10-4025-cr (L)
United States v. Ingram

                             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 27th day of July, two thousand twelve.

Present:       PIERRE N. LEVAL,
               ROSEMARY S. POOLER,
               CHRISTOPHER F. DRONEY
                           Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                     Appellee,

                          -v.-                                             10-4025-cr (Lead)
                                                                           11-1141-cr (Con)
ROBERT INGRAM, NOEMI DODAKIAN,                                             11-2237-cr (Con)
AKA EMI DODAKIAN, CHONG SHING WU

                                     Defendants-Appellants,

OLIVIA JEANNE BOWEN, DAVID NORMAN,
AKA JIM NORMAN,

                                     Defendants.


Appearing for Appellant Noemi Dodakian: Roger Stavis, Gallet Dreyer & Berkey, LLP (Adam
                                        Felsenstein, on the brief), New York, N.Y.

Appearing for Appellant Chong Shing Wu: Robert J. Del Col, Smithtown, N.Y.
Appearing for Appellant Robert Ingram:       Arza Feldman, Feldman & Feldman, Uniondale,
                                             N.Y.; Robert Ingram, pro se

Appearing for Appellee:                      Howard S. Master, Assistant United States
                                             Attorney, Southern District of New York (Preet
                                             Bharara, United States Attorney, Brent S. Wible,
                                             Assistant United States Attorney, on the brief), New
                                             York, N.Y.

      Appeal from three judgments of the United States District Court for the Southern District
of New York (Sand, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of said District Court are and they hereby are
AFFIRMED.

       This consolidated appeal arises out of a prosecution on an indictment alleging two counts
of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. Defendant-appellant
Robert Ingram appeals from a judgment of October 4, 2010, sentencing him principally to 144
months’ imprisonment following his plea of guilty to count two of the indictment. Defendant-
appellant Noemi Dodakian appeals from a judgment of conviction, entered on March 21, 2011,
on both counts of the indictment, for which she was sentenced principally to 95 months’
imprisonment. Defendant-appellant Chong Shing Wu appeals from a judgment of conviction on
count two of the indictment and from his sentence of principally 85 months’ imprisonment,
entered on May 24, 2011. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         We begin by addressing the claims of defendant-appellant Robert Ingram. Ingram
argues, first, that his sentence was both procedurally and substantively unreasonable. We review
the sentence for abuse of discretion. E.g., United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (en banc). Ingram contends that the district court committed procedural error by relying
upon improper grounds in imposing the “vulnerable victim” enhancement under subsection
3A1.1(b)(1) of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) because, in
concluding that victim Kathryn Garstin was “vulnerable,” the district court commented that it
believed that all victims of advance fee schemes are vulnerable victims. See United States v.
McCall, 174 F.3d 47, 50 (2d Cir. 1998) (counseling against broad generalizations about
“vulnerable victims”). We need not decide whether this remark constituted error because the
district court explicitly found the essential facts warranting the enhancement: namely, that
Ingram had solicited money from Garstin even though he knew she had cancer. Id. Contrary to
Ingram’s contention, there is no requirement that a defendant “select the victim because of his or
her vulnerability—it is sufficient that he knew or should have known of this quality when
deciding to go ahead with the crime.” Id. (emphasis added). Moreover, we are not persuaded
that the fact that Garstin was healthy the first time Ingram solicited money from her has any
bearing on the applicability of the enhancement; Ingram decided to “go ahead” with his crime
each additional time he solicited money from Garstin, not simply the first time. Thus, even if we

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were to identify error, it would be harmless because the district court’s individualized findings
were sufficient to support the enhancement. See Cavera, 550 F.3d at 197. Since any error would
be harmless, we affirm application of the enhancement.

        Ingram next argues that his sentence was substantively unreasonable because the court
failed to consider each of Ingram’s three arguments for a below-Guidelines sentence. However,
sentencing courts need not “address every argument the defendant has made.” United States v.
Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007). Moreover, the sentencing transcript shows that
the district court expressly considered each of Ingram’s three arguments.

        Ingram’s final claim, presented in a separate pro se filing, is that trial counsel rendered
ineffective assistance by failing to move for dismissal under Younger v. Harris, 401 U.S. 37
(1971), because an Arizona administrative proceeding was pending against Ingram at the time
the federal prosecution commenced. Younger generally requires federal courts to “abstain from
taking jurisdiction over federal constitutional claims that involve or call into question ongoing
state proceedings” when an important state interest is implicated in the state proceedings and the
state proceedings afford the federal plaintiff an adequate opportunity for judicial review of the
federal constitutional claims. Diamond “D” Constr. Corp. v. N.Y.S. Dep’t of Labor, 282 F.3d
191, 198 (2d Cir. 2002). Here, Younger plainly did not apply. The federal prosecution did not
seek to enjoin the state proceeding, nor did it raise any constitutional claims regarding that
proceeding. Moreover, the state proceeding did not afford the federal plaintiff an adequate
opportunity for judicial review insofar as the state proceeding did not vindicate the interest of the
United States in prosecuting federal crimes. Ingram’s argument is thus meritless because
counsel’s failure to move for dismissal cannot have affected the result of the criminal
proceeding. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

        We next consider the claims of defendant-appellant Noemi Dodakian. Dodakian first
contends that the district court erred in denying her motion to suppress e-mails seized pursuant to
a search warrant that she claims was unconstitutionally overbroad. See U.S. Const. amend. IV;
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). We disagree. Without reaching the
question of whether the district court erred in concluding that the warrant complied with the
particularity requirement, we affirm because the court correctly concluded that the “good faith”
exception to the exclusionary rule applied. See United States v. Leon, 468 U.S. 897, 922 (1984);
United States v. Bowen, 689 F. Supp. 2d 675, 684-85 (S.D.N.Y. 2010).

