14-152(L)

United States v. Rutigliano, Lesniewski, Baran

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

4 on the 22 day of June, two thousand fifteen. nd

5

6 PRESENT: DENNIS JACOBS,

7 DENNY CHIN,

8 Circuit Judges,

9 ELIZABETH A. WOLFORD,

10 District Judge.*

11

12 - - - - - - - - - - - - - - - - - - - -X

13 UNITED STATES OF AMERICA,

14 Appellee,

15

16 -v.- 14-152(L), 14-759, 

17 14-1339

18 JOSEPH RUTIGLIANO, PETER J.

19 LESNIEWSKI, MARIE BARAN, 

20 Defendants-Appellants.**

21 - - - - - - - - - - - - - - - - - - - -X

22

 The Honorable Elizabeth A. Wolford, of the United *

States District Court for the Western District of New York,

sitting by designation.

 The Clerk of Court is respectfully directed to amend **

the official caption as set forth above.
1 FOR APPELLANT RUTIGLIANO: JOSEPH W. RYAN, JR., Melville,

2 New York.

3

4 FOR APPELLANT LESNIEWSKI: JOHN D. CLINE, San Francisco,

5 California.

6

7 FOR APPELLANT BARAN: ANNE J. D’ELIA, Kew Gardens, New

8 York.

9

10 FOR APPELLEE: DANIEL B. TEHRANI (with Nicole

11 Friedlander and Michael A. Levy,

12 on the brief), for Preet

13 Bharara, United States Attorney

14 for the Southern District of New

15 York.

16

17 Appeal from judgments of the United States District

18 Court for the Southern District of New York (Marrero, J.).

19

20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

21 AND DECREED that the judgments of the district court be

22 AFFIRMED. 

23

24 Joseph Rutigliano, Peter J. Lesniewski, and Marie Baran

25 appeal from judgments of conviction entered, following a

26 jury trial, in the United States District Court for the

27 Southern District of New York (Marrero, J.). A separate

28 opinion issued simultaneously with this summary order

29 decides challenges premised on venue, the statute of

30 limitations, and instructions given to the jury. We assume

31 the parties’ familiarity with the underlying facts, the

32 procedural history, and the issues presented for review. 

33

34 The defendants were convicted of (variously) conspiracy

35 to commit mail fraud, wire fraud, and health care fraud, as

36 well as substantive counts of these offenses, and making

37 false statements, in this case of a decades-long scheme to

38 defraud the United States Railroad Retirement Board (“RRB”)

39 into awarding fraudulent disability annuity payments to Long

40 Island Railroad (“LIRR”) retirees.

41

42 A. Evidentiary Challenges

43 Defendants raise numerous evidentiary challenges. 

44 Specifically they argue that the court abused its discretion

45 by: (i) limiting the testimony of Lesniewski’s proposed

46 expert, Dr. Julian Freeman; (ii) allowing the government’s

2
1 expert to testify about Lesniewski’s diagnosis of Rutigliano

2 and to provide his opinion that if Rutigliano suffered

3 disabling conditions as diagnosed, he would not have been

4 able to play golf; (iii) precluding Lesniewski from offering

5 statements he argued were admissible pursuant to Fed. R.

6 Evid. 106; (iv) permitting the government to introduce

7 charts comparing disability applications prepared by

8 Rutigliano for himself and others, and charts showing the

9 disparity in disability rates at the LIRR and Metro-North

10 Railroad; (v) permitting evidence of Rutigliano’s post11 retirement golfing; and (vi) admitting evidence that

12 Rutigliano failed to report his “consulting” income. 

13

14 We review the district court’s evidentiary rulings for

15 abuse of discretion, and find none. See United States v.

16 Persico, 645 F.3d 85, 99 (2d Cir. 2011).

17

18 1. Limitations on Lesniewski’s Expert’s Testimony

19 The district court’s limitations on Dr. Freeman’s

20 testimony were a proper exercise of its gatekeeping

21 function, Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d

22 256, 266 (2d Cir. 2002), and certainly not an abuse of

23 discretion, United States v. Cruz, 363 F.3d 187, 192 (2d

24 Cir. 2004). See United States v. Dupre, 462 F.3d 131, 137

25 (2d Cir. 2006) (“[T]he admission of expert testimony is not

26 an abuse of discretion unless it is manifestly erroneous.”

