United States v. Fasasi: Second Circuit Clarifies the Boundaries of Plain-Error Review, Rule 32 PSR Verification, and the “Substantial Overseas Conduct” Fraud Enhancement

1. Introduction

United States v. Fasasi, No. 22-1922 (2d Cir. Aug. 4, 2025), is a Second Circuit summary order affirming the convictions and 168-month sentence of Farouq Fasasi for his role in a multimillion-dollar romance/mail fraud and money-laundering conspiracy. Although summary orders do not carry formal precedential weight, this decision is noteworthy for three reasons:

1. It delineates how little is required of a district judge to satisfy Federal Rule of Criminal Procedure 32(i)(1)(A)’s duty to verify that a defendant and counsel have read and discussed the Presentence Investigation Report (“PSR”), especially on plain-error review.
2. It illustrates the evidentiary threshold for applying (i) the 18-level loss enhancement under U.S.S.G. § 2B1.1(b)(1)(J) and (ii) the two-level “substantial part of a fraudulent scheme committed from outside the United States” enhancement under § 2B1.1(b)(10)(B).
3. It reaffirms the stringent standard for severance based on allegedly “mutually antagonistic” defenses and the Second Circuit’s reluctance to entertain ineffective-assistance claims on direct appeal.

The order therefore provides important practical guidance to trial judges, prosecutors, and defense counsel litigating multi-defendant fraud cases in the Second Circuit.

2. Summary of the Judgment

After a jury trial in the District of Connecticut, Fasasi was convicted of conspiracy to commit mail/wire fraud (§ 1349), substantive mail fraud (§ 1341), conspiracy to launder money (§ 1956(h)), and substantive money laundering (§ 1957). He received a 168-month prison sentence, three years’ supervised release, and was ordered to pay restitution of roughly $5.9 million. On appeal, he raised three principal arguments:

1. The district court erred in refusing to sever his trial from co-defendants whose defenses were allegedly “mutually antagonistic.”
2. The sentence was procedurally unreasonable because the court (a) inadequately verified PSR review under Rule 32, (b) wrongly calculated loss amount, and (c) improperly applied the § 2B1.1(b)(10)(B) overseas-conduct enhancement.
3. His sentencing counsel rendered ineffective assistance.

The Second Circuit (Livingston, C.J., Lohier & Lee, JJ.) affirmed in full, finding no reversible error and declining to reach the ineffectiveness claim on direct appeal.

3. Analysis

3.1 Precedents Cited

• Zafiro v. United States, 506 U.S. 534 (1993) — articulates the federal preference for joint trials and the standard for severance under Rule 14.
• United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) — describes denial of severance as “virtually unreviewable” absent prejudice amounting to a miscarriage of justice.
• United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) — recognizes that “mutually antagonistic defenses” can, rarely, justify severance.
• United States v. Gates, 84 F.4th 496 (2d Cir. 2023) — underscores Rule 32(i)(1)(A)’s importance; contrasted with Fasasi to show adequate colloquy.
• United States v. Marcus, 560 U.S. 258 (2010) — four-prong plain-error test governing unpreserved sentencing objections.
• United States v. Algahaim, 842 F.3d 796 (2d Cir. 2016) — permits a judge to rely on counsel representations to satisfy Rule 32 verification.
• United States v. Napout, 963 F.3d 163 (2d Cir. 2020) — reiterates that an error must be “clear under current law” to be plain.
• Richardson v. Marsh, 481 U.S. 200 (1987) — presumption that juries follow limiting instructions.

3.2 Court’s Legal Reasoning

3.2.1 Severance

Rule 14(a) allows severance only where joinder risks compromising a specific trial right or the jury’s ability to reach a reliable verdict. Fasasi’s core complaint was that co-defendants blamed him, creating antagonistic defenses. Echoing Zafiro, the panel held:

• “Mutually antagonistic defenses” are not per se prejudicial.
• Limiting instructions — here, telling jurors that counsel arguments are not evidence and that guilt must be assessed separately for each defendant — sufficed to cure any risk.
• Because Fasasi showed no concrete prejudice, denial of severance was well within the district court’s discretion.

