United States v. Roy Ageloff 1

11-3474-cr
United States v. Roy Ageloff
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UNITED STATES COURT OF APPEALS 2
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FOR THE SECOND CIRCUIT 4
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August Term, 2012 8
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(Argued: September 14, 2012 Decided: October 10, 2012) 10
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Docket No. 11-3474-cr 12
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UNITED STATES OF AMERICA, 16
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Appellee, 18
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-v.- 20
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ROBERT CATOGGIO, DONALD MESSINGER, BARRY MIELE, ALAN KOOP, 22
MARCELO QUINTERO, MICHAEL TROCCHIO, DOMINICK FRONCILLO, 23
STEPHEN AGNESE, ARTHUR ALONZO, JOHN ASARO, RANDY ASHENFARB, 24
ROCCO BASILE, WILLIAM JOSEPH BATTISTA, MICHAEL A. BENGEN, 25
JOHN BESARANY, NICHOLAS BOSCO, FABIO BORGOGNONE, NEIL 26
BRAUNER, NICHOLAS BRIGANTI, RONALD CATAGGIO, ANTHONY 27
CAVICCHIO, JOHN CLAUDINO, DAMON GERARD COHEN, WILLIAM 28
COSIDENTE, RONALD CROPPER, JR., JOSEPH DIBELLA, DAVID 29
DUNHAM, JONATHAN DURINDA, RUI REIS FIGUEIREDO, ROBERT 30
FIGUEROA, VITO GILI, VALERY GOLDBERG, GREGORY GROELLER, 31
THOMAS GUCCIARDO, JOHN LEMBO, III, RICO LOCASCIO, BRENT 32
CALDERONE LONGO, MARK MANCINO, PAUL MEDAGLIA, CHRISTOPHER L. 33
MIANO, VINCENT MINERVA, CHRISTOPHER MORMANDO, JAIME SCOTT 34
MORRILL, JOEL NAZARENO, VITO PADULO, MICHAEL PERRINE, SCOTT 35
PICCININNI, AKA SCOTT PALMER, AKA SCOOTER, FRANK J. 36
PIZZOLATO, AKA FRANKIE THE FISH, THOMAS PLAMENCO, JOSEPH 37
ROSETTI, KEITH RUFFLER, KIRK RUFFLER, MICHAEL SCARAMELLINO, 38
JOSEPH SCARFONE, JR., RICHARD SCARSELLA, PAUL TAHAN, JEFFREY 39
VAN BLARCOM, VICTOR VERNACI, 40
41
Defendants, 42
43
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ROY AGELOFF, 1
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Defendant - Appellant. 3
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Before: 8
P OOLER , W ESLEY , L OHIER , Circuit Judges. 9
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Appeal from the August 19, 2011 Memorandum and Order of 13
Restitution from the United States District Court for the 14
Eastern District of New York (Dearie, J.) resentencing 15
Defendant-Appellant Roy Ageloff to pay $190 million in 16
restitution to the victims of a massive fraud scheme 17
perpetrated by Ageloff and his co-conspirators. Ageloff 18
challenges this order on four grounds: (1) the district 19
court erred by not holding an evidentiary hearing prior to 20
resentencing; (2) the eight-year delay in resentencing 21
violated Ageloff’s constitutional and statutory rights; (3) 22
the district court should have released some or all of the 23
$536,000 of Ageloff’s money held by the court from the time 24
of his initial sentencing; and (4) Ageloff was entitled to 25
CJA funding for expert services. Should we remand, Ageloff 26
requests that the case be reassigned and CJA counsel 27
relieved. We affirm and hold that the district court 28
properly exercised its authority under the All Writs Act to 29
restrain Ageloff’s funds in anticipation of resentencing. 30
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32
A FFIRMED . 33
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SCOTT L. FENSTERMAKER, Law Office of Scott L. 39
Fenstermaker, P.C., New York, NY, for 40
Defendant-Appellant. 41
42
DANIEL A. SPECTOR, Assistant United States 43
Attorney (David C. James, Assistant United 44
States Attorney, on the brief), for Loretta E. 45

