U.S. v. Coriaty, Docket No. 01-1450.

• Decision Date: 21 June 2002
• Docket Number: Docket No. 01-1450.
• Citation: 300 F.3d 244
• Parties: UNITED STATES of America, Appellee, v. Ehab CORIATY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 244

300 F.3d 244

UNITED STATES of America, Appellee, v. Ehab CORIATY, Defendant-Appellant.

Docket No. 01-1450.

United States Court of Appeals, Second Circuit.

Argued: May 1, 2002.

Decided: June 21, 2002.

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Michael Salnick, West Palm Beach, FL, for Defendant-Appellant.

Jay K. Musoff, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York; Baruch Weiss, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Before MINER and SACK, Circuit Judges, and BERMAN, District Judge.^*

SACK, Circuit Judge:

The defendant, Ehab Coriaty, appeals from a judgment upon his conviction by a jury of one count of conspiracy, 18 U.S.C. § 371, and eight counts of wire fraud, 18 U.S.C. §§ 1343, 1346 & 2. The United States District Court for the Southern District of New York (Nicholas Tsoucalas, Judge¹) sentenced him principally to forty-four months' imprisonment and three years' supervised release, and ordered restitution in the amount of $844,098.35. Coriaty asserts that six aspects of the district court's judgment were erroneous: (1) its failure to dismiss Coriaty's conviction for conspiracy to commit wire fraud; (2) its determination of the loss amount for sentencing purposes; (3) its finding of a restitution amount allegedly in excess of the actual loss suffered by the victim; (4) its sentencing enhancement for Coriaty's more than minimal planning role; (5) its denial of a motion for a downward departure for extraordinary family circumstances; and (6) its failure to find that allegedly inflammatory comments by the prosecutor during the course of his summation denied Coriaty a fair trial. We conclude that none of the alleged errors warrants disturbing the district court's judgment and therefore affirm part of the judgment and dismiss the appeal with respect to the remainder of Coriaty's claims.

BACKGROUND

Facts

Coriaty was convicted of a complex scheme to defraud his employer, Nicole Durr, of funds she invested through Advest, a securities brokerage firm and bank. We set forth only the facts relevant to this appeal.

On October 28, 1997, Durr invested $1 million in an Advest account. Coriaty, as vice-president and chief executive officer of Durr's company, Dur Music, possessed the authority to wire money from this account "to cover operational expenses and to pay employee salaries." Presentence Investigation Report ("PSR") at 8. On February 19, 1998, Durr withdrew $100,000 from the Advest account. Apparently as a partial result of trading on the account, $914,098.35,² rather than $900,000 (the net result of the $1 million Durr placed in the Advest account less the $100,000 she withdrew), remained in the account at the beginning of the following month, March 1998. At about the same time, Durr also authorized Coriaty to manage the investment of an additional $700,000 of her money. These funds were eventually placed in an account at a firm now known as FFP Securities. Coriaty had discretion with respect to the management of the investment of funds in the FFP account, but Durr hired a professional financial consultant named Donald Warner to invest the funds in the Advest account.

On March 3, 1998, without Durr's knowledge or consent, Coriaty instructed Warner to liquidate the Advest account and to transfer the resulting $914,098.35 to Durr's FFP account. The transfer was completed by May 28, 1998. Meanwhile, between March 16 and April 23, 1998, Coriaty transferred a total of $706,000 from the FFP account to a third account held at Wall Street Discount Brokers under the name of Roman Capital, a company jointly owned by Coriaty and one Howard Rosen, Coriaty's co-conspirator.

Of the $706,000 transferred to the Roman Capital account, Coriaty sent $229,000 to accounts of his own; Rosen moved $219,000 into Rosen's own accounts. The remaining $258,000 in the Roman Capital account was lost through what the government terms "wildly unsuccessful" stock market investments. Appellee's Br. at 9. In June and September 1998, Coriaty returned a total of $70,000 to Durr from his personal funds, apparently as part of his attempt to hide the other transactions from Durr.

