United States v. Bennett, 02-1379.
| Decision Date | 18 September 2003 |
| Docket Number | No. 02-1379.,02-1379. |
| Parties | UNITED STATES OF AMERICA, <I>Appellee,</I> v. PATRICK BENNETT, <I>Defendant-Appellant,</I> MICHAEL A. BENNETT, CHARLES T. GENOVESE, GARY PEIFFER, <I>Defendants.</I> |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from a judgment of the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.
GEORGE W. GALGANO (Kieran J. Sullivan, of counsel), Galgano & Sullivan, White Plains, NY., APPEARING FOR APPELLANT.
ROBERTO FINZI, Assistant United States Attorney (Richard D. Owens and Gary Stein, Assistant United States Attorneys, of counsel, James B. Comey, United States Attorney for the Southern District of New York, on the brief), United States Attorney's Office, Southern District of New York, New York, NY., APPEARING FOR APPELLEE.
PRESENT: ELLSWORTH VAN GRAAFEILAND, JOSEPH M. MCLAUGHLIN, and JOSÉ A. CABRANES, Circuit Judges.
Defendant Patrick Bennett appeals from a judgment of conviction entered in the District Court on June 6, 2002 on remand, after his initial conviction was affirmed in part, and vacated and remanded in part, by this Court in two separate opinions filed on May 31, 2001. In a summary order, we affirmed Bennett's conviction, United States v. Bennett, No. 00-1330 (2d Cir. May 31, 2001), but in a published opinion, we vacated and remanded for resentencing, United States v. Bennett, 252 F.3d 559 (2d Cir. 2001). In this appeal, Bennett challenges his revised sentence of 22 years' imprisonment and two forfeiture orders in the amount of $109,088,899.11. Bennett also seeks to renew his challenge to his underlying conviction.
After two jury trials, Bennett was convicted of numerous counts relating to his interference with an SEC investigation, his use of inflated income statements to borrow money from investors and banks, and his attempts to hide cash by moving it into unaudited accounts. Neither jury could reach a verdict on several additional counts of mail fraud and securities fraud arising out of an alleged pyramid scheme based on the sale of income from photocopier leases that did not exist.
As a result of the convictions obtained at his second trial, Bennett was sentenced to 30-years' imprisonment, and was ordered to forfeit $109,088,889.11.1 The 30-year sentence consisted of 20 years' imprisonment, plus an upward departure of 10 years based on the refusal of Bennett's wife to surrender certain properties allegedly purchased with the proceeds of Bennett's criminal activity. On appeal, we affirmed Bennett's convictions, but vacated his sentence on the ground that the District Court improperly punished Bennett because his wife would "not relinquish her statutory right to contest the forfeiture of properties in her name." Bennett, 252 F.3d at 564. We instructed the District Court as follows:
On remand, Judge Martin will be entitled to consider whether, apart from Mrs. Bennett's refusal to surrender the properties, the Defendant's own acts of concealment or any other appropriate factors warrant a departure above the twenty-year sentence he stated would have been imposed had the properties been surrendered.
At resentencing, the District Court determined that a ten-year upward departure was not warranted "knowing what [the Court's] reasoning was at the time, and knowing [that] that reason has been held inappropriate by the Second Circuit." The Court instead imposed a twoyear upward departure because "Mr. Bennett was responsible for transferring assets so that they would be very difficult [for] creditors to reach." The District Court thus imposed a total sentence of 22-years' imprisonment.
On appeal, Bennett challenges his revised sentence on the following grounds: (1) that the District Court improperly refused to resentence him de novo; (2) that the District Court failed to give reasonable notice of its intention to depart upwardly ; (3) that the District Court's written judgment of conviction impermissibly varied from the oral pronouncement of sentence; and (4) that the District Court's two forfeiture orders were improper.2 Bennett also makes a renewed challenge to his underlying conviction on grounds that were already rejected by this Court.
Bennett first challenges the District Court's refusal to resentence him de novo and, consequently, its failure to (i) apply a more recent version of the Sentencing Guidelines or (ii) consider "the unreliability of the prior facts" relied upon by the Court at his first sentencing. Def.'s Br. at 44. We reject this argument because we believe it is clear, in reading the decision of our Court in Bennett's first appeal, that the scope of the remand was intended to be limited to whether an upward departure was warranted on grounds other than those relied upon by the District Court. The panel never stated that Bennett should be resentenced de novo, and in its only discussion of the impending remand, it specified that "[o]n remand, Judge Martin will be entitled to consider whether, apart from Mrs. Bennett's refusal to surrender the properties, the Defendant's own acts . . . warrant a departure above the twenty-year sentence." Bennett, 252 F.3d at 565. Reading the opinion in context, it is clear to us that the panel took issue only with the District Court's upward departure, and there is no reason to believe that the panel intended for the District Court to reopen any aspect of the sentencing other than the upward-departure issue. See United States v. Quintieri, 306 F.3d 1217, 1227 (2d Cir. 2002) . We find no error in the District Court's refusal to sentence the defendant de novo or to reopen needlessly the loss calculation of the District Court at Bennett's first sentencing.
Bennett also challenges "the failure of the District Court to give reasonable notice of its intention to upwardly depart." Def.'s Br. at 52. We agree with the Government that this argument is entirely frivolous. First, and most notably, the entire purpose of the resentencing procedure—as mandated by the Court of Appeals—was to consider whether an upward departure was appropriate. See Bennett, 252 F.3d at 565. Second, at the parties' first conference following the remand, before the resentencing, the Government stated on the record its view that "the only
issue for the court on remand" was to "evaluate and reconsider what if any upward departure [would be] appropriate under the range of acceptable factors." [A56] Finally, in a letter the Government submitted to the District Court prior to the resentencing, the Government expressly argued for a departure on the same grounds the court ultimately adopted. Under these circumstances, it cannot be said that the defendant was denied the "opportunity to assure the accurate presentation of reliable sentencing information to the district court." United States v. Sisti, 91 F.3d 305, 310 (2d Cir. 1996) (internal quotation marks and citation omitted).
In addition, Bennett asserts that "the ambiguity of the written judgment of conviction from the oral pronouncement of sentence violate[d] [his] right to due process." Def.'s Br. at 65. Although the written judgment could perhaps be more precise, we reject defendant's claim because the written judgment does not differ in any material way from the oral pronouncement of sentence. At Bennett's original sentencing hearing, the District Court explained that, instead of applying an offense level of 41 based on the money laundering guidelines, it would use an offense level of 36, based on the fraud guidelines. Defendant takes issue with the written judgment's characterization of the relevant offense level as 41, with a downward departure...
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