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3
Lynch, United States Attorney for the Eastern 1
District of New York, New York, NY, for 2
Appellee. 3
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P ER C URIAM : 9
Defendant-Appellant Roy Ageloff appeals from the August 10
19, 2011 Memorandum and Order of Restitution by the United 11
States District Court for the Eastern District of New York 12
(Dearie, J.) resentencing Ageloff to pay $190,339,436.65 in 13
restitution to the victims of a massive fraud scheme he and 14
his co-conspirators designed and executed. Ageloff 15
contends, inter alia, that the district court should have 16
released some or all of the $536,000 of Ageloff’s money held 17
by the court pending his resentencing. Whether a district 18
court may exercise its authority under the All Writs Act to 19
restrain a convicted defendant’s funds in anticipation of 20
sentencing is a question of first impression in this 21
Circuit. We answer it in the affirmative and affirm the 22
district court’s restitution order. 23
24
Background 25
Ageloff and his partner, Robert Catoggio, were the 26
leaders of a massive “pump-and-dump” securities fraud 27

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1 At the time Ageloff pled guilty, $80 million was the
highest possible loss bracket under the 1997 Federal
Sentencing Guidelines Manual. See U.S.S.G. §
2F1.1(b)(1)(S); United States v. Catoggio, 326 F.3d 323, 325
(2d Cir. 2003). The highest possible loss bracket under the
2011 Federal Sentencing Guidelines Manual is $400 million.
See U.S.S.G. § 2B1.1(b)(1)(P).
4
scheme. From 1991 to 1998, Ageloff and Catoggio owned and 1
controlled four brokerage firms through which they defrauded 2
the firms’ customers in connection with the purchase and 3
sale of different “House Stocks.” Ageloff and Catoggio 4
acquired these securities cheaply and then sold their shares 5
at a substantial profit after creating artificial market 6
demand by offering incentives to brokers to aggressively 7
market the House Stocks. After this scheme unraveled, 8
Ageloff pled guilty to one count of racketeering and 9
stipulated to a sentence enhancement of eighteen levels for 10
fraud that amounted to losses exceeding $80 million. 1
11
The district court sentenced Ageloff to 96 months’ 12
imprisonment, three years’ supervised release and $80 13
million in restitution pursuant to the Mandatory Victims 14
Restitution Act (“MVRA”), 18 U.S.C. § 3663A. At the time of 15
his initial sentencing, Ageloff deposited approximately 16
$536,000 with the clerk of the court for the purpose of 17
paying restitution. Ageloff subsequently appealed the 18

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district court’s 2001 restitution order to this Court, 1
arguing, among other things, that the district court could 2
not order restitution without first identifying the victims 3
and their losses. See United States v. Catoggio, 326 F.3d 4
323, 324 (2d Cir. 2003). We agreed and remanded to the 5
district court for the limited purpose of resentencing in 6
accordance with the MVRA. Id. at 330; 18 U.S.C. § 7
3664(f)(1)(A). 8
On remand, the government submitted a report prepared 9
by the National Association of Securities Dealers (“NASD 10
Report”) that synthesized trade-sheet data to identify and 11
tabulate the estimated $190 million in losses suffered by 12
more than 9,000 victims. Although armed with the NASD 13
Report, eight years elapsed before the district court 14
resentenced Ageloff. The delay is partly traceable to 15
Ageloff’s 2008 Florida prosecution for conspiracy to commit 16
money laundering in connection with the conviction at issue 17
here, as well as to a stay issued while Ageloff’s petition 18
for a writ of certiorari was pending before the Supreme 19
Court. However, as the district court noted, the eight-year 20
delay on remand is not solely attributable to Ageloff. Over 21
the years, there were several changes of counsel on both 22
sides. And, indeed, the district court recognized that 23

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2 Whether 28 U.S.C. § 1651 authorizes post-conviction,
pre-sentencing restraint of a defendant’s property is a
legal issue. We therefore engage in de novo review. See,
e.g., United States v. Razmilovic, 419 F.3d 134, 136 (2d
Cir. 2005).
6
responsibility “ultimately lies, as it must, with the 1
Court.” See United States v. Ageloff, 809 F. Supp. 2d 89, 2
107 n.17 (E.D.N.Y. 2011). 3
In 2011, after reviewing Ageloff’s objections to the 4
NASD Report, the district court incorporated the loss 5
information into its restitution order and sentenced Ageloff 6
to pay just over $190 million. Id. at 97-98, 112. In its 7
order, the court also affirmed its prior rejection of 8
Ageloff’s request to access some of his money held by the 9
court. Id. at 106. On appeal, Ageloff argues that the 10
district court improperly refused to release any of his 11
funds and consequently denied him the right to secure 12
counsel of his choice. 13
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Discussion 2
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The All Writs Act enables federal courts to “issue all 16
writs necessary or appropriate in aid of their respective 17
jurisdictions and agreeable to the usages and principles of 18
law.” 28 U.S.C. § 1651(a). The broad power conferred by 19