Of the $914,098.35 transferred from the Advest account, approximately $208,000 remained in the FFP account mingled with the $700,000 that Durr had originally entrusted to Coriaty in the FFP account. While the fraud was being perpetrated, the Coriaty-managed FFP account suffered a loss of more than $250,000³ as a consequence of further "wildly unsuccessful" securities trading. During the course of the fraud, Coriaty was managing trading on the funds in the FFP account. Trades on this account during the perpetration of the fraud resulted in losses of more than $250,000. In other words, the amount lost from the FFP account due to trading exceeded the $208,000 that remained in the FFP account from the funds improperly transferred from the Advest account after accounting for the transfers to the Roman Capital account. At the fraud's conclusion, therefore, Durr had nothing in her Advest account and, in her FFP account, an amount that was significantly less than the $700,000 that she had initially placed there.⁴

Coriaty was indicted on, inter alia, a charge of conspiracy to commit securities fraud and wire fraud. As the objects of the conspiracy, the government alleged both violations of the securities laws and wire fraud. Among the overt acts charged was the transfer of the $914,098.35 from the Advest account to the FFP account effectively controlled by Coriaty.⁵ The indictment also included one securities fraud count and sixteen counts of wire fraud.

Proceedings in the District Court

After a trial that began on March 12, 2001 and concluded on March 21, 2001, a jury convicted Coriaty on the conspiracy charge, the securities fraud charge, and eight counts of wire fraud involving the transfers from the Roman Capital account to his personal accounts. On a special verdict form, the jury found Coriaty guilty of both of the conspiracy's objects: securities fraud and wire fraud.

In July 2001, Coriaty made a motion for a new trial pursuant to Fed.R.Crim.P. 33, which the district court construed as a motion for post-verdict acquittal pursuant to Fed.R.Crim.P. 29(c). The court thereupon dismissed the securities fraud conviction because of the absence of evidence of any misrepresentation involving the nature or value of a security. United States v. Coriaty, 2001 WL 1910843, at 8 (S.D.N.Y. July 16, 2001). The district court nevertheless found "sufficient evidence to sustain the charge of conspiracy to commit wire fraud." Id. at *6 n. 2.

On August 20, 2001, the district court sentenced Coriaty to forty-four months' imprisonment, three years' supervised release, a fine of $7,500, and a special mandatory assessment of $900. The court also ordered the defendant to pay $844,098.35 in restitution. This appeal followed.

DISCUSSION

I. Standards of Review

We review questions of law de novo. United States v. Grant, 235 F.3d 95, 99 (2d Cir.2000). On sentencing issues, we "accept the findings of fact of the district court unless they are clearly erroneous, and will not overturn the court's application of the [United States Sentencing] Guidelines to the facts before it unless we conclude that there has been an abuse of discretion." United States v. Deming, 269 F.3d 107, 109 (2d Cir.2001) (per curiam) (internal citation and punctuation marks omitted); see also 18 U.S.C. § 3742(e) (permitting appellate courts to vacate a sentencing finding that is, inter alia, "in violation of law[,] ... imposed as a result of an incorrect application of the sentencing guidelines[, or] outside the applicable guideline range, and ... unreasonable"). A district court's factual findings on loss are similarly reviewed for clear error and its legal conclusions de novo. United States v. Carboni, 204 F.3d 39, 46 (2d Cir.2000). Finally, "[a] sentencing court's order of restitution is reviewed for abuse of discretion." United States v. Berardini, 112 F.3d 606, 609 (2d Cir.1997).

II. The Conspiracy Charge

Coriaty first argues that the district court erred in failing to dismiss his conspiracy conviction after it vacated his securities fraud conviction for insufficient evidence. Coriaty, 2001 WL 1910843 at *1. Coriaty was indicted for conspiracy "to commit wire fraud and securities fraud," but was convicted only of conspiracy to commit wire fraud. While the indictment used the conjunctive, the jury charge described the "conspiracy" as one "to commit wire fraud or securities fraud." Coriaty contends that either the indictment was constructively amended or he was convicted of a crime not alleged in the indictment in violation of the Fifth Amendment. We disagree.

To be sure, "after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Nevertheless, "the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime" provided that "each offense whose elements are fully set out in an indictment can independently sustain a conviction." United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). Hence, "the lack of sufficient evidence to support one of the objects of a multi-object conspiracy [does] not vitiate the conspiracy conviction, where there was sufficient evidence to support the other object." United States v. Pascarella, 84 F.3d 61, 71 (2d Cir.1996); see also Griffin v. United States, 502 U.S. 46, 47-48, 60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (affirming a conviction under circumstances similar to those of the case at bar); Miller, 471 U.S. at 136, 105 S.Ct. 1811 (noting that "[a] part of the indictment unnecessary to and independent of the...