09-3005-cr (L)
United States v. Persaud

                                    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 “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 28th day of February, two thousand eleven.

PRESENT:

          JOSÉ A. CABRANES,
          ROSEMARY S. POOLER,
          REENA RAGGI,
                 Circuit Judges.


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UNITED STATES OF AMERICA,

                               Appellee,

          v.                                                                               Nos. 09-3005-cr (L),
                                                                                           09-3019-cr (con),
                                                                                           09-4935-cr (con)

SHAWN PERSAUD, ESTHER PERSAUD, and RONALD
PERSAUD,

                               Defendants-Appellants,

PHILIP RECHNITZER,

                               Defendant.


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FOR APPELLANTS:                        JAMES E. LONG, Albany, NY, for appellant Shawn Persaud.

                                       DENNIS B. SCHLENKER, Albany, NY, for appellant Esther
                                       Persaud.

                                       DONALD T. KINSELLA, Albany, NY, for appellant Ronald
                                       Persaud.


FOR APPELLEE:                      RAJIT S. DOSANJH, Assistant United States Attorney (Richard
                                   S. Hartunian, United States Attorney, on the brief, and Thomas
                                   A. Capezza, of counsel), Office of the United States Attorney,
                                   Northern District of New York, Syracuse, NY.
       Appeal from a judgment of conviction entered in the United States District Court for the
Northern District of New York (Thomas J. McAvoy, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the District Court be AFFIRMED.

         On June 27, 2007, a federal grand jury in the Northern District of New York returned a
third superseding indictment against five defendants, Philip Rechnitzer, Ronald Persaud, Esther
Persaud, Indranie Persaud, and Shawn Persaud. Ronald Persaud, his ex-wife, Esther, and Philip
Rechnitzer were each charged with one count of conspiracy to commit wire fraud as well as
numerous substantive counts of wire fraud. Ronald Persaud and his present wife, Indranie, were
charged with two counts of mail fraud, and Esther Persaud was charged with one count of making
false statements in a bankruptcy hearing. Finally, all defendants, including Ronald and Esther’s son,
Shawn, were charged with one count of conspiracy to launder monetary instruments.

        The government’s basic theory of the case is that Ronald and Esther Persaud falsely held
themselves out to be officers of various financial institutions who could arrange to provide funding
for various investment projects. Rechnitzer (in addition to other, unindicted co-conspirators) would
identify investors looking for commercial funding and then ask these investors to provide “advance
fees” to Ronald Persaud on the false promise that substantial commercial loans would be
forthcoming. As part of the scheme, investors were provided with forged term sheets and bank
commitment letters. In all, this fraudulent enterprise generated $1.6 million in advance fees without
providing a dollar of commercial funding. Furthermore, the government alleged that all
defendants—including Shawn and Indranie Persaud—participated in a conspiracy to launder these
proceeds through a series of financial transactions.

       Philip Rechnitzer and Indranie Persaud pleaded guilty pursuant to plea agreements. The
government then proceeded to trial against Ronald, Esther, and Shawn Persaud. A jury found
Ronald and Esther Persaud guilty of all charges against them, save for one count of wire fraud.
Shawn Persaud was found guilty of conspiracy to launder monetary instruments. The appeals of
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Shawn Persaud, Esther Persaud, and Ronald Persaud have been consolidated for our review.1
Assuming the parties’ familiarity with the underlying facts and procedural history of the case, we will
address the claims of each appellant in turn.

        (1) Shawn Persaud

        On appeal, Shawn Persaud (“Shawn”) raises four challenges to his conviction for conspiracy
to launder monetary instruments.

         First, Shawn argues that he was substantially prejudiced by the District Court’s denial of his
motion for a severance. Whether to grant or deny a severance motion is “committed to the sound
discretion of the trial judge.” United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989). “The
district court’s exercise of that discretion is virtually unreviewable.” United States v. Salameh, 152 F.3d
88, 115 (2d Cir. 1998) (quotation marks omitted). Accordingly, a district court’s denial of a
severance motion under Federal Rule of Criminal Procedure 14 will be reversed “only if a defendant
can show prejudice so severe that his conviction constituted a miscarriage of justice, and that the
denial of his motion constituted an abuse of discretion.” Id. (quotation marks omitted). As the
Supreme Court has further explained, “a district court should grant a severance . . . only if there is a
serious risk that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States,
506 U.S. 534, 539 (1996).

