408 F. App'x 477
2d Cir.
2011

Nicholas F. Pisculli, Jr., Debtor-Appellant, v. T.S. Haulers, Incorporated, Ranco Sand & Stone Corporation, Creditors-Appellees.

No. 10-1553-bk.

United States Court of Appeals, Second Circuit.

Feb. 4, 2011.

477

In re Nicholas F. PISCULLI, Jr., Debtor.

manipulation argument into account. See United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009).

Turning to Reyes-Navarette‘s argument that the district court placed undue weight on deterrence in crafting his sentence, we find this argument to be equally unavailing. The district court explicitly acknowledged the need to consider the factors under § 3553(a) and expressly noted and rejected defendant‘s other arguments pertaining to his personal circumstances. The weight given by the district court to specific and general deterrence in this case is exactly the sort of exercise of discretion that “we will not second guess.” Pope, 554 F.3d at 247 (quoting Fernandez, 443 F.3d at 34).

We have considered all of Reyes-Navarette‘s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

Joseph Sferrazza (Sarah M. Keenan, on the brief), Sferrazza & Keenan, PLLC, Melville, N.Y., for Debtor-Appellant.

Jeffrey Herzberg, Zinker & Herzberg LLP, Smithtown, N.Y., for Creditors-Appellees.

Present: WALKER, CHESTER J. STRAUB and ROBERT A. KATZMANN, Circuit Judges.

SUMMARY ORDER

Debtor-Appellant Nicholas F. Pisculli, Jr., appeals from the March 18, 2010, judgment of the district court affirming the bankruptcy court‘s denial of Pisculli‘s discharge in bankruptcy pursuant to 11 U.S.C. § 727. On appeal, Pisculli argues that (1) the bankruptcy court erroneously concluded that the proceeds of a sale of assets of Pisculli‘s closely held corporation (the “truck sale proceeds“) were the property of the bankruptcy estate and (2) he disbursed the truck sale proceeds in good faith to satisfy business debts and thus lacked the intent to defraud the creditors-appellees. We assume the parties’ familiarity with the facts and procedural history of this case.

“A district court‘s order in a bankruptcy case is subject to plenary review, ‘meaning that this Court undertakes an independent examination of the factual findings and legal conclusions of the bankruptcy court.‘” In re Cacioli, 463 F.3d 229, 234 (2d Cir.2006) (quoting In re Duplan Corp., 212 F.3d 144, 151 (2d Cir.2000)). We review the bankruptcy court‘s findings of fact for clear error and its conclusions of law de novo. Id. “[P]articularly strong deference [must be given] a [bankruptcy] court‘s findings of fact based on credibility assessments of witnesses it has heard testify.” In re Boyer, 328 Fed.Appx. 711, 716 (2d Cir.2009) (quoting United States v. Canova, 412 F.3d 331, 357 (2d Cir.2005)).

Section 727(a)(2)(B) of the Bankruptcy Code provides, in pertinent part:

The court shall grant the debtor a discharge, unless ... the debtor, with intent to hinder, delay, or defraud a creditor ..., has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed.... property of the estate, after the date of the filing of the petition[.]

11 U.S.C. § 727(a)(2)(B). Section 727(a) “must be construed strictly against those who object to the debtor‘s discharge and liberally in favor of the bankrupt.” In re Chalasani, 92 F.3d 1300, 1310 (2d Cir.1996) (internal quotation marks omitted). To prevail under Section 727(a)(2)(B), the party objecting to discharge must demonstrate that (1) the debtor (2) transferred or concealed (3) property of the bankruptcy estate (4) with the intent to hinder, delay, or defraud the creditor (5) after the filing of the bankruptcy petition. See, e.g., In re Bostick, 400 B.R. 348, 356 (Bankr.D.Conn.2009). The party objecting to discharge must establish those elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

Pisculli challenges the bankruptcy court‘s conclusions that the truck sale proceeds were property of the bankruptcy estate and that he transferred those proceeds with intent to hinder, delay, or defraud the creditors-appellees. Having carefully considered the record, we conclude that the bankruptcy court did not err in holding that the truck sale proceeds were property of the bankruptcy estate because Pisculli, as sole owner and shareholder of A.N. Leasing Corp., had full control of those proceeds. The bankruptcy court reasonably concluded also that Pisculli disbursed the truck sale proceeds with the intent to defraud the appellees because, among other things, Pisculli used those proceeds to satisfy the creditors of J & R Materials Corp., one of his wholly owned businesses, and to pay personal expenses.

We have considered Pisculli‘s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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