UNITED STATES of America, Appellee, v. Pedro Gautier ESPADA, Defendant, Pedro Espada, Jr., Defendant-Appellant, 607 F. App'x 89

SUMMARY ORDER Pedro Espada, Jr., pro se, appeals from a judgment of the United States District Court for the Eastern District of New York (Block, /.). Espada was convicted, after a jury trial, of four counts of embezzling money from the Soundview Healthcare Network, a not-for-profit institution that received federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), and thereafter, pursuant to a plea agreement, entered a guilty plea, to one count of subscribing to false and fraudulent statements in a 2005 tax return, in violation of 26 U.S.C. § 7206(1).

He was sentenced to concurrent terms of 60 months’ imprisonment on all counts, a term of three years’ supervised release, restitution, forfeiture, and a special assessment. Based on Espada’s waiver of appellate rights contained in his plea agreement, this Court previously granted the government’s motion to dismiss Espada’s appeal of his conviction and term of imprisonment. The Court ordered the appeal to proceed with respect to Espada’s challenges to the denial of his motion for a new trial brought pursuant to Federal Rule of Criminal Procedure 33, and to the non-imprisonment components of his sentence.

See United States v. Espada, 13-2456, Dkt. No. 180 (2d Cir. Dec. 4, 2014). Espada argues that the district court erred in denying his motion for a new trial based on the judge’s alleged ex parte communication with the jury and the jury’s alleged reliance on evidence not admitted at trial. He further contends that the district judge should have recused himself from deciding the new trial motion. Finally, he argues that the amount of the forfeiture money judgment entered against him should have been decided by the jury, rather than by the court.

We assume the parties’ familiarity with the underlying facts and procedural history. As to Espada’s challenge to the denial of his Rule 33 motion: Espada alleges misconduct by the presiding judge and argues that the inquiry should not have been conducted by the judge himself. While it would ordinarily be better for such an inquiry to be conducted by another judge, our review of the record convinces us that denial of the motion was proper. Cf. United States v.

Ianniello, 866 F.2d 540, 543 (2d Cir.1989) (recognizing that “post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting jury room deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts,” but remanding for a hearing under the circumstances of that case). Although the appeal waiver in Espada’s plea agreement does not prohibit him from challenging the restitution and forfeiture components of his sentence, see United States v.

Oladimeji, 463 F.3d 152, 156-57 (2d Cir.2006), he does not challenge the amount of restitution or forfeiture imposed, and his procedural challenge to the imposition of those components of his sentence is meritless. Both forfeiture and restitution were statutorily required. See 18 U.S.C. §§ 981(a)(1)(D), 3663A. Without challenging the amounts of forfeiture and restitution, Espada argues that the orders were “illegal” because the district court rather than the jury decided the issues.

However, Espada explicitly agreed in his plea agreement that the court would decide the forfeiture issue, and implicitly agreed that the judge would determine restitution. In any event, we have held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply to forfeiture orders because forfeiture statutes do not establish any statutory maxima and are not a determinate scheme. United States v. Fruchter, 411 F.3d 377, 381-83 (2d- Cir.2005). Espada’s reliance on Southern Union Co. v.

United States, — U.S.-, 132 S.Ct. 2344, 2350-51, 183 L.Ed.2d 318 (2012), is inapposite; Southern Union held that criminal fines are subject to Apprendi. The case did not consider criminal forfeiture. With respect to restitution, even if Espada had not implicitly agreed to have the district judge decide the matter, restitution orders pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, which are based on factual findings made by a judge rather than by a jury, are constitutional. United States v. Reifler, 446 F.3d 65, 118 (2d Cir.2006).

Accordingly, the non-imprisonment components of Espada’s sentence are affirmed. We have considered all of Espada’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM. . Espada has waived any challenge to his term of supervised release and special assessment by failing to mention those issues in his brief. See United States v. Greer, 285 F.3d 158, 170 (2d Cir.2002).