18‐642(L) United States v. Jergensen & Ghosh

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 5th day of December, two thousand nineteen. 4 5 PRESENT: PIERRE N. LEVAL, 6 RAYMOND J. LOHIER, JR., 7 RICHARD J. SULLIVAN, 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. Nos. 18‐642‐cr(L), 15 18‐1118‐cr(CON) 16 KEITH ERIC JERGENSEN, DEBASHIS GHOSH, 17 18 Defendants‐Appellants. 19 20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 21 FOR DEFENDANT‐APPELLANT JAMES P. EGAN, Assistant 22 KEITH ERIC JERGENSEN: Federal Public Defender, for 1 Lisa A. Peebles, Federal Public 2 Defender, Syracuse, NY. 3 4 FOR DEFENDANT‐APPELLANT PAUL R. STEADMAN (Jamie L. 5 DEBASHIS GHOSH: Davis, on the brief), DLA Piper 6 LLP (US), Chicago, IL; 7 CHRISTOPHER AMOLSCH, The 8 Law Offices of Christopher 9 Amolsch, Leesburg, VA. 10 11 FOR APPELLEE: MICHAEL S. BARNETT, Assistant 12 United States Attorney, for 13 Grant C. Jaquith, United States 14 Attorney for the Northern 15 District of New York, Albany, 16 NY. 17 18 Appeals from judgments of the United States District Court for the

19 Northern District of New York (Brenda K. Sannes, Judge).

20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

21 AND DECREED that the judgments of the District Court are AFFIRMED.

22 Defendants‐appellants Keith Eric Jergensen and Debashis Ghosh were

23 convicted after a jury trial in the United States District Court for the Northern

24 District of New York (Sannes, J.) of one count of conspiracy to commit wire fraud

25 in violation of

. Jergensen was sentenced principally to a term

2 1 of 59 months’ imprisonment, and Ghosh was sentenced principally to a term of

2 57 months’ imprisonment. On appeal, they make various arguments relating to

3 the statute of limitations, the District Court’s exclusion of portions of expert

4 testimony, the procedural and substantive reasonableness of their sentences, and

5 the forfeiture orders imposed by the District Court. We assume the parties’

6 familiarity with the underlying facts and the record of prior proceedings, to

7 which we refer only as necessary to explain our decision to affirm.

8 1. Statute of Limitations

9 Ghosh argues that the jury instructions provided by the District Court

10 were erroneous because they did not require the jury to find that any “lulling”

11 communications occurred before the completion of the charged scheme or its

12 central criminal purpose. “[A]cts of concealment” that are undertaken “for the

13 purpose only of covering up” the criminal conspiracy after its central objectives

14 are completed do not extend the duration of the conspiracy. Grunewald v.

15 United States,

(1957). When one of the goals of the conspiracy

16 is to make money, “the jointly undertaken scheme continues through the

17 conspirators’ receipt of their anticipated economic benefits,” and “efforts to

3 1 secrete or launder moneys gained from a scheme for monetary gain, and to

2 safeguard them from discovery or recovery, are to be considered acts in

3 furtherance of the conspiracy, rather than mere acts of concealment of the

4 commission of crime.” United States v. Milstein,

(2d Cir. 2005).

5 “Lulling” communications—those that are “designed to lull the victims into a

6 false sense of security, postpone their ultimate complaint to the authorities, and

7 therefore make the apprehension of the defendants less likely than if no [such

8 communication] had taken place,” United States v. Lane,

, 451–52

9 (1986)—fall into this category, as they allow the conspirators to “reap . . . and

10 keep . . . economic gains from their conspiracy.” Milstein,

; see

11 United States v. Rogers,

, 1029–30 (2d Cir. 1993).

12 Here, the District Court instructed the jury that it could find that the

13 conspiracy continued past July 28, 2011—the date five years prior to the

14 indictment, see

(a) (establishing the applicable five‐year statute of

15 limitations)—if it found that part of the conspiracy involved one or both

16 defendants making lulling communications to the victim, Laurentian Aerospace

17 Corporation, after that date. The jury was also instructed that “[a]cts of

4 1 concealment done in furtherance of the main criminal objectives of the

2 conspiracy are said to continue a conspiracy,” in contrast to acts “done after

3 central objectives of the conspiracy have been attained, for the sole purpose of

4 covering up after a crime.” Ghosh App’x 1768–69. We find no error in these

5 instructions, which allowed the jury to convict only upon finding that the lulling

6 communications were part of the conspiracy to “reap and keep” Laurentian’s

7 $2.5 million. See Rogers, 9 F.3d at 1029–30.

8 Ghosh and Jergensen separately argue that there was insufficient evidence

9 for the jury to conclude that the conspiracy continued past July 28, 2011. We

10 disagree. Based on the evidence presented at trial, the jury could have properly

11 found that the conspiracy was not complete until after the September 30, 2011

12 email from Jergensen to Laurentian falsely describing the location of the $2.5

13 million. See

.