27 (internal quotation mark omitted)). And the court properly

28 excluded testimony that would have required or permitted Dr.

29 Freeman to opine on legal questions. See United States v.

30 Bilzerian, 926 F.2d 1285, 1295 (2d Cir. 1991).

31

32 2. The Government’s Expert Witness

33 The district court did not abuse discretion in

34 admitting the government’s expert testimony, or in denying a

35 separate hearing pursuant to Daubert v. Merrell Dow Pharms.,

36 Inc., 509 U.S. 579 (1993). See United States v. Williams,

37 506 F.3d 151, 161-62 (2d Cir. 2007) (concluding court

38 engaged in relevant inquiry in admitting evidence and

39 decision not to hold separate, formal Daubert hearing was

40 not an abuse of discretion). As the district court

41 observed, the fact that the government’s expert did not

42 examine Rutigliano goes only to the weight the expert’s

43 testimony should be afforded, not to its admissibility. See

44 Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.

45 1996) (per curiam) (“[C]ontentions that the [expert’s]

46 assumptions are unfounded go to the weight, not the

3
1 admissibility, of the testimony” (internal quotation marks

2 omitted)).

3

4 3. The Rule of Completeness Challenge

5 The district court committed no abuse of discretion in

6 ruling that portions of Lesniewski’s prior statements he

7 sought to introduce, “as offered by him, [were] inadmissible

8 hearsay.” United States v. Jackson, 180 F.3d 55, 73 (2d

9 Cir. 1999). “[A]n omitted portion of a statement must be

10 placed in evidence if necessary to explain the admitted

11 portion, to place the admitted portion in context, to avoid

12 misleading the jury, or to ensure fair and impartial

13 understanding of the admitted portion.” Id. (internal

14 quotation marks omitted). The statements at issue were not

15 necessary “to avoid misleading the trier of fact.” United

16 States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). The

17 exclusion of the disputed statements as post-hoc

18 explanations for Lesniewski’s conduct was therefore a

19 permissible exercise of discretion. See United States v.

20 Kozeny, 667 F.3d 122, 139 (2d Cir. 2011) (“[T]he rule of

21 completeness does not require that the entire memo be

22 admitted because [after-the-fact] legal analysis,

23 recollection and understandings are not relevant.”).

24

25 4. Rutigliano’s Challenge to the Government’s Charts

26 The district court allowed the government to introduce

27 charts comparing disability rates at the LIRR and Metro28 North, and charts showing similarities in disability

29 applications prepared by Rutigliano. “This court has long

30 approved the use of charts in complex trials.” United

31 States v. Casamento, 887 F.2d 1141, 1151 (2d Cir. 1989); see

32 also United States v. Pinto, 850 F.2d 927, 935-36 (2d Cir.

33 1988) (approving government’s use of summary charts at

34 trial). And the charts at issue cleared the low bar for

35 relevance. See United States v. Al-Moayad, 545 F.3d 139,

36 176 (2d Cir. 2008). Disparities between disability rates at

37 the two railroads and the cookie-cutter nature of the

38 disability claims both tended to support the government’s

39 theory at trial. See United States v. Abu-Jihaad, 630 F.3d

40 102, 132 (2d Cir. 2010). As the district court observed,

41 the charts were “straightforward compilation[s]” based on

42 records provided to the defense. Trial Tr. at 1503, United

43 States v. Rutigliano, No. 11-cr-1091, (S.D.N.Y. 2013).

44

4
1 5. The Golf Evidence

2 The district court admitted evidence that Rutigliano

3 routinely played golf after his retirement, when he was

4 supposedly permanently disabled. Rutigliano argues that

5 this evidence was substantially more prejudicial than

6 probative. Fed. R. Evid. 403. The district court committed

7 no abuse of discretion: The golf evidence was highly

8 probative of Rutigliano’s fraud, and the court could

9 reasonably have concluded that it would not tend to “lure

10 the factfinder into declaring guilt on a ground different

11 from proof specific to the offense charged.” United States

12 v. Massino, 546 F.3d 123, 132 (2d Cir. 2008) (per curiam)

13 (internal quotation mark omitted); see also United States v.

14 Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995) (“Generally

15 speaking, any proof highly probative of guilt is prejudicial

16 to the interests of that defendant.”).

