United States v. Munshani

1

UNITED STATES OF AMERICA v. SURESH MUNSHANI, Defendant.

No. 22-cr-00215 (JSR)

United States District Court, S.D. New York

August 21, 2023

MEMORANDUM

JED S RAKOFF, U.S.D.J.

On July 14, 2023, defendant, Suresh Munshani, submitted an application for bail pending appeal. See Def. Mot for Bail Pending Appeal ("Def. Mot."), Dkt No. 92. After considering the parties' briefing, the Court denied bail pending appeal by "bottom-line order" dated July 21, 2023. This Memorandum sets forth the reasons for the Court's bottom-line order.

To obtain bail pending appeal, the defendant must show:

(1) he [i]s not likely to flee or pose a danger to the community; (2) his appeal [i]s not for the purpose of delay (3) his appeal raise[s] a substantial questions of law or fact likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence less than the total of the time already served plus the expected duration of the appeal process; and (4) there [a]re 'exceptional circumstances' warranting release.

United States v. Zillgitt, 286 F.3d 128, 132-33 (2d Cir. 2002).^[1] Here, the dispute centers on the third prong: whether defendant's "appeal . . . raises substantial questions of law or fact likely to result in reversal [or] an order for a new trial." 18 U.S.C. § 3143(b)(1)(B). The Second Circuit has explained, "a substantial question is one of more substance than would be necessary to finding that it was not frivolous. It is a close question or one that very well could be decided the other way." United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) . If a question is substantial, then the Court "must . . . consider whether the question is so integral to the merits of the conviction on which [the] defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Id.

Defendant seeks to raise five arguments on appeal: (1) there was insufficient evidence adduced at trial to sustain his convictions beyond a reasonable doubt; (2) the Court erroneously did not give a "multiple conspiracies" instruction to the jury; (3) the Court improperly excluded his co-defendant's guilty plea allocution; (4) there was a "merger problem" with the wire fraud and money laundering convictions; and (5) the prosecution's rebuttal made improper arguments and comments. The Court addresses each argument in turn, finding that none raises a substantial question likely to result in a new trial or reversal on appeal.

1. Sufficiency of the Evidence

Defendant seeks to argue on appeal that there was insufficient evidence to convict him on the two conspiracy counts of which he was convicted because there was no evidence of any other coconspirator apart from him and the evidence of defendant's involvement in the conspiracy was, at best, thin, sporadic, and ad hoc. See Def. Mot. at 4-6.

The Court already rejected the argument that there was insufficient evidence on the conspiracy counts at the Rule 29 stage. See 2/13/23 Trial Tr. at 492:10-20, 535:13-14. Nothing has changed since then. The record included time-stamped email exchanges, travel records, bank records, cell phone location data, and text messages that showed defendant knowingly and intentionally entered into an agreement to commit wire fraud and money laundering. As the Government details in its brief on this motion, there was more than sufficient evidence on which a reasonable jury could convict defendant of the conspiracy counts. See Gov't Opp. to Mot. for Bail Pending Appeal at 3-7, Dkt. No. 93. The nature and amount of evidence in the record renders this not a close question on appeal.

Further, regardless of whether it is a close question, it is a challenge that is unlikely to result in a reversal or a new trial. "A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Wilson, 503 F.3d 195, 197 (2d Cir.2007).

The Second Circuit will "sustain the jury's verdict if, crediting every inference that could be drawn in the government's favor and viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Raniere, 55 F.4th 354, 364 (2d Cir. 2022). The defendant will only be acquitted "if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Id.

A rational jury could, and did, draw inferences from the evidence in the record to conclude that defendant knowingly, unlawfully, and intentionally entered into a conspiracy to commit wire fraud and money laundering, by receiving, from his brother, money, that was stolen from Protegrity, in a TD Bank Account for CBL Associates, that he controlled, and then sending that tainted money (minus his cut) back to his brother to conceal its criminal origins. Defendant is thus unlikely to meet the heavy burden that is required for a reversal or new trial on appeal on this issue.

