challenges to their 3 convictions, including that (1) Section 10(b) of the 4 Securities Exchange Act of 1934 is unconstitutionally vague; 5 (2) the wiretap evidence in this case was improperly 6 minimized and should have been suppressed; (3) the jury 7 instructions related to material, nonpublic information were 8 erroneous; (4) Goffer was punished for refusing to plead 9 guilty; (5) Goffer’s counsel was constitutionally deficient; 10 and (6) the forfeiture order was excessive. Although we 11 affirm Defendants’ convictions and sentences, we vacate and 12 remand the decision regarding Goffer’s forfeiture order. 13 Drimal challenges his conviction; however, he knowingly 14 (and very explicitly) waived his right to appeal his 15 conviction by entering an unconditional guilty plea

. Plea 16 Tr. 6, 12. “A defendant who pleads guilty unconditionally 17 . . . waives all challenges to prosecution except those 18 going to the court’s jurisdiction.” United States v. 19 Lasaga , 328 F.3d 61, 63 (2d Cir. 2003). Drimal’s challenges 20 to the constitutionality of the Securities Exchange Act of 21
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31934 and to the wiretap minimization procedures used by the 1 Government in this case are therefore dismissed. 1 2 Goffer contends that the district court erred in 3 instructing the jury regarding the definition of material, 4 nonpublic information. Goffer proffered proposed 5 instructions that he asserts would have better defined this 6 information by excluding “confirmation[s] of an event that 7 is fairly obvious to investors knowledgeable about the 8 company or the particular security at issue.” Goffer Brief 9 at 28. An identical challenge to identical jury 10 instructions was rejected in United States v. Contorinis , 11 692 F.3d 136, 141-45 (2d Cir. 2012). Compare id. at 142-44 12 with Tr. 2012-14. We therefore affirm the district court’s 13 jury instructions. 14 Goffer contends that he was improperly punished for 15 exercising his constitutional right to stand trial. See 16 Bordenkircher v. Hayes , 434 U.S. 357, 363 (1978). His 17 argument is premised on the district court’s decision not to 18 apply the acceptance of responsibility deduction pursuant to 19 U.S.S.G. § 3E1.1. “We maintain a distinction between 20

1 We note that, should we reach these arguments, we would reject both for substantially the same reasons they were rejected by the district court. 4increasing the severity of a sentence for a defendant’s 1 failure to cooperate and refusing to grant leniency.” 2 United States v. Whitten , 610 F.3d 168, 195 (2d Cir. 2010) 3 (internal quotation marks and emphasis omitted). Here, the 4 district court distinguished between the two and indicated 5 that Goffer was being denied a benefit, but was not being 6 punished. Sentencing Tr. 40. We find that Goffer was not 7 punished for standing trial. 8 Goffer contends that his counsel was ineffective under 9 the Sixth Amendment based on his failure to object to the 10 application of the leadership enhancement under U.S.S.G. 11 § 3B1.1. See Strickland v. Washington , 466 U.S. 668, 686, 12 694 (1984). Adhering to the Supreme Court’s preference that 13 such claims be litigated in the district court pursuant to 14 “a motion brought under [28 U.S.C.] § 2255,” Massaro v. 15 United States , 538 U.S. 500, 504 (2003), we decline to 16 address Goffer’s argument. See United States v. Morris , 350 17 F.3d 32, 39 (2d Cir. 2003). 2 18 Finally, Goffer contends that the district court erred 19 in calculating his forfeiture. In light of our decision in 20

2 We note that Goffer’s obvious leadership role in the conspiracy makes us dubious as to the likelihood that such a claim would pass either Strickland prong. 5Contorinis , 692 F.3d at 145-48, the Government concedes that 1 the forfeiture order should not account for gains realized 2 by Goffer’s employers (the Schottenfeld Group, LLC and the 3 Galleon Group). Insofar as Goffer’s forfeiture order 4 includes “funds never acquired by him or someone working in 5 concert with him,” this was error. Id. at 147. As in 6 Contorinis , “we leave to the district court to decide on 7 remand” how much of “appellant’s interest in salaries, 8 bonuses, dividends, or enhanced value of equity . . . can be 9 said to be money ‘acquired’ by the defendant through the 10 illegal transactions resulting in the forfeiture.” Id. at 11 148 n.4 (internal quotation marks and citation omitted). 12 Insofar as Goffer argues that the gains realized by 13 convicted co-conspirators should not be included in his 14 forfeiture order, this argument is rejected. “[A] court may 15 order a defendant to forfeit proceeds received by others who 16 participated jointly in the crime, provided the actions 17 generating those proceeds were reasonably foreseeable to the 18 defendant.” Id. at 147. Goffer passed his tips to co19 conspirators for the express purpose of allowing them to 20 make trades based on the inside information; their trades 21 were reasonably foreseeable. 22

6We have considered Defendants’ remaining arguments and 1 find them to be without merit. For the reasons stated 2 above, the judgments of conviction and sentences ordered by 3 the district court are **AFFIRMED;** Goffer’s forfeiture order 4 is **VACATED** and the case is **REMANDED** to enter an order 5 consistent with this opinion. 6
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10 11

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