14-2082-cr (L)
United States v. Kent


                         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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of May, two thousand and sixteen.

Present:
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges,
            ALVIN K. HELLERSTEIN,
                        District Judge.
____________________________________________

UNITED STATES OF AMERICA,

                        Appellee,

                 v.                                            Nos. 14-2082-cr (L), 14-2874-cr (CON)

THOMAS JEFFERSON KENT, ALSO KNOWN AS SEALED
DEFENDANT 1, ALSO KNOWN AS DARYL WALKER,
SANFORD GOTTESMAN, ALSO KNOWN AS SEALED
DEFENDANT 2,

                        Defendants-Appellants,





 The Honorable Alvin K. Hellerstein, of the United States District Court for the Southern District of New
York, sitting by designation.
                                                   1
BRAD ROBINSON, ALSO KNOWN AS SEALED
DEFENDANT 3, BENO MATTHEWS, ALSO KNOWN AS
SEALED DEFENDANT 4,

                  Defendants.
____________________________________________

FOR APPELLEE:                                   PAUL M. MONTELEONI and Karl Metzner, Assistant
                                                United States Attorneys, for Preet Bharara, United
                                                States Attorney for the Southern District of New
                                                York, New York, NY, for the United States of
                                                America.

FOR DEFENDANTS-APPELLANTS:                      YUANCHUNG LEE, Federal Defenders of New York,
                                                New York, NY for Thomas Jefferson Kent.

                                    LAWRENCE H. SCHOENBACH, Law Offices of
                                    Lawrence H. Schoenbach, PLLC, New York, NY
                                    for Sanford Gottesman.
____________________________________________________

       Appeal from the United States District Court for the Southern District of New York

(Forrest, J.).   UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED,

ADJUDGED, AND DECREED that the judgment of conviction of the district court as to

Sanford Gottesman, entered on June 10, 2014, is AFFIRMED.1

       Defendant-Appellant Sanford Gottesman and Thomas Jefferson Kent were participants in

a years-long scheme by which small businesses were tricked into paying fees to secure capital

loans that did not exist. Gottesman appeals from his conviction, following a jury trial, for wire

fraud, in violation of 18 U.S.C. §§ 1343, 2, and conspiracy to commit wire fraud, in violation of

18 U.S.C. § 1349. We describe the underlying facts of this criminal case in detail in a published

opinion filed today regarding Kent’s claim on appeal. We address Gottesman’s case here and

assume familiarity with the issues on appeal.


1
  We consider Kent’s appeal from a judgment of conviction entered on July 28, 2014, in the same case
following Kent’s guilty plea, in a separate, published opinion filed today.

                                                  2
       Gottesman’s arguments—that it was improper to give the jury a conscious avoidance

instruction and that the content of the conscious avoidance instruction was erroneous—lack

merit. Charging the jury on conscious avoidance was not error because Gottesman put “the

element of knowledge . . . in dispute” and the jury was presented with sufficient evidence that

“would permit a rational juror to conclude beyond a reasonable doubt that the defendant was

aware of a high probability of the fact in dispute and consciously avoided confirming that fact.”

United States v. Ebbers, 458 F.3d 110, 124 (2d Cir. 2006) (quoting United States v. Hopkins, 53

F.3d 533, 542 (2d Cir. 1995)). There was ample evidence that Gottesman either knew he was a

participant in a criminal enterprise or consciously avoided obtaining such knowledge—such as

Gottesman’s admission that he told lies to victims about his own role with Wilshire Financial.

Reviewing the jury charge, we are also satisfied that it comports with the law of this Circuit

which, contrary to Gottesman’s argument on appeal, was not changed by the Supreme Court’s

decision in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011). See United States v.

Goffer, 721 F.3d 113, 128 (2d Cir. 2013) (“The Court [in Global-Tech] did not alter or clarify the

[conscious avoidance] doctrine . . . . Global-Tech simply describes existing case law. In so

holding, we follow other decisions in this Circuit since Global-Tech that have applied the

traditional conscious avoidance doctrine.”).

       Gottesman’s challenge based on the district court’s initial decision to exclude redacted

portions of an e-mail he believes to be exculpatory also provides no basis to vacate his

conviction. Any error in the district court’s temporary exclusion of the redacted part of the email

was harmless. See United States v. Abreu, 342 F.3d 183, 190 (2d Cir. 2003) (“[W]e will not

order a new trial because of an erroneous evidentiary ruling if we conclude that the error was

harmless.”). Because the initially excluded part of the e-mail (1) was eventually provided to the

jury, (2) was duplicative of Gottesman’s testimony at trial, and (3) at most established that
                                                3
Gottesman was unaware of the existence of one particular victim of the scheme rather than his

lack of knowledge of the scheme as a whole, we are convinced that its initial exclusion had no

“substantial and injurious effect or influence in determining the jury’s verdict.” United States v.

Dukagjini, 326 F.3d 45, 62 (2d Cir. 2002) (quoting United States v. Castro, 813 F.2d 571, 577

(2d Cir. 1987)).

       We have carefully considered all of Gottesman’s remaining arguments and find them to

be without merit. Accordingly, the district court is AFFIRMED with regard to Gottesman’s

conviction.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




                                                4