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the All Writs Act is aimed at achieving “‘the rational ends 1
of law.’” United States v. N.Y. Tel. Co., 434 U.S. 159, 172 2
(1977) (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). 3
Thus, courts have significant flexibility in exercising 4
their authority under the Act. See id. at 173. 5
Although this Court has never addressed whether the All 6
Writs Act enables a court to restrain a convicted 7
defendant’s property in anticipation of ordering 8
restitution, courts in this Circuit and beyond have 9
uniformly answered this question in the affirmative. See 10
United States v. Hatfield, No. 06-CR-0550, 2010 WL 4235815, 11
at *1 (E.D.N.Y. Sept. 27, 2010); United States v. Numisgroup 12
Int’l Corp., 169 F. Supp. 2d 133, 138-39 (E.D.N.Y. 2001); 13
United States v. Ross, No. 92-CR-1001, 1993 WL 427415, at *1 14
(S.D.N.Y. Oct. 15, 1993); see also United States v. 15
Sullivan, No. 5:09-CR-302-FL-1, 2010 WL 5437243, at *5-*7 16
(E.D.N.C. Nov. 17, 2010); United States v. Simmons, No. 07- 17
CR-30, 2008 WL 336824, at *1 (E.D. Wis. Feb. 5, 2008); 18
United States v. Runnells, 335 F. Supp. 2d 724, 725-26 (E.D. 19
Va. 2004); United States v. Abdelhadi, 327 F. Supp. 2d 587, 20
598-601 (E.D. Va. 2004). 21
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In reaching this conclusion, courts explain that a 1
sentencing court may use the All Writs Act to prevent the 2
defendant from frustrating collection of the restitution 3
debt. For instance, in Ross, a district court for the 4
Southern District of New York issued an order restraining 5
the convicted defendant’s assets pending sentencing pursuant 6
to the All Writs Act. 1993 WL 427415, at *1. The 7
restraining order furthered the court’s exercise of its 8
jurisdiction over sentencing by ensuring that the defendant 9
would have some assets available to satisfy the pending 10
restitution order. See id. at *1. Even though the exact 11
amount of restitution to be ordered was unclear, the 12
district court determined that there was “a real question as 13
to whether or not [the defendant] currently has sufficient 14
liquid assets to satisfy any judgment of restitution ordered 15
by the Court,” and it therefore “seem[ed] totally 16
appropriate to restrain [the defendant] from dissipating his 17
assets prior” to sentencing. Id. (emphasis added). 18
Relying on Ross, the Eastern District of New York used 19
the All Writs Act to restrain the defendants’ 26,600 coins 20
(valued somewhere between $430,000 and $860,000) in 21
anticipation of sentencing. Numisgroup Int’l Corp., 169 F. 22
Supp. 2d at 136-38. The court reasoned that “‘[t]here is no 23