17

18 6. Rutigliano’s “Consulting” Income

19 The district court admitted evidence that Rutigliano

20 failed to report income from his “consulting” services. The

21 government argued that this evidence was admissible as

22 “inextricably intertwined” with the evidence regarding the

23 charged offense. Decision and Order, United States v.

24 Lesniewski, 11-cr-01091, Dkt. No. 462, at 19 (S.D.N.Y. July

25 12, 2013) (quoting United States v. Quinones, 511 F.3d 289,

26 309 (2d Cir. 2007) (internal quotation marks omitted)). The

27 court agreed, explaining that Rutigliano’s failure to report

28 his income “helps complete the story” of his fraud “because

29 any record (or lack thereof) of [his consulting] income is

30 arguably intertwined with his claimed ‘total and permanent’

31 disability and his statements that he had not in fact

32 worked.” Id. at 19-20. The court added that the evidence

33 was admissible as probative of “intent, plan, knowledge, and

34 absence of mistake or accident.” Id. at 21. Finally, the

35 court rejected Rutigliano’s Rule 403 challenge to the

36 evidence “[g]iven the high degree of relevance of the

37 material in question.” Id. The court’s reasoning supports

38 its exercise of discretion.

39

40 B. The Bruton Challenge

41 Rutigliano asserts that the court violated his rights

42 under United States v. Bruton, 391 U.S. 123 (1968), by

43 admitting an inculpatory statement made by Lesniewski to law

44 enforcement agents. “We review alleged violations of the

45 Confrontation Clause de novo, subject to harmless error

46 analysis.” United States v. Jass, 569 F.3d 47, 55 (2d Cir.

47 2009) (internal quotation marks and alterations omitted).

5
1

2 Rutigliano concedes Lesniewski’s inculpatory statement

3 made no mention of him. Because the “jury would have had to

4 rely on other trial evidence” (rather than Lesniewski’s

5 statement by itself) to connect it to Rutigliano, there was

6 no Bruton violation. Id. at 62; see also United States v.

7 Lee, 549 F.3d 84, 97 n.1 (2d Cir. 2008).1

8

9 C. The Joinder Challenge

10 Rutigliano argues that his motion for severance should

11 have been granted because there was no temporal link or

12 common plan among the codefendants. He cites as prejudice

13 his subjection to a lengthy trial rather than the short,

14 straightforward one that (he speculates) he would have had

15 absent joinder. “We review the propriety of joinder de novo

16 . . . and where joinder should not have been permitted, a

17 conviction must be reversed unless failure to sever was

18 harmless error.” United States v. Rittweger, 524 F.3d 171,

19 177 (2d Cir. 2008) (internal quotation marks omitted).

20

21 Federal Rule of Criminal Procedure 8(b) allows joinder

22 of defendants “if they are alleged to have participated in

23 the same act or transaction, or in the same series of acts

24 or transactions, constituting an offense or offenses.” Fed.

25 R. Crim. P. 8(b). “We have interpreted the ‘same series of

26 acts or transactions’ language of Rule 8(b) to mean that

27 joinder is proper where two or more persons’ criminal acts

28 are unified by some substantial identity of facts or

29 participants, or arise out of a common plan or scheme.”

30 Rittweger, 524 F.3d 177 (some internal quotation marks

31 omitted). “[W]e also apply a commonsense rule to decide

32 whether, in light of the factual overlap among charges,

33 joint proceedings would produce sufficient efficiencies such

34 that joinder is proper notwithstanding the possibility of

35 prejudice.” Id. (internal quotation marks omitted). This

36 standard was clearly satisfied here.

37

 To the extent Rutigliano argues that the admission of 1

Lesniewski’s statement required severance, this is not so. 

See United States v. Yousef, 327 F.3d 56, 150 (2d Cir. 2003)

(finding “admission of the redacted statement did not

violate the Bruton doctrine” and affirming denial of

severance).