        Shawn contends that he wanted to testify in his own defense, but was improperly forced to
choose between exercising this trial right and fulfilling the “moral obligation of blood, kinship and
loyalty by a son to his mother and father” since his own testimony might have implicated his
parents. Shawn provides no evidence that this asserted “moral obligation” is legally cognizable, so
we cannot say that the District Court erred in denying Shawn’s motion for a severance, much less
that the decision of the District Court constituted an abuse of discretion.

         Shawn’s second argument is that the government presented insufficient evidence at trial to
sustain his conviction for conspiracy to launder monetary instruments. More specifically, Shawn
argues that there was no proof, circumstantial or otherwise, that he knew that the financial
transactions he participated in were designed, in whole or in part, to conceal the proceeds of
unlawful activity. We review a challenge to the sufficiency of the evidence de novo. United States v.
Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997).
         “In challenging the sufficiency of the evidence to support his conviction, a defendant bears a
         heavy burden.” United States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003). In considering
         such a challenge, we must credit every inference that could have been drawn in the


        1
            We have unconsolidated the appeal of Philip Rechnitzer, No. 10-0598-cr (con).
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         government’s favor, and affirm the conviction so long as, from the inferences reasonably
         drawn, the jury might fairly have [reached the conclusion of] guilt beyond a reasonable
         doubt. “We defer to the jury’s determination of the weight of the evidence and the
         credibility of the witnesses, and to the jury’s choice of the competing inferences that can be
         drawn from the evidence.” United States v. Morrison, 153 F.3d 34, 39 (2d Cir. 1998). [Items]
         of evidence must be viewed not in isolation but in conjunction, and the conviction must be
         upheld if “any rational trier of fact could have found the essential elements of the crime
         beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

United States v. Reifler, 446 F.3d 65, 94-95 (2d Cir. 2006) (citations omitted). See generally Jackson, 443
U.S. 307.

          Upon examination of the record, we conclude that the evidence was sufficient to support the
jury’s guilty verdict. In particular, the government presented evidence that Shawn Persaud attended
a meeting between Ronald Persaud and his victims, during which the victims accused Ronald
Persaud of taking their advance fees without ever intending to secure the promised commercial
funding. Additionally, the government established that hundreds of thousands of dollars in advance
fees were transferred to bank accounts under Shawn’s control, yet Shawn failed to report any of this
income in his tax filings. Finally, the jury also heard evidence that Shawn himself would sometimes
engage in multi-layered transactions in order to make routine purchases. When all of this evidence is
taken together, a jury could fairly conclude that Shawn (1) was aware of the fraudulent scheme being
perpetrated by his parents, and (2) knew that he was receiving substantial proceeds from that illegal
activity.

         Shawn’s third argument is that his money laundering conviction cannot stand, as a matter of
law, in light of the Supreme Court’s opinion in United States v. Santos, 553 U.S. 507 (2008). In Santos,
a fractured disposition of the Court held that, at least for certain underlying crimes, the word
“proceeds” in the money laundering statute (18 U.S.C. § 1956) means net income (or profits) rather
than gross income. See Santos, 553 U.S. at 523-28 (Stevens, J., concurring).2

       But Santos is of no help to Shawn. First, the jury was specifically instructed that the term
“proceeds” means “illegal profits” and that it “does not mean gross receipts.” Furthermore, the
government introduced plenty of evidence that the money laundering transactions in question
involved “profits” from the underlying fraud. In particular, the jury heard evidence of how the
Persauds used layered financial transactions to purchase personal items such as a car or a home.




         2
            Following Santos (and the indictment in the instant case), Congress amended the statute to include “gross
receipts” as part of the definition of “proceeds.” Pub. L. No. 111-21, § 2(f)(1), 123 Stat. 1618 (2009) (codified at 18
U.S.C. § 1956(c)(9)).
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        Finally, Shawn contends that he was denied a fair trial based on remarks made by the
prosecutor in the rebuttal summation. In relevant part, the prosecutor stated: “Ladies and
gentlemen, there comes a time in every case when a lawyer has to stop, let go and say to the jury, I
trust you. That time is now in this case. I appreciate your time. Thank you and I trust you.”

        We review the denial of a motion for a mistrial for abuse of discretion. United States v.
Deandrade, 600 F.3d 115, 118 (2d Cir. 2010). See generally Sims v. Blot, 534 F.3d 117, 132 (2d Cir.
2008) (“A district court has abuse[d] its discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be
located within the range of permissible decisions.” (quotation marks omitted)). In setting forth a
prosecutorial misconduct claim based on remarks made during the course of trial, a defendant bears
“a heavy burden, because the misconduct alleged must be so severe and significant as to result in the
denial of [his] right to a fair trial.” United States v. Locasio, 6 F.3d 924, 945 (2d Cir. 1993).
Furthermore, “a court should not lightly infer that a prosecutor intends an ambiguous remark to
have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637,
647 (1974).