        Dodakian next argues that the government’s use of Dodakian’s Securities Dealers license
application for impeachment purposes violated Rule 608(b) of the Federal Rules of Evidence.
This claim has no merit because the license application was admitted to impeach Dodakian by
contradiction, whereas Rule 608(b) addresses extrinsic evidence admitted to impeach by
demonstrating character for untruthfulness. See Fed. R. Evid. 608(b). Admission of the
application did not even implicate, let alone violate, Rule 608(b) because the application had no
bearing on Dodakian’s character for untruthfulness.

       Turning to the claims of defendant-appellant Chong Shing Wu, we first address Wu’s
contention that the trial evidence was insufficient to support his conviction. In considering a

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sufficiency claim, “we view the evidence in the light most favorable to the government, drawing
all reasonable inferences in its favor, and reverse only if no rational factfinder could have found
guilt beyond a reasonable doubt.” United States v. Carlo, 507 F.3d 799, 801 (2d Cir. 2007). Wu
fails to clear this high bar. Indeed, both victim testimony and documentary evidence supported
the jury’s finding that Wu knowingly joined Ingram and took action in furtherance of the
fraudulent scheme, including making intentional misrepresentations to potential “investors.”
Wu’s argument amounts to a complaint that the jury did not accept his good-faith defense, but
“[w]e will not overturn a jury verdict merely because an exculpatory account is plausible.”
United States v. Downing, 297 F.3d 52, 56-57 (2d Cir. 2002) (internal quotation marks and
alteration omitted).

        Wu argues, second, that his counsel rendered ineffective assistance in several respects.
This court has expressed a “baseline aversion to resolving ineffectiveness claims on direct
review,” United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000) (internal quotation marks
omitted), at least where the record on appeal is incomplete or inadequate for adjudication of the
claim. Because the record below is insufficiently developed to allow adequate review of Wu’s
claims, we decline to review them in this direct appeal.

         Wu’s third challenge is to the court’s imposition at sentencing of offense-level increases
under subsections 2B1.1(b)(2)(B) and 2B1.1(b)(1)(I) of the Guidelines. Wu argues that the
district court erred in finding that it was reasonably foreseeable to Wu that his offense: (1)
caused a loss of between $1 and $2.5 million, and (2) involved 50 or more victims. We review
the court’s findings for clear error. See United States v. Rosa, 17 F.3d 1531, 1550 (2d Cir.
1994). The court’s findings were based on permissible inferences drawn from the record
evidence. Wu’s arguments on appeal are unavailing because Wu asserts only that the court
should have drawn different inferences but does not adequately explain why the inferences the
court did draw were impermissible. We therefore affirm because “[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985).

        The final issue on appeal, raised by both Dodakian and Wu, is whether the court erred in
giving the jury a “no ultimate harm” instruction.1 See United States v. Rossomando, 144 F.3d
197, 202 (2d Cir. 1998) (holding that court erred in giving “no ultimate harm” instruction


       1
        The disputed instruction was as follows:

                There is another consideration to bear in mind in deciding whether or not the defendant you are
                considering acted in good faith. If that defendant agreed to participate in the scheme to defraud,
                then a belief by that defendant, if such belief existed, that ultimately everything would work out so
                that no one would lose any money does not require a finding by you that the defendant acted in
                good faith. If the defendant you are considering participated in the scheme for the purpose of
                causing some financial or property loss to another, no amount of that defendant’s honest belief that
                the scheme would eventually cause no loss or make a profit for the investors will excuse
                fraudulent acts or false representations by that defendant.

       Tr. 1278-80.

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because lack of proper predicate made charge too confusing for jury and potentially vitiated
defendant’s good-faith defense).

        We review Dodakian’s preserved objection de novo, see United States v. Pimentel, 346
F.3d 285, 301-02 (2d Cir. 2003), and conclude that there was a proper predicate for the
instruction. While Dodakian testified that she believed in the representations she made to
investors and that she believed the funds would yield returns, the record provides evidence that
Dodakian deliberately lied about, inter alia, the security of the investments and the timing of the
payments to induce investors to part with their money. The instruction was therefore appropriate
to ensure that jurors would not acquit if they found that Dodakian had intended to deceive
investors, but credited her testimony that she believed the funds would ultimately pay out. Cf.
United States v. Ferguson, 676 F.3d 260, 280 (2d Cir. 2011).

        We review Wu’s claim only for plain error because he failed to object to the instruction
during the charging conference. See United States v. Al Kassar, 660 F.3d 108, 126 (2d Cir.
2011). Without reaching the question of whether the district court erred in giving the instruction,
we affirm because there is no binding precedent from this court holding the instruction erroneous
in an analogous factual setting; as such, any error could not have been “plain.” See United States
v. Whab, 355 F.3d 155, 158 (2d Cir. 2004). Only in Rossomando have we ever concluded that a
“no ultimate harm” instruction was given in error, and our reasoning in Rossomando does not
apply to Wu’s case. The instruction is predicated on a distinction between immediate and
ultimate harm that was simply nonexistent under the unique facts of Rossomando, and it was for
that reason that we concluded that giving the instruction constituted prejudicial error in
Rossomando. See 144 F.3d at 201 n.5, 202. Here, in contrast, the evidence did admit of the
requisite distinction between immediate harm (the misrepresentations made to investors to
deprive them of the short-term use of their money) and ultimate harm (the permanent deprivation
of investors’ money). As such, the instruction was not plainly erroneous.

       We have reviewed the remainder of appellants’ arguments and found them to be without
merit. Accordingly, the judgments of the district court hereby are AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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