6
1 D. The Sufficiency of the Evidence

2 Rutigliano challenges the sufficiency of evidence that

3 he conspired with: (i) Lesniewski to create his fraudulent

4 claim for benefits; (ii) James Maher or Christopher

5 Parlante, retired LIRR employees who testified for the

6 prosecution, to falsify their claims; or (iii) Maher or

7 Parlante to submit false re-certifications of their claimed

8 disabilities. Rutigliano cannot sustain his “heavy burden”

9 because, viewing the evidence in the light most favorable to

10 the government, Kozeny, 667 F.3d at 139-40, it was

11 sufficient for a rational jury to conclude that there was a

12 conspiracy to defraud the RRB, and that Rutigliano

13 participated in the conspiracy both as a claimant and as a

14 “facilitator” of other employees’ fraudulent claims. To the

15 extent Rutigliano argues that there was no evidence of

16 express agreements among the codefendants, no such proof is

17 required. See United States v. Amiel, 95 F.3d 135, 144 (2d

18 Cir. 1996).

19

20 E. The Sentencing Challenges

21 Rutigliano argues that the district court erred in

22 denying his request for a hearing pursuant to United States

23 v. Fatico, 603 F.2d 1053 (2d Cir. 1979), to challenge the

24 loss attributable to him, which impacted his term of

25 incarceration and the restitution imposed. He also

26 challenges the procedural reasonableness of his sentence. 

27 Baran challenges the loss attributed to her, and the

28 substantive reasonableness of her sentence.

29

30 There is no per se right to a Fatico hearing, and trial

31 courts enjoy broad discretion in determining what procedures

32 to employ at sentencing. See United States v. Prescott, 920

33 F.2d 139, 144 (2d Cir. 1990). We review the sentences for

34 reasonableness, under a deferential abuse-of-discretion

35 standard. United States v. Gilliard, 671 F.3d 255, 258 (2d

36 Cir. 2012).

37

38 After a conference, the court properly denied

39 Rutigliano’s request for a Fatico hearing. The court

40 concluded that Rutigliano was “raising issues litigated at

41 the trial and some of them determined by the court in

42 preparation for the trial, and [Rutigliano was] asking

43 essentially for [the court] to have another trial on some of

44 these issues, and [the court was] not going to do that.” 

45 Gov’t Supplemental App. at 37-37.

46

47

7
1 The Sentencing Guidelines base the offense level in

2 part on the amount of loss caused by the offense; and loss

3 is defined generally as “the greater of actual loss or

4 intended loss.” U.S.S.G. § 2B1.1(b)(1) & cmt. n.3(A). As

5 recognized by the district court, a sentencing judge need

6 only make a “reasonable estimate” in calculating the loss

7 amount. Id. cmt. n.3(c). And, the loss need only be

8 determined by a preponderance of the evidence. See United

9 States v. Norman, 776 F.3d 67, 76-77 (2d Cir. 2015).

10

11 The court committed no procedural error in determining

12 the loss attributable to the defendants. Cf. United States

13 v. Bryant, 128 F.3d 74, 76 (2d Cir. 1997) (“[I]t is

14 permissible for the sentencing court, in calculating a

15 defendant’s offense level, to estimate the loss resulting

16 from his offenses by extrapolating the average amount of

17 loss from known data and applying that average to

18 transactions where the exact amount of loss is unknown.”).

19

20 Rutigliano’s challenge to the restitution order--based

21 on a finding of actual loss--is also without merit, as it is

22 premised on his erroneous theory that the RRB made

23 independent determinations with respect to disability

24 applications.

25

26 Baran’s challenge to the substantive reasonableness of

27 her 60-month sentence is without merit. The sentence was 48

28 months below the low-end of the Guidelines and cannot be

29 said to be “shockingly high” or “otherwise unsupportable as

30 a matter of law.” United States v. Dorvee, 616 F.3d 174,

31 183 (2d Cir. 2010) (internal quotation marks omitted).

32

33 F. Ineffective Assistance of Counsel

34 Baran argues that she is entitled to a new trial

35 because she was afforded constitutionally ineffective

36 assistance of counsel. As in most cases, “a motion brought

37 under [28 U.S.C.] § 2255 is preferable to direct appeal for

38 deciding [Baran’s] claims of ineffective assistance.” 

39 Massaro v. United States, 538 U.S. 500, 504 (2003); see also

40 United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004)

41 (stating district court “best suited” to developing facts

42 necessary to determining adequacy of representation

43 (internal quotation marks omitted)).

44

8
1 * * *

2

3 For the foregoing reasons and for those stated in the

4 opinion issued simultaneously with this summary order, and

5 finding no merit in appellants’ other arguments, we hereby

6 AFFIRM the judgments of the district court.

7

8 FOR THE COURT:

9 CATHERINE O’HAGAN WOLFE, CLERK

10

11

9