        We agree with the District Court’s conclusion that “what [the prosecutor] really was saying is
he’s putting the matter in the jury’s hands and let them decide the case.” The prosecutor did not
“vouch” for any of his witnesses or inflame the passions of the jury during his closing remarks.
Certainly, the prosecutor’s remarks did not have the effect of denying Shawn a fair trial.

         (2) Esther and Ronald Persaud

        Esther and Ronald Persaud also raise multiple challenges to their respective convictions. We
have already dealt with their arguments concerning alleged prosecutorial misconduct and Santos in
our consideration of Shawn’s appeal. All that remains, then, is Esther and Ronald’s argument for
why their motion for a severance should have been granted.

        Unlike their son Shawn, Esther and Ronald do not claim that joinder improperly forced
them to choose between invoking their constitutional right to testify in their own defense and their
sense of family loyalty. Instead, they contend they were substantially prejudiced by their son’s
“antagonistic defense.” While Shawn’s defense was not necessarily antagonistic to the cause of his
parents—in other words, Shawn was not essentially required to demonstrate his parents’ guilt in
order to exonerate himself—it is true that, during the course of the trial, Shawn’s counsel did make
certain comments to the jury portraying her client as a victim of his parents.3 But an antagonistic


         3
           For instance, in her closing argument, Shawn’s counsel told the jury, “I don’t think any of us had to come to
terms with the stark realities and fallibility of our parents quite to the degree of Shawn Persaud. What a slap in the face
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defense is not prejudicial per se. Zafiro, 506 U.S. at 538. Again, “a district court should grant a
severance . . . only if there is a serious risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” Id. at 539.

         To the extent that some statements made by Shawn’s counsel had the ability to unduly
influence the jury, the District Court properly advised the jury not to treat statements by counsel as
“evidence” in this case. Furthermore, the jury’s verdict is supported by overwhelming evidence. We
thus have no reason to believe that the District Court’s refusal to grant the motion for a severance
prevented the jury from making a reliable judgment about the guilt or innocence of Esther and
Ronald Persaud. Accordingly, we cannot conclude that the District Court erred, much less abused
its discretion, in denying this motion.

        Lastly, we find Ronald Persaud’s claim that his sentence of 188 months’ imprisonment was
both procedurally and substantively unreasonable to be without merit. Ronald first argues that the
his sentence is procedurally unreasonable because the District Court erred in applying the two level
“sophisticated means” enhancement of § 2B1.1(b)(9)(C) of the United States Sentencing Guidelines
(“Guidelines”). We review an application of the Guidelines de novo. United States v. Loudon, 385 F.3d
795, 797 (2d Cir. 2004). The commentary to the Guidelines defines sophisticated means as
“especially complex or especially intricate offense conduct pertaining to the execution of
concealment of an offense.” U.S.S.G. § 2B1.1(b)(9)(C) cmt. n.8(b). In light of the forged bank
documents, fictitious entities, corporate shells, and offshore financial accounts used by Ronald in
perpetrating this fraud, we have no trouble concluding that the sophisticated means enhancement
was properly applied.

        Ronald also argues that his sentence is substantively unreasonable, even though it reflects the
low end of the applicable Guidelines range. While not presumptively reasonable, United States v.
Eberhard, 525 F.3d 175, 179 (2d Cir. 2008), “in the overwhelming majority of cases, a Guidelines
sentence will fall comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). This is so
because
        by the time an appeals court is considering a within-Guidelines sentence on review, both the
        sentencing judge and the Sentencing Commission will have reached the same conclusion as to
        the proper sentence in the particular case. That double determination significantly increases
        the likelihood that the sentence is a reasonable one.




as he sat through this trial. What a betrayal. How could they?” Later on, counsel defended her client by saying,
“[Shawn] was lied to and manipulated by the very people that were supposed to protect him.”
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Rita v. United States, 551 U.S. 338, 347 (2007). Having reviewed Ronald’s arguments, we conclude
that the sentence imposed by the District Court is reasonable given the scale and sophistication of
Ronald’s fraudulent scheme, as well as the numerous victims who were harmed.

                                         CONCLUSION

       We have considered all of appellants’ arguments and find them to be without merit.
Accordingly, the judgment of the District Court is AFFIRMED.


                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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