UNITED STATES OF AMERICA, Appellee , v. RAVIV LAOR, Defendant-Appellant. , UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, No. 05-5048-cr, March 13, 2008
UNITED STATES OF AMERICA, Appellee , v. RAVIV LAOR, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 13, 2008
Rulings by summary order do not have precedential effect. Citation to summary orders filed after January 1, 2007, is permitted and is governed by this court's Local Rule 32.1 and Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a summary order, in each paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or be accompanied by the notation: "(summary order)." A party citing a summary order must serve a copy of that summary order together with the paper in which the summary order is cited on any party not represented by counsel unless the summary order is available in an electronic database which is publicly accessible without payment of fee (such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such a database, the citation must include reference to that database and the docket number of the case in which the order was entered.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 13 th day of March, Two thousand eight.
JOSи A. CABRANES,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
Circuit Judges .
═ APPEARING FOR APPELLANT: MARY GIBBONS, Toms River, NJ.
APPEARING FOR APPELLEE: PERRY CARBONE, Assistant United States Attorney (Michael J. Garcia, United States Attorney, Cathy Seibel, Deputy Assistant United States Attorney, on the brief ), United States Attorney's Office for the Southern District of New York, New York, NY.
Appeal from a judgment entered in the United States District Court for the Southern District of New York (Colleen McMahon, Judge ), convicting defendant after a jury trial of of five counts of mail fraud in violation of 18 U.S.C.╖ 1341, four counts of wire fraud in violation of 18 U.S.C. ╖ 1343, one count of corruptly impeding and obstructing the due administration of the tax laws in violation of 26 U.S.C. ╖ 7212, and four counts of failure to file personal and corporate tax returns in violation of 26 U.S .C. ╖ 7203.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED .
Defendant-appellant Raviv Laor ("defendant" or "Laor") appeals the judgment of conviction entered on August 23, 2005 following a four-week jury trial. He was sentenced to an aggregate prison term of 65 months and supervised release of 4 years. Restitution in the amount of $942,981.70, and a special assessment of $1,100 were ordered.
Defendant appeals on a number of grounds. He alleges that the District Court committed several errors, including: not properly instructing the jury as to the nature of the scheme to defraud and constructively amending the indictment; not properly instructing the jury as to 26 U.S.C. ╖ 7212 and constructively amending the indictment; denying defendant's motion to dismiss pursuant to Fed. R. Crim. P. 29 based on the Government's failure to prove the elements of the crime as to Counts Two through Six, Ten, Eleven, and Twenty; allowing the Government to introduce evidence of financing agreements not involving IBM Credit; instructing the jury that the witness Potenza was an accomplice rather than a "cooperating" witness; denying defendant's request for a bill of particulars to the extent requested by defendant; denying defendant's motion claiming misjoinder and requesting severance; quashing defendant's subpoena to IBM Credit seeking materials related to IBM Credit's efforts to recover items after default on lease agreements; failing to hold that the Government did not meet its obligations under Brady v. Maryland , 373 U.S. 83 (1963); and imposing a sentence that violated the Ex Post Facto Clause of the United States Constitution.
With respect to Laor's claim that the jury charge on his scheme to defraud constructively amended the indictment, we find that, even had he timely objected to the instruction, it did not alter an essential element of the crime to the extent that we cannot be certain that he "was convicted of conduct that was the subject of the grand jury's indictment." United States v. Frank , 156 F.3d 332, 337 (2d Cir. 1998). "Because proof at trial need not, indeed cannot, be a precise replica of the charges contained in an indictment, this court has consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core criminality to be proven at trial." United States v. Heiman , 705 F.2d 662, 666 (2d Cir. 1983) (internal quotation marks omitted). Laor was given notice that the Government would attempt to prove that he engaged in a fraudulent scheme in which he offered unsecured general business loans to end users while representing to IBM Credit that he was extending secured equipment leases.
With respect to Laor's claim that the jury charge on 26 U.S.C. ╖ 7212 constructively amended the indictment, we conclude that the allegations he points to, while not expressly specified in the indictment, "involved additional activities of the same character as those specifically charged in the indictment." United States v. Zingaro , 858 F.2d 94, 103 (2d Cir. 1988). Moreover, the District Court's definition of "corruptly" in the latter jury charge was not error, because it neither failed to inform adequately the jury of the law nor misled the jury as to the correct legal standard. United States v. Doyle , 130 F.3d 523, 535 (2d Cir. 1997). The District Court informed the jury that the Government would have to prove more than that Laor obstructed or impeded the due administration of the tax laws≈that it would have to demonstrate corrupt action.
We have considered all of Laor's remaining arguments on appeal and find them to be without merit.
For the reasons stated above, the judgment of the District Court is AFFIRMED.
FOR THE COURT,
Catherine O'Hagan Wolfe, Clerk