Rigas v. United States

R
20-2251
Rigas v. United States of America

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
21st day of May, two thousand twenty one.

Present:         GUIDO CALABRESI,
                 ROSEMARY S. POOLER,
                 MICHAEL H. PARK,
                            Circuit Judges.

_____________________________________________________

JOHN J. RIGAS, TIMOTHY J. RIGAS,

                                    Petitioners-Appellants,

                          v.                                                     20-2251

UNITED STATES OF AMERICA,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellants:           Lawrence C. Marshall, Stanford, CA.

                                    Megan Cunniff Church, Jordan A. Rice, Eugene A. Sokoloff,
                                    MoloLamken LLP, Chicago, IL and Washington, D.C. (on the
                                    brief).

Appearing for Appellee:             Alex Rossmiller, Assistant United States Attorney (Matthew
                                    Podolsky, Karl Metzner, Assistant United States Attorneys, on the
                                    brief), for Audrey Strauss, United States Attorney for the Southern
                                    District of New York, New York, N.Y.
      Appeal from the United States District Court for the Southern District of New York
(Wood, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        John J. Rigas and Timothy J. Rigas, former executives of Adelphia Communications
Corporation, appeal from the May 15, 2020 order of the United States District Court for the
Southern District of New York (Wood, J.) denying their motions to vacate their convictions and
to vacate, set aside, or correct their sentences pursuant to 28 U.S.C. § 2255. They argue that the
government failed to honor its obligations under Brady v. Maryland, 

373 U.S. 83

 (1963), by not
disclosing its notes from pretrial interviews of Carl Rothenberger, Adelphia’s lead outside
counsel, and employees of Adelphia’s suppliers, Motorola and Scientific Atlanta. None of these
witnesses testified at trial. We have previously partially affirmed the Rigases’ convictions,
affirmed their amended sentences, and explained how the Rigases and their co-conspirators
manipulated the books of Adelphia and certain privately-held Rigas-managed entities known as
“RMEs” in furtherance of a “massive corporate fraud.” United States v. Rigas, 

583 F.3d 108

,
111, 126 (2d Cir. 2009); see also United States v. Rigas, 

490 F.3d 208

, 212-19 (2d Cir. 2007).
We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        We review the decision to deny a Section 2255 motion de novo and findings of fact for
clear error. See Yick Man Mui v. United States, 

614 F.3d 50

, 53 (2d Cir. 2010). “Due process
imposes upon the government an obligation to disclose material evidence favorable to an
accused.” United States v. Gaggi, 

811 F.2d 47

, 59 (2d Cir. 1987). “Evidence is favorable if it is
either exculpatory or impeaching, and it is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.” United States. v. Rowland, 

826 F.3d 100

, 111 (2d Cir. 2016). Defendants “need not
show that the suppressed evidence would have resulted in an acquittal,” but rather “that the
favorable evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” 

Id. at 112

 (internal quotation marks omitted). However,
“no Brady violation occurs if the defendant knew or should have known the essential facts
permitting him to take advantage of any exculpatory evidence.” Gaggi, 

811 F.2d at 59

.

         The district court did not err in denying the Section 2255 motion. Even assuming it was
not the law of the case that the Rigases were aware of the “essential facts” permitting them to
take advantage of the undisclosed evidence, none of that evidence is materially exculpatory. At
trial, the government presented overwhelming evidence of the Rigases’ instructions to issue
materially misleading disclosures and fraudulent intent in doing so. Because “[t]he assessment of
materiality is made in light of the entire record,” United States v. Triumph Cap. Grp., Inc., 

544
F.3d 149

, 161 (2d Cir. 2008), the new evidence does not reasonably undermine our confidence in
the jury’s verdict, see Rowland, 

826 F.3d at 112

.

       To the extent the district court’s order suggested that John J. Rigas’s application should
be construed as seeking a writ of coram nobis, that would have been error because the Section
2255 motion was first filed in 2011, when John J. Rigas was still incarcerated, and the statute’s


                                                 2
“in custody” requirement refers to the applicant’s status at the time of filing. See Scanio v.
United States, 

37 F.3d 858

, 860 (2d Cir. 1994). However, we do not vacate the order and remand
the case on this ground because the district court nevertheless conducted a rigorous Section 2255
analysis as to both defendants and merely suggested, in a footnote, that John J. Rigas’s petition
would also fail under the stricter coram nobis standards. See Rigas, 

2020 WL 2521530

, at *4 n.1,
*5-17.

        We have considered the remainder of the Rigases’ arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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