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United States v. Binday

United States Court of Appeals for the Second Circuit

April 13, 2015, Argued; October 26, 2015, Decided

Docket No. 14-2809-cr; 14-2832-cr; 14-2873-cr

Opinion

 [*564]  Gerard E. Lynch, Circuit Judge:

Defendants Michael Binday, James Kevin Kergil, and Mark Resnick appeal from judgments of conviction in the United States District Court for the Southern District of New York (Colleen McMahon, Judge) for conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349, mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343. Kergil and Resnick were also convicted of conspiracy to obstruct justice through destruction of records, 18 U.S.C. § 1512(k). The convictions arise from an insurance fraud scheme whereby defendants, who were insurance brokers, induced insurers to issue life insurance policies that defendants sold to third-party investors, by submitting fraudulent applications indicating that the policies were for the applicants' personal estate planning.  [*565]  Defendants argue primarily that the government did not prove that they contemplated harm to the insurers that is cognizable under the mail and wire fraud statutes. That basic argument takes several forms, including a sufficiency of the evidence challenge, a constructive [**4]  amendment claim, and a jury instruction challenge. Defendants also contend that their sentences are procedurally unreasonable because the district court used an erroneous loss amount in calculating their Guidelines sentence ranges. Additionally, Resnick and Kergil challenge their obstruction of justice convictions on various grounds.

We conclude that there was sufficient evidence that defendants contemplated a cognizable harm under the mail and wire fraud statutes; that the indictment was not constructively amended because the allegations in the indictment and the government's proof at trial substantially correspond; and that some aspects of the defendants' challenge to the jury instruction are waived, while the remainder fail on the merits. We reject defendants' challenges to their sentences and to the obstruction of justice convictions.

Accordingly, for the reasons given herein, we affirm the judgments of conviction and remand the case for the limited purpose of revising the restitution amount as agreed by the parties.

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804 F.3d 558 *; 2015 U.S. App. LEXIS 18671 **

UNITED STATES OF AMERICA, Appellee, — v. — MICHAEL BINDAY, aka Sealed Defendant 1, JAMES KEVIN KERGIL, aka Sealed Defendant 2, MARK RESNICK, aka Sealed Defendant 3, Defendants-Appellants.

Subsequent History: US Supreme Court certiorari denied by Binday v. United States, 136 S. Ct. 2487, 195 L. Ed. 2d 823, 2016 U.S. LEXIS 3965 (U.S., June 20, 2016)

US Supreme Court certiorari denied by Kergil v. United States, 136 S. Ct. 2488, 195 L. Ed. 2d 823, 2016 U.S. LEXIS 4011 (U.S., June 20, 2016)

US Supreme Court certiorari denied by Resnick v. United States, 136 S. Ct. 2488, 195 L. Ed. 2d 823, 2016 U.S. LEXIS 4027 (U.S., June 20, 2016)

Motion denied by United States v. Kergil, 2017 U.S. Dist. LEXIS 131733 (S.D.N.Y., Aug. 15, 2017)

Motion for new trial denied by United States v. Binday, 2017 U.S. Dist. LEXIS 155242 (S.D.N.Y., Aug. 29, 2017)

Post-conviction relief denied at, Dismissed by, Certificate of appealability denied Binday v. United States, 2018 U.S. Dist. LEXIS 88338 (S.D.N.Y., May 23, 2018)

Prior History: Defendants Michael Binday, James Kevin Kergil, and Mark Resnick appeal from judgments of conviction in the United States District Court for the Southern District of New York (Colleen McMahon, Judge) for conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349, mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343. Kergil and Resnick were also convicted of conspiracy to obstruct justice through destruction of records, 18 U.S.C. § 1512(k) [**1] . The convictions arise from an insurance fraud scheme whereby defendants, who were insurance brokers, induced insurers to issue life insurance policies that defendants sold to third-party investors, by submitting fraudulent applications indicating that the policies were for the applicants' personal estate planning. Defendants argue primarily that the government did not prove that they contemplated harm to the insurers that is cognizable under the mail and wire fraud statutes. That basic argument takes several forms, including a sufficiency of the evidence challenge, a constructive amendment claim, and a jury instruction challenge. Defendants also contend that their sentences are procedurally unreasonable because the district court used an erroneous loss amount in calculating their Guidelines sentence ranges. [**2]  Kergil and Resnick challenge their obstruction convictions on various grounds. We conclude that there was sufficient evidence that defendants contemplated a cognizable harm under the mail and wire fraud statutes; that the indictment was not constructively amended because the allegations in the indictment and the government's proof at trial substantially correspond; and that some aspects of the defendants' challenge to the jury instruction are waived, while the remainder fail on the merits. We also reject defendants' challenges to their sentences, and Kergil and Resnick's challenges to their obstruction convictions. The judgments of conviction are thus AFFIRMED, and the case is REMANDED for the limited purpose of revising the restitution amount as agreed by the parties.

United States v. Binday, 908 F. Supp. 2d 485, 2012 U.S. Dist. LEXIS 176156 (S.D.N.Y., Dec. 10, 2012)

CORE TERMS

policies, insurers, indictment, sentence, economic harm, calculation, district court, defendants', investors, non-STOLI, misrepresentations, premiums, actual loss, harms, commissions, Guidelines, documents, insurance company, deprived, argues, straw, premium payment, wire fraud, quotation, marks, amount of loss, fraudulent, bargain, mail, lapse

Criminal Law & Procedure, Standards of Review, Substantial Evidence, Verdicts, Insurance Law, Types of Insurance, Life Insurance, Assignments & Transfers, Insurable Interests, General Overview, Fraud, Wire Fraud, Elements, Fraud Against the Government, Mail Fraud, Sufficiency of Evidence, Indictments, Contents, Sufficiency of Contents, Reviewability, Waiver, Jury Instructions, De Novo Review, Plain Error, Amendments & Variances, Constructive Amendments, Constitutional Law, Fundamental Rights, Procedural Due Process, Grand Jury Requirement, Grand Juries, Right to Indictment by Grand Jury, Trials, Closing Arguments, Inflammatory Statements, Appeals, Reversible Error, Prosecutorial Misconduct, Criminal Offenses, Obstruction of Administration of Justice, Juries & Jurors, Province of Court & Jury, Inchoate Crimes, Conspiracy, Abuse of Discretion, Motions to Suppress, Clearly Erroneous Review, Legal Ethics, Professional Conduct, Opposing Counsel & Parties, Prosecutorial Conduct, Miranda Rights, Self-Incrimination Privilege, Custodial Interrogation, Sentencing, Imposition of Sentence, Evidence, Sentencing Guidelines, Adjustments & Enhancements, Clear Error Review, De Novo Review, Factors, Penalties, Civil Procedure, Preclusion of Judgments, Estoppel, Judicial Estoppel, Proportionality & Reasonableness Review