2. Exclusion of Guilty Plea Allocution

Next, defendant contends that it was error for the Court to exclude his co-defendant Suni Munshani's plea allocution because it qualifies as a statement against penal interest, and given that his co-defendant identified only one co-conspirator, Jayant Ramchandani, in that plea, it was non-harmless error to exclude it. The Government counters that the plea allocution was properly excluded as hearsay and as unfairly prejudicial. And regardless, the Government argues that the exclusion was harmless error because a press release was admitted that contained the same information as the portions of the plea allocution that would have been admissible under Federal Rule of Evidence 804(b)(3).

Under Federal Rule of Evidence 804(b)(3), statements against penal interest are admissible. A statement is considered against penal interest when "a reasonable person in the declarant's shoes would perceive the statement as detrimental to his or her own penal interest." United States v. Miller, 954 F.3d 551, 563 (2d Cir. 2020) . The Court must make this assessment on a statement-by-statement basis. See Williamson v. United States, 512 U.S. 594, 599-602 (1994).

Only a select portion of the plea allocution is even arguably self-inculpatory. The majority of the allocution is preliminary questions from the Court and answers to those preliminary questions from Suni Munshani. See 12/9/22 Sentencing of Suni Munshani Hr'g Tr. at 2:1-15:14, Dkt No. 34 ("12/9/22 Sentencing Tr."). The real dispute thus centers on Suni Munshani's description of the conduct that made him guilty of conspiracy to commit wire fraud. See Id. at 15:15-17:17. In particular, defendant asserts it was nonharmless error to exclude the portion of that description that identifies Jayant Ramchandani as a co-conspirator and describes Ramchandani's role in the conspiracy. See id. at 16:23-24, 17:12, 17:5-6.

But the identification and description of Ramchandani's role in the conspiracy is not self-inculpatory because it does not describe Suni Munshani's own criminal conduct. See, e.g., United States v. Tropeano, 252 F.3d 653, 658-59 (2d Cir. 2001) ("The answer to the follow-up question, 'whether the defendant conspired with one person or more than one person,' added nothing to [the defendant's] admission of his own guilt."). It was accordingly not erroneous to exclude this portion of the plea allocution. This does not come close to raising a substantial question.

To be sure, there are portions of Suni Munshani's description of his own criminal conduct that are self-inculpatory, such as the description of how he diverted funds to himself or how agreements benefited him improperly. See, e.g., 12/9/22 Sentencing Tr. at 15:16-16:10. But as the Government points out, even assuming arguendo that those portions of the plea allocution should have come into evidence, the error was harmless.

Evidentiary rulings are reviewed under a deferential abuse of discretion standard and "are subject to harmless error analysis" under Fed. R. Crim. P. 52(a). United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009); United States v. Aiyer, 33 F.4th 97, 123 (2d Cir. 2022). So, even if an evidentiary ruling is erroneous, it "is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury." Mercado, 573 F.3d at 141. To determine if the exclusion of defense evidence was non-harmless error, the Second Circuit considers:

(1) the importance of . . . unrebutted assertions to the government's case; (2) whether the excluded material was cumulative; (3) the presence or absence of evidence corroborating or contradicting the government's case on the factual questions at issue; (4) the extent to which the . defendant was otherwise permitted to advance the defense; and (5) the overall strength of the prosecution's case.

United States v. Gupta, 747 F.3d 111, 133-34 (2d Cir. 2014).

It is worth noting that defendant does not argue excluding Suni Munshani's description of his own criminal conduct was nonharmless error. Defendant's brief, instead, only argues that the exclusion of the information about his co-conspirator, Jayant Ramanchandi, is non-harmless error which as discussed above, was plainly not self-inculpatory. And even if defendant were to argue that the exclusion of these portions of the plea allocution were non-harmless error, it would be unavailing. The Court originally excluded the plea allocution in its entirety unless the Government opened the door. See 2/8/23 Trial Tr. at 4:3-19. After the Government's opening, the Court found that the door was...