3.2.2 Sentencing Issues

Contrasting with Gates, Judge Underhill expressly asked whether counsel and defendant reviewed the PSR and whether there were factual objections. Counsel confirmed review and raised none. On plain-error review, the appellate court found:

• No “clear or obvious” violation; the colloquy, although brief, satisfied Rule 32.
• Even assuming error, it was at least “subject to reasonable dispute,” failing the second Marcus prong.

The PSR attributed $5.946 million in loss (134 victims). Three victim discrepancies totaling $449,600 did not alter the 18-level bracket ($3.5–9.5 million). Because:

• The discrepancies did not render the loss figure “obvious error.”
• Any error would not have affected the Guidelines range, thereby failing Marcus prong 3 (effect on substantial rights).

Evidence linked material aspects of the scheme to Nigeria: co-defendant statements, money-transfer receipts, and victim shipments. That satisfied the “substantial part” criterion; thus, no plain error.

3.2.3 Ineffective Assistance

The panel followed its usual practice — per Massaro and Doe — of deferring ineffectiveness claims to a future § 2255 petition because the existing record was inadequate.

3.3 Potential Impact

• Rule 32 Practice: District judges may rely on a minimalist colloquy when counsel affirms PSR review; defense lawyers must proactively object on the record or risk plain-error hurdles on appeal.
• Loss Calculations: Minor discrepancies that do not change the Guidelines bracket will rarely meet the plain-error threshold. Expect prosecutors to continue presenting aggregate loss tables and agents’ investigative summaries.
• § 2B1.1(b)(10)(B) Scope: The Second Circuit accepts circumstantial evidence (money-transfer services, shipping records, co-conspirator statements) to deem overseas activity “substantial.” Defendants in internet-based fraud cases will find it difficult to avoid this enhancement.
• Severance Motions: Fasasi reinforces that antagonistic trial theories alone seldom justify severance so long as fair-trial rights are protected by instructions.
• Ineffectiveness Claims: The court’s refusal to decide the Strickland issue signals, yet again, that § 2255 is the preferred vehicle — prompting defendants to compile a robust post-conviction record.

4. Complex Concepts Simplified

• Plain-Error Review: A stringent four-part test applied when an issue was not preserved in the trial court. The appellant must show an (1) error, (2) obviousness, (3) effect on substantial rights (usually a different outcome), and (4) impact on the fairness/reputation of the proceedings.
• Presentence Investigation Report (PSR): A comprehensive report prepared by probation, detailing the offense, defendant’s history, Guidelines calculations, and victim impact. Rule 32(i)(1)(A) requires the judge to ensure the defendant and counsel reviewed it.
• U.S.S.G. § 2B1.1 Enhancements: Sentencing guidelines for fraud. Subsections (b)(1) (loss amount) and (b)(10)(B) (overseas conduct) increase offense levels, significantly lengthening potential sentences.
• Severance (Rule 14): Separating trials of co-defendants. Granted only if a joint trial prejudices a specific right or jury reliability; courts prefer joint trials for efficiency and consistency.
• Mutually Antagonistic Defenses: Trial strategies where co-defendants seek to exculpate themselves by inculpating the other. Rarely leads to severance without concrete prejudice.

5. Conclusion

While technically “non-precedential,” United States v. Fasasi provides salient guidance on the interplay between preservation of error, sentencing procedure, and multi-defendant trial management in complex fraud cases. Its central lessons are:

1. Defense counsel must create a clear record of objections at sentencing; silence will virtually foreclose relief on appeal under the exacting plain-error standard.
2. Minimal but direct inquiries by the sentencing judge generally satisfy Rule 32 verification obligations.
3. The Second Circuit continues to view severance as an exceptional remedy, trusting juries to compartmentalize evidence with the aid of curative instructions.
4. Circumstantial ties to foreign actors or money flows are enough to trigger the two-level overseas-conduct enhancement in 21st-century fraud schemes.
5. Claims of ineffective assistance almost always belong in § 2255 proceedings, not on direct appeal.

Practitioners should treat Fasasi as a cautionary roadmap: preserve objections early, document PSR discussions thoroughly, and recognize the evidentiary breadth courts will accept when assessing loss amounts and foreign-nexus enhancements.