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logic to the position that the Court is powerless to enter a 1
restraining order after a jury has found a defendant guilty 2
of participating in a large-scale fraud simply because 3
sentencing has been delayed.’” Id. at 138 (quoting Ross, 4
1993 WL 427415, at *1). In explaining its order, the court 5
also expressed concern over one defendant’s lack of assets 6
available to satisfy the court’s future order of 7
restitution. See id. at 138. 8
Similarly, in Sullivan, the Eastern District of North 9
Carolina determined that a restraining order was warranted 10
pursuant to the All Writs Act because the defendant, who had 11
previously pled guilty to eleven counts of manufacturing 12
child pornography and one count of possession of child 13
pornography, was attempting to dispose of his assets prior 14
to sentencing and a probable order of restitution. 2010 WL 15
5437243, at *1, *7. The court explained that it would be 16
“‘without any meaningful ability to impose a proper 17
sentence’” if it could not issue an order stopping a 18
convicted defendant awaiting sentencing from disposing of 19
assets in an effort to avoid paying restitution or other 20
fines and court costs. Id. at *6 (quoting United States v. 21
Gates, 777 F. Supp. 1294, 1296 n.7 (E.D. Va. 1991)). 22
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10
The Eighth Circuit recently issued a set of decisions 1
that strongly suggest it takes a similar position regarding 2
a sentencing court’s ability to restrain a defendant’s funds 3
pursuant to the All Writs Act. See United States v. 4
Yielding, 657 F.3d 688 (8th Cir. 2011) (“Yielding I”); see 5
also United States v. Yielding, 657 F.3d 722 (8th Cir. 2011) 6
(“Yielding II”). In Yielding I, the Eighth Circuit vacated 7
and remanded the district court’s approximately $1 million 8
restitution order after finding that the court below erred 9
in presuming that restitution was mandatory. See 657 F.3d 10
at 718-19. In Yielding II, decided on the same day, the 11
court affirmed the district court's issuance of a TRO to 12
prevent the defendant from spending or transferring any of 13
the $160,000 he was likely to receive as a settlement in an 14
unrelated civil case. 657 F.3d at 727-28. The Eighth 15
Circuit confirmed the district court's authority to issue 16
the TRO pursuant to the All Writs Act because the 17
restraining order was appropriate in aid of the court's 18
exercise of jurisdiction to ensure that the defendant's 19
assets were available for paying restitution. See id. at 20
726-28. "We agree that a sentencing court has jurisdiction 21
to enforce its restitution order and may use the All Writs 22
Act, when necessary and appropriate, to prevent the 23

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3 That the district court did not cite to the All Writs
Act in reaching its decision is of no consequence; we are
free to affirm on any legal basis for which there is
sufficient support in the record. See, e.g., Alfaro Motors,
Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
11
restitution debtor from frustrating collection of the 1
restitution debt." Id. at 727. Because the Eighth Circuit 2
vacated the restitution order itself on the same day it 3
affirmed the TRO, the court effectively held that the All 4
Writs Act gave the district court the power to issue a 5
restraining order for the purpose of ensuring that 6
sufficient funds would be available to satisfy any future 7
order of restitution. 8
Aided by the relevant case law, we conclude that the 9
district court properly exercised its authority under the 10
All Writs Act to restrain Ageloff’s assets in anticipation 11
of resentencing. 3 Ageloff pled guilty to committing a crime 12
for which restitution is mandatory under the MVRA. See 18 13
U.S.C. § 3663A(c)(1)(A)(ii). Given that Ageloff agreed to a 14
sentencing enhancement for fraud causing losses of $80 15
million or more, the eventual restitution order was certain 16
to exceed $536,000. See Catoggio, 326 F.3d at 329. 17
Although we believe that this circumstance alone would be 18
sufficient to justify the district court’s exercise of its 19

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power under the All Writs Act, other facts highlight the 1
need to ensure compliance with the district court’s 2
anticipated order of restitution: specifically, Ageloff’s 3
2008 conviction for conspiring to launder millions of 4
dollars in proceeds from this fraud scheme. 5
Moreover, Ageloff’s argument that the district court’s 6
refusal to release any of his money denied him the right to 7
counsel of his choice in violation of the Sixth Amendment is 8
without merit. In United States v. Monsanto, the Supreme 9
Court held that a pretrial restraining order freezing the 10
defendant’s assets did “not ‘arbitrarily’ interfere with a 11
defendant’s ‘fair opportunity’ to retain counsel.” 491 U.S. 12
600, 616 (1989) (quoting Powell v. Alabama, 287 U.S. 45, 69, 13
53 (1932)). This reasoning applies with “even greater 14
force” here because Ageloff had already pled guilty to both 15
the underlying fraud scheme and later to attempting to 16
launder its proceeds from his prison cell. See Numisgroup 17
Int’l Corp., 169 F. Supp. 2d at 139. In any event, Ageloff 18
was ably represented by CJA counsel at the time of 19
resentencing and for purposes of this appeal. 20
Ageloff’s remaining arguments on appeal are without 21
merit. For example, contrary to Ageloff’s assertions, the 22
district court was not required to hold an evidentiary 23

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hearing prior to resentencing provided that Ageloff was 1
afforded sufficient opportunity to be heard. See United 2
States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996). He 3
was. Finally, Ageloff cannot make out any constitutional or 4
statutory claim based on the eight-year delay in 5
resentencing because he did not suffer prejudice. Cf. 6
United States v. Ray, 578 F.3d 184, 202 (2d Cir. 2009). 7
8
Conclusion 9
For the foregoing reasons, the order of the district 10
court is hereby AFFIRMED. 11

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