09-1045-cr(L), 09-3118-cr(Con)
USA v. Siembida (Price)

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT , A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SU M M A R Y O R DER ”). A PARTY CITING A SUM M ARY
ORDER M UST 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 Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day
of April, two thousand ten.

Present:
         PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
               Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                    Nos. 09-1045-cr(L), 09-3118-cr(Con)

WAYNE PRICE, GEORGE SIEMBIDA,

         Defendants-Appellants.
________________________________________________

 For Defendant-Appellant Wayne Price: LARRY H. KRANTZ, Krantz & Berman, New York,
                                      NY
 For Defendant-Appellant George           SETH C. FARBER (James P. Smith III, Jeffrey J.
 Siembida:                                Amato, Matthew L. DiRisio, of counsel), Dewey &
                                          LeBoeuf LLP, New York, NY
 For Appellee:                              ARIANNA R. BERG, Assistant United States Attorney
                                            (Katherine Polk Failla, Assistant United States
                                            Attorney, of counsel), for Preet Bharara, United
                                            States Attorney, Southern District of New York,
                                            New York, NY


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

(Castel, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgments of the district court are AFFIRMED.

        Defendants-Appellants Wayne Price and George Siembida appeal from judgments of the

United States District Court for the Southern District of New York (Castel, J.), entered April 8,

2009 and July 15, 2009, respectively, convicting them both of conspiracy to commit wire fraud

and of one count of substantive wire fraud. We assume the parties’ familiarity with the facts,

procedural history, and specification of issues on appeal.

        Both defendants challenge the sufficiency of the evidence on Count Two of the

indictment. Neither defendant, however, has met the “heavy burden” of succeeding on such a

challenge. See United States v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008). In light of the

stipulation indicating that an e-mail sent on August 20, 2004 from Siembida’s account traveled via

Pennsylvania, and in the absence of any evidence that Siembida altered his e-mail account settings

between August 17, 2004 and August 20, 2004, a rational jury could conclude beyond a

reasonable doubt that the e-mail sent on August 17, 2004 on which Count Two was based

traveled in interstate commerce. Price argues that the evidence cannot support his conviction on

Count Two because there is no evidence that the e-mail was a part of, or in furtherance of, the


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conspiracy between himself and Siembida or that he could have reasonably foreseen that the e-

mail would be sent. This argument also fails. The government proved a continuing conspiracy

between Siembida and Price under which one or the other would conduct negotiations with a

victim-customer, offering to sell the victim a bogus Allianz surety bond. When transactions

initiated by Siembida advanced to the point of issuance of the bogus bond, Siembida would

arrange to have the victim pay the premium to Price, because Siembida had no legal authority to

receive insurance premiums. Notwithstanding that Siembida’s negotiations on the Count Two

transaction never reached the point at which the victim would make a premium payment to Price

in the customary manner, the evidence was such that a jury could reasonably conclude that

Siembida’s negotiation with Agent Keeley was a preliminary step in a transaction that would

eventually have involved Price had it advanced to fruition and that the e-mail to Keeley was

therefore in furtherance of the already existing conspiracy with Price. Although Price had no

knowledge of this particular e-mail, it was foreseeable to Price that his conspiracy with Siembida

might involve such e-mails. See United States v. Zichettello, 208 F.3d 72, 105 (2d Cir. 2000);

United States v. Bortnovsky, 879 F.2d 30, 36-37 (2d Cir. 1989). Price’s additional argument that

Siembida was attempting to steer Agent Keeley toward a legitimate financial instrument fails in

light of the fact that a fraudulent sample Allianz bond was attached to the August 17 e-mail.

       We need not pause long over Siembida’s argument that interpreting the wire fraud statute

as applying to defendants who did not intend for their communications to travel in interstate

commerce would give it a wider sweep than is permissible given the limits of Congress’s power

under the Commerce Clause. We have previously held that the interstate requirement of the

statute is jurisdictional and that “there is no mens rea requirement as to the purely jurisdictional


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element of interstate communication under the wire fraud statute.” United States v. Blackmon,

839 F.2d 900, 907 (2d Cir. 1988). To the extent that Siembida is arguing that we must reconsider

this holding under United States v. Lopez, 514 U.S. 549 (1995), or United States v. Morrison,

529 U.S. 598 (2000), he points to no language in either case that indicates that we should read a

constitutional mens rea requirement into the wire fraud statute. Rather, Congress is permitted “to

regulate and protect the instrumentalities of interstate commerce . . . even though the threat may

come only from intrastate activities.” Lopez, 514 U.S. at 558.

       Both defendants argue that the district court abused its discretion in admitting evidence of

their past criminal convictions under Federal Rule of Evidence 404(b). Assuming arguendo that

the district court did abuse its discretion in this regard, however, any error was harmless in light

of the overwhelming evidence indicating that both defendants knew, or consciously avoided

learning, that the Allianz Indonesia bonds were fraudulent, when their knowledge was the sole

contested issue at trial. For example, Price continued peddling the bonds even after he and his

attorney received no fewer than three letters from counsel for a U.S. subsidiary of Allianz advising

him that the bonds were fake. Siembida, for his part, stated in a post-arrest interview that he

continued to take fees in exchange for providing Allianz Indonesia bonds “knowing that no loan

had funded using these bonds and that they could not be verified.” J.A. 1149.

       Nor did the district court abuse its discretion in precluding Siembida from cross-examining

witness Peter Tsou about a civil complaint filed against him in 2003. While the Due Process

Clause of the Fifth Amendment and the Compulsory Process and Confrontation Clauses of the

Sixth Amendment guarantee every defendant the right to present a meaningful defense, which

includes cross-examining witnesses, United States v. Stewart, 433 F.3d 273, 310 (2d Cir. 2006),


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these rights do not trump the trial court’s discretion to place proper restrictions on the

introduction of evidence, id. at 311. In light of the fact that the civil case against Tsou settled

without any finding by a court that he had committed wrongdoing, the district court did not abuse

its discretion in concluding that cross-examination on this point risked unduly prejudicing and

confusing the jury. Moreover, to the extent that evidence of the 2003 civil action might have been

probative of Tsou’s untruthfulness, it was cumulative in light of the fact that Siembida was

permitted to cross-examine Tsou regarding his prior conviction for passing a bad check.

       Given that defendants conceded that the Allianz bonds were fraudulent and contested only

their knowledge of the bonds’ falsity, and given that the evidence showed that they received

numerous indications from clients and from Allianz-related entities that the bonds were fake,

Siembida’s argument that the district court erred in giving a conscious avoidance instruction to

the jury is entirely without merit. See United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir.

2003) (stating that a conscious avoidance instruction is proper “(i) when a defendant asserts the

lack of some specific aspect of knowledge required for conviction, and (ii) the appropriate factual

predicate for the charge exists, i.e., the evidence is such that a rational juror may reach the

conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the

fact in dispute and consciously avoided confirming that fact” (internal citation and quotation

marks omitted)).

       We have considered the defendants’ other arguments and find them to be without merit.

For the foregoing reasons, we AFFIRM the judgments of the district court.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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