United States v. Binday

993 F. Supp. 2d 365, 2014 WL 130461, 2014 U.S. Dist. LEXIS 5284
CourtDistrict Court, S.D. New York
DecidedJanuary 10, 2014
DocketNo. 12 Cr 152(CM)
StatusPublished
Cited by1 cases

This text of 993 F. Supp. 2d 365 (United States v. Binday) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Binday, 993 F. Supp. 2d 365, 2014 WL 130461, 2014 U.S. Dist. LEXIS 5284 (S.D.N.Y. 2014).

Opinion

DECISION AND ORDER ON DEFENDANT RESNICK’S POST-TRIAL MOTION

McMAHON, District Judge.

Michael Binday, James Kevin Kergil and Mark Resnick, were convicted after a jury trial of conspiring to commit mail and wire fraud (Count One), and of committing substantive mail and wire fraud (Counts Two and Three, respectively). The jury [367]*367also convicted Kergil and Resnick of conspiring to obstruct justice (Count Four). The defendants are currently at liberty pending sentencing, scheduled for March 20, 2014.

Defendant Resnick has filed a motion asking the Court to enter a judgment of acquittal on Count Four, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Resnick argues that the evidence adduced at trial was insufficient to establish that he (1) knowingly and intentionally agreed to participate in a conspiracy -to obstruct justice, or (2) intended to obstruct an “official proceeding,” as that term is used in the relevant statute.

Rule 29 Standard

The governing legal standards for assessing the sufficiency of evidence adduced at trial are well-established. “A defendant challenging the sufficiency of the evidence bears a very heavy burden,” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir.2011); accord United States v. Temple, 447 F.3d 130, 137 (2d Cir.2006); United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002), and faces “an uphill battle.” United States v. Jones, 30 F.3d 276, 281 (2d Cir.1994); see also, e.g., United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). In considering the sufficiency of the evidence supporting a guilty verdict, the evidence must be viewed in the light most favorable to the Government. See Temple, 447 F.3d at 136-37. The Court must analyze the pieces of evidence ‘ “in conjunction, not in isolation,’ ” United States v. Persico, 645 F.3d 85, 104 (2d Cir.2011) (quoting United States v. Eppolito, 543 F.3d 25, 45 (2d Cir.2008)), and must apply the sufficiency test “to the totality of the government’s case and not to each element, as each fact may gain color from others,” United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999); accord Persico, 645 F.3d at 104. The Court must also “credit[] every inference that the jury might have drawn in favor of the government,” Temple, 447 F.3d at 136-37 (internal quotation and citation omitted), because “the task of choosing among competing, permissible inferences is for the fact-finder, not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001). “These standards apply whether the evidence being reviewed is direct or circumstantial.” Persico, 645 F.3d at 105.

Under this standard, a jury verdict 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). Indeed, the Court must “resolve all issues of credibility in favor of the jury’s verdict,” Desena, 287 F.3d at 177 (internal quotations omitted); accord United States v. Abelis, 146 F.3d 73, 80 (2d Cir.1998), and in a close case, where “either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter.” Autuori, 212 F.3d at 114 (internal quotations and brackets omitted).

Accordingly, a “court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” Guadagna, 183 F.3d at 130.

Resnick’s Membership in the Conspiracy to Destroy Records

Resnick argues that the evidence at trial did not establish he knowingly and intentionally agreed to participate in a conspiracy to obstruct justice. (Resnick Br. at 8-11).

[368]*368Resnick points to the testimony of cooperating witness Paul Krupit, who testified that Resnick initially took “lightly” co-defendant Kergil’s direction to destroy records. Since Resnick ultimately joined Kergil and Krupit in their plan to obstruct justice, that testimony was of little relevance. (Tr. at 981-82). As this Court instructed the jury: “A person can become a member of a conspiracy even if he does not join it at the beginning. He can join a conspiracy at any time while it is in progress.” (Tr. 1595). While Resnick may have been the last of the coconspirators to join the conspiracy, there was incontrovertible evidence that he followed Kergil’s instructions to delete the contents from his hard drive:

PAUL KRUPIT: Yeah, but still, I went in there and deleted stuff because he told me to.
MARK RESNICK: Right, right. Yeah, pretty much everything Kevin told us was wrong ... so ...
PAUL KRUPIT: Yeah, I mean it ... I can’t belie ... you know, I mean, I would have, I would have never done that. I, I, I questioned it when I did it. (V/O)
MARK RESNICK: Me either. Yeah, me, me, me too. Hey Paul, I got back on a plane and came back here the next — you know went, went back home the next day and, and did it so ... Um, it was stupid to do, and, and it, it, it makes us look uh ... you know, that we did something, but, um ...

(GX 3075) (Transcript of July 23, 2010 call (GX 3074)).

Resnick also rehashes the argument he made unsuccessfully to the jury about how, at the suggestion of his attorney, he had his computer “wiped” clean and the data moved to a portable device to protect the data. (Resnick Br. at 10-11; Tr. 1504-07 (Resnick summation)). This explanation was contradicted by the evidence, including: the recorded phone calls during which Resnick acknowledged that he flew from New York to Florida to wipe his hard drive at “Kevin’s” direction, which he knew was “wrong” (GXs 3074, 3075); the testimony and emails making plain that Res-nick took this action only in the shadow of a looming criminal proceeding (Tr. 969-982 (Krupit testimony regarding June 2010 visits from FBI)); GX 3022 (June 22, 2010 email regarding June 21, 2010 visit from FBI); and the records from Apple plainly reflecting a request to wipe the hard drive one week before an attorney for Resnick became involved (GX 3077).

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Cite This Page — Counsel Stack

Bluebook (online)
993 F. Supp. 2d 365, 2014 WL 130461, 2014 U.S. Dist. LEXIS 5284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-binday-nysd-2014.