14 2. Exclusion of Portions of Expert Testimony

15 Ghosh next argues that the District Court improperly excluded portions of

16 an expert’s testimony under Federal Rule of Evidence 704(b). We need not

17 decide whether the District Court’s evidentiary decision was error, because we

5 1 conclude based our review of the record that the evidence of Ghosh’s guilt was

2 overwhelming and that any error was harmless. See United States v. Litvak,

3

(2d Cir. 2015). The defendants signed agreements requiring a

4 signature from a Laurentian representative to transfer funds from the Equity

5 Account, transferred the money to another account over which they had control

6 without Laurentian’s approval, spent the money to satisfy their own expenses

7 and obligations, misappropriated funds from another corporation, and

8 repeatedly provided false explanations to Laurentian about the location of

9 Laurentian’s funds. Given this evidence, any error did not affect the outcome of

10 the trial. See United States v. Miller,

(2d Cir. 2010).

11 3. Abuse of Trust Enhancement

12 Ghosh and Jergensen challenge the District Court’s two‐level enhancement

13 under the Sentencing Guidelines for abusing a position of trust in a way that

14 significantly facilitated the commission or concealment of offense of conviction.

15 U.S. Sentencing Guidelines Manual § 3B1.3 (U.S.S.G.); see United States v. Allen,

16

, 166–67 (2d Cir. 2000); United States v. Castagnet,

, 60–62

17 (2d Cir. 1991). “[A] position of trust is held by one who was accorded discretion

6 1 by the victim and abused a position of fiduciary or quasi‐fiduciary status,” and

2 “[w]hether a position is one of ‘trust’ within the meaning of § 3B1.3 is to be

3 viewed from the perspective of the offense victims[.]” United States v.

4 Huggins,

(2d Cir. 2016) (quotation marks omitted). We

5 conclude that it was not error for the District Court to apply the two‐level

6 enhancement for abuse of trust in light of the following evidence: Jergensen

7 was given the discretion to set up the Equity Account at the center of this case,

8 but no Laurentian representatives were signatories to the account during the

9 relevant time period, a fact known to Jergensen and Ghosh but not to Laurentian

10 representatives; Laurentian did not receive any monthly statements until March

11 2011, well after the defendants began transferring money out of the Equity

12 Account; and Jergensen agreed that he was a fiduciary of the $2.5 million. See

13 Ghosh App’x 1482.

14 4. Minor Role Adjustment

15 The District Court determined that Ghosh was not entitled to a two‐level

16 decrease for being a “minor participant in [the] criminal activity.” U.S.S.G.

17 § 3B1.2(b). Ghosh contends that he was entitled to the decrease because he was

7 1 less culpable than Jergensen. But the parties stipulated that Jergensen and

2 Ghosh executed and approved each transfer out of the Equity Account. Even if

3 Jergensen had more contact than Ghosh did with the Laurentian victims and

4 with Selippos Technical Limited, a company with which Verdant—the firm

5 Ghosh and Jergensen ran as Co‐Chief Executive Officers—agreed to authorize a

6 transfer of the $2.5 million into an account controlled by Selippos, “[a] reduction

7 will not be available simply because the defendant played a lesser role than his

8 co‐conspirators; to be eligible for a reduction, the defendant’s conduct must be

9 ‘minor’ . . . as compared to the average participant in such a crime.” United

10 States v. Rahman,

(2d Cir. 1999); see United States v. Algahaim,

11

(2d Cir. 2016). We find no error in the District Court’s

12 conclusion.

13 5. Substantive Unreasonableness

14 Attacking the loss table in section 2B1.1(b) of the Guidelines, Ghosh and

15 Jergensen also insist that their sentences were substantively unreasonable. See

16 Algahaim,

. Here, however, the District Court recognized that

17 “loss can be an imperfect measure of the seriousness of an offense,” stated that it

8 1 understood that it could vary from the Guidelines on that basis, and then denied

2 a variance. Jergensen App’x 271–72. For these reasons, we reject the argument

3 that the sentences were substantively unreasonable.

4 6. Forfeiture

5 Finally, Ghosh and Jergensen argue that, as a result of Honeycutt v. United

6 States,

(2017), the District Court erred in holding them jointly and

7 severally liable for forfeiture of $2.5 million. In Honeycutt, the Supreme Court

8 stated that

(a)’s “limitation of forfeiture to tainted property

9 acquired or used by the defendant, together with the plain text of § 853(a)(1),

10 foreclose joint and several liability for co‐conspirators.”

.

11 However, this principle applies only to proceeds that a defendant did not himself

12 acquire. See United States v. Tanner,

, 67–68 (2d Cir. 2019). In this

13 case, both Ghosh and Jergensen approved every transfer out of the Equity

14 Account to an account controlled by Verdant, and thus each acquired or used the

15 tainted funds. Their reliance on Honeycutt is therefore misplaced.1

1We note that although the Government’s brief stated that the forfeiture orders do not refer to joint and several liability, it conceded at oral argument that the District Court ordered that Jergensen and Ghosh were jointly and severally liable

9 1 We have considered Jergensen and Ghosh’s remaining arguments and

2 conclude that they are without merit. For the foregoing reasons, the judgments

3 of the District Court are AFFIRMED.

4 FOR THE COURT: 5 Catherine O=Hagan Wolfe, Clerk of Court

for the forfeiture amount. We agree with the parties’ shared understanding.

10