Opinion
12-2653-cr
11-22-2013
UNITED STATES OF AMERICA, Appellee, v. BORIS TOMICIC, Defendant-Appellant.
Appearing for Appellant: Kenneth Rosenthal, Brenner, Saltzman & Wallman LLP, New Haven, CT Appearing for Appellee: Eric J. Glover, Assistant United States Attorney (David B. Fein, United States Attorney for the District of Connecticut, Robert Spector, Assistant United States Attorney, on the brief) New Haven, CT
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 the 22nd day of November, two thousand thirteen. Present: GUIDO CALABRESI,
ROSEMARY S. POOLER,
Circuit Judges.
The Honorable Edward Korman, United States District Court for the Eastern District of New York, sitting by designation.
District Judge.
Appearing for Appellant:
Kenneth Rosenthal, Brenner, Saltzman & Wallman LLP, New
Haven, CT
Appearing for Appellee:
Eric J. Glover, Assistant United States Attorney (David B. Fein,
United States Attorney for the District of Connecticut, Robert
Spector, Assistant United States Attorney, on the brief) New
Haven, CT
Appeal from the United States District Court for the District of Connecticut (Eginton, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Boris Tomicic appeals from the amended judgment entered in the United States District Court for the District of Connecticut sentencing him principally to 18 months' imprisonment and ordering him to pay restitution of $90,000 after a jury convicted him of one count of wire fraud in violation of 18 U.S.C. § 1343. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
Tomicic argues that the government presented insufficient evidence at trial to support his conviction, arguing that the record lacks any evidence demonstrating he knowingly participated in fraud. A plaintiff seeking to overturn a conviction on the basis of insufficient evidence bears "a very heavy burden." United States v. Crowley, 318 F.3d 401, 407 (2d Cir. 2003) (internal quotation marks and citation omitted). "[T]he evidence must be viewed in the light most favorable to the Government, with all reasonable inferences drawn in favor of the verdict." Id. (citation omitted). The jury verdict must be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Tomicic cannot satisfy his burden. The evidence at trial established that Tomicic was aware that there was a dispute between the developer on the project he worked on and the insurance carrier. The evidence also established that Tomicic submitted what he knew to be falsified, backdated competing bids to the developer. A rational trier of fact could find Tomicic knew the falsified bids would be submitted to the developer's insurer.
Moreover, there was a sufficient basis for the district court to calculate a loss amount and restitution amount of $90,000. "In calculating loss amount, the obligation of the district court is to make a reasonable estimate of the loss, given the available information." United States v. Turk, 626 F.3d 743, 748 (2d Cir. 2010) (internal quotation marks and citation omitted). Tomicic argues that in the absence of any evidence demonstrating Chubb's loss, it was unreasonable for the district court to find Chubb suffered a loss of $90,000, which increased his offense level to 15, yielding a Guidelines range of 18 to 24 months. The record contained sufficient evidence to support finding, by a preponderance of the evidence, that Chubb suffered a loss of $90,000, which represents the difference between what Chubb paid based, in part, on the falsified bids ($178 per ton) and the amount of the actual disposal price ($127.50 per ton) with a 15 percent markup. For the same reasons, we find no error with the restitution award.
We have examined the remainder of Tomicic's 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