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United States of America v. Robert Catoggio

October 10, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
ROBERT CATOGGIO, DONALD MESSINGER, BARRY MIELE, ALAN KOOP, MARCELO QUINTERO, MICHAEL TROCCHIO, DOMINICK FRONCILLO, STEPHEN AGNESE, ARTHUR ALONZO, JOHN ASARO, RANDY ASHENFARB, ROCCO BASILE, WILLIAM JOSEPH BATTISTA, MICHAEL A. BENGEN, JOHN BESARANY, NICHOLAS BOSCO, FABIO BORGOGNONE, NEIL BRAUNER, NICHOLAS BRIGANTI, RONALD CATAGGIO, ANTHONY CAVICCHIO, JOHN CLAUDINO, DAMON GERARD COHEN, WILLIAM COSIDENTE, RONALD CROPPER, JR., JOSEPH DIBELLA, DAVID DUNHAM, JONATHAN DURINDA, RUI REIS FIGUEIREDO, ROBERT FIGUEROA, VITO GILI, VALERY GOLDBERG, GREGORY GROELLER, THOMAS GUCCIARDO, JOHN LEMBO, III, RICO LOCASCIO, BRENT CALDERONE LONGO, MARK MANCINO, PAUL MEDAGLIA, CHRISTOPHER L. MIANO, VINCENT MINERVA, CHRISTOPHER MORMANDO, JAIME SCOTT MORRILL, JOEL NAZARENO, VITO PADULO, MICHAEL PERRINE, SCOTT PICCININNI, AKA SCOTT PALMER, AKA SCOOTER, FRANK J. PIZZOLATO, AKA FRANKIE THE FISH, THOMAS PLAMENCO, JOSEPH ROSETTI, KEITH RUFFLER, KIRK RUFFLER, MICHAEL SCARAMELLINO, JOSEPH SCARFONE, JR., RICHARD SCARSELLA, PAUL TAHAN, JEFFREY VAN BLARCOM, VICTOR VERNACI, DEFENDANTS, ROY AGELOFF, DEFENDANT - APPELLANT.



Per curiam.

11-3474-cr

United States v. Roy Ageloff

(Argued: September 14, 2012

Before: POOLER, WESLEY, LOHIER, Circuit Judges.

Appeal from the August 19, 2011 Memorandum and Order of 14 Restitution from the United States District Court for the 15 Eastern District of New York (Dearie, J.) resentencing 16 Defendant-Appellant Roy Ageloff to pay $190 million in 17 restitution to the victims of a massive fraud scheme 18 perpetrated by Ageloff and his co-conspirators. Ageloff 19 challenges this order on four grounds: (1) the district 20 court erred by not holding an evidentiary hearing prior to 21 resentencing; (2) the eight-year delay in resentencing 22 violated Ageloff's constitutional and statutory rights; (3) 23 the district court should have released some or all of the 24 $536,000 of Ageloff's money held by the court from the time 25 of his initial sentencing; and (4) Ageloff was entitled to 26 CJA funding for expert services. Should we remand, Ageloff 27 requests that the case be reassigned and CJA counsel 28 relieved. We affirm and hold that the district court 29 properly exercised its authority under the All Writs Act to 30 restrain Ageloff's funds in anticipation of resentencing.

33 AFFIRMED.

10 Defendant-Appellant Roy Ageloff appeals from the August 11 19, 2011 Memorandum and Order of Restitution by the United 12 States District Court for the Eastern District of New York 13 (Dearie, J.) resentencing Ageloff to pay $190,339,436.65 in 14 restitution to the victims of a massive fraud scheme he and 15 his co-conspirators designed and executed. Ageloff 16 contends, inter alia, that the district court should have 17 released some or all of the $536,000 of Ageloff's money held 18 by the court pending his resentencing. Whether a district 19 court may exercise its authority under the All Writs Act to 20 restrain a convicted defendant's funds in anticipation of 21 sentencing is a question of first impression in this 22 Circuit. We answer it in the affirmative and affirm the 23 district court's restitution order.

Background

26 Ageloff and his partner, Robert Catoggio, were the 27 leaders of a massive "pump-and-dump" securities fraud 3 1 scheme. From 1991 to 1998, Ageloff and Catoggio owned and 2 controlled four brokerage firms through which they defrauded 3 the firms' customers in connection with the purchase and 4 sale of different "House Stocks." Ageloff and Catoggio 5 acquired these securities cheaply and then sold their shares 6 at a substantial profit after creating artificial market 7 demand by offering incentives to brokers to aggressively 8 market the House Stocks. After this scheme unraveled,

9 Ageloff pled guilty to one count of racketeering and 10 stipulated to a sentence enhancement of eighteen levels for 11 fraud that amounted to losses exceeding $80 million.*fn1 12 The district court sentenced Ageloff to 96 months' 13 imprisonment, three years' supervised release and $80 14 million in restitution pursuant to the Mandatory Victims 15 Restitution Act ("MVRA"), 18 U.S.C. § 3663A. At the time of 16 his initial sentencing, Ageloff deposited approximately 17 $536,000 with the clerk of the court for the purpose of 18 paying restitution. Ageloff subsequently appealed the 1 district court's 2001 restitution order to this Court, 2 arguing, among other things, that the district court could 3 not order restitution without first identifying the victims 4 and their losses. See United States v. Catoggio, 326 F.3d 5 323, 324 (2d Cir. 2003). We agreed and remanded to the 6 district court for the limited purpose of resentencing in 7 accordance with the MVRA. Id. at 330; 18 U.S.C. § 8 3664(f)(1)(A).

9 On remand, the government submitted a report prepared 10 by the National Association of Securities Dealers ("NASD 11 Report") that synthesized trade-sheet data to identify and 12 tabulate the estimated $190 million in losses suffered by 13 more than 9,000 victims. Although armed with the NASD 14 Report, eight years elapsed before the district court 15 resentenced Ageloff. The delay is partly traceable to 16 Ageloff's 2008 Florida prosecution for conspiracy to commit 17 money laundering in connection with the conviction at issue 18 here, as well as to a stay issued while Ageloff's petition 19 for a writ of certiorari was pending before the Supreme 20 Court. However, as the district court noted, the eight-year 21 delay on remand is not solely attributable to Ageloff. Over 22 the years, there were several changes of counsel on both 23 sides. And, indeed, the district court recognized that 5 1 responsibility "ultimately lies, as it must, with the 2 Court." See United States v. Ageloff, 809 F. Supp. 2d 89, 3 107 n.17 (E.D.N.Y. 2011).

4 In 2011, after reviewing Ageloff's objections to the 5 NASD Report, the district court incorporated the loss 6 information into its restitution order and sentenced Ageloff 7 to pay just over $190 million. Id. at 97-98, 112. In its 8 order, the court also affirmed its prior rejection of 9 Ageloff's request to access some of his money held by the 10 court. Id. at 106. On appeal, Ageloff argues that the 11 district court improperly refused to release any of his 12 funds and consequently denied him the right to secure 13 counsel of his choice.

15 Discussion*fn2

16 The All Writs Act enables federal courts to "issue all 17 writs necessary or appropriate in aid of their respective 18 jurisdictions and agreeable to the usages and principles of 19 law." 28 U.S.C. ยง 1651(a). The broad power conferred by 1 the All Writs Act is aimed at achieving "'the rational ends 2 of law.'" United States v. N.Y. ...


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