United States v. Novis (Denkberg)

139 F.4th 147

• Court: Court of Appeals for the Second Circuit
• Decided: June 2, 2025
• Docket: 23-6877
• Status: Published

Opinion

23-6877-cr United States v. Novis (Denkberg)

In the United States Court of Appeals for the Second Circuit

AUGUST TERM 2024

Nos. 23-6877 (L), 23-6925 (CON)

UNITED STATES OF AMERICA, Appellee,

v.

GARY DENKBERG, SEAN NOVIS Defendants-Appellants.

On Appeal from the United States District Court for the Eastern District of New York

ARGUED: JANUARY 14, 2025 DECIDED: JUNE 2, 2025

Before: CABRANES, RAGGI, and KAHN, Circuit Judges. Defendants Gary Denkberg and Sean Novis (together,

“Defendants”) appeal their judgments of conviction, entered on

August 3, 2023, after a jury trial in the United States District Court for

the Eastern District of New York (Joan M. Azrack, Judge). Denkberg

and Novis were convicted of multiple counts of mail fraud in

violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. §

1343, use of fictitious names and titles in violation of 18 U.S.C. § 1342,

and aiding and abetting mail fraud in violation of 18 U.S.C. §§ 2 and

1341.

On appeal, Denkberg and Novis principally argue that there

was insufficient evidence to support their convictions, the District

Court erred when issuing supplemental jury instructions, and the

District Court made several evidentiary errors.

We hold that (1) sufficient evidence supported Defendants’

convictions, including evidence from which a reasonable jury could

find that Defendants possessed the requisite intent to defraud,

notwithstanding evidence that they relied on the advice of counsel;

(2) the District Court’s supplemental jury instructions were not in

error; (3) the admitted testimony from the victims’ family members

and letters from state attorneys general were not hearsay; (4)

Defendants failed to preserve their argument that the admission of

the letters from the state attorneys general violated the Confrontation

2 Clause and, upon review, the admission of those letters did not

amount to plain error; and (5) the District Court did not abuse its

discretion by prohibiting defense counsel from introducing evidence

as a sanction for defense counsel’s failure to abide by the District

Court’s protective order.

The District Court’s judgments of conviction of August 3, 2023

are AFFIRMED.

AMANDA L. MUNDELL, Attorney, Appellate Division, Criminal Division (Lisa H. Miller, Deputy Assistant Attorney General, Criminal Division; Amanda N. Liskamm, Joseph M. Williams, Charles B. Dunn, Carolyn F. Rice, Trial Attorneys, Consumer Protection Branch, Civil Division on the brief), for Nicole M. Argentieri, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Washington, D.C., for Appellee.

MATTHEW W. BRISSENDEN, Matthew W. Brissenden P.C., Garden City, NY, for Defendant-Appellant Gary Denkberg.

LUKE CASS, Womble Bond Dickinson (US) LLP, Washington, D.C. (Michael E. Clark, Jasmine G. Chalashtori, Womble Bond

3 Dickinson (US) LLP, Washington D.C.; Jim Druker, Kase & Druker, Garden City, NY, on the brief), for Defendant-Appellant Sean Novis.

JOSÉ A. CABRANES, Circuit Judge:

Defendants Gary Denkberg and Sean Novis (together,

“Defendants”) appeal their judgments of conviction, entered on

August 3, 2023, after a jury trial in the United States District Court for

the Eastern District of New York (Joan M. Azrack, Judge). Denkberg

and Novis were convicted of multiple counts of mail fraud in violation

of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, use of

fictitious names and titles in violation of 18 U.S.C. § 1342, and aiding

and abetting mail fraud in violation of 18 U.S.C. §§ 2 and 1341.

was insufficient evidence to support their convictions, the District

Court erred when issuing supplemental jury instructions, and the

convictions, including evidence from which a reasonable jury could

find that Defendants possessed the requisite intent to defraud,

notwithstanding evidence that they relied on the advice of counsel; (2)

4 the District Court’s supplemental jury instructions were not in error;

(3) the admitted testimony from the victims’ family members and

letters from state attorneys general were not hearsay; (4) Defendants

failed to preserve their argument that the admission of the letters from

the state attorneys general violated the Confrontation Clause and,

upon review, the admission of those letters did not amount to plain

error; and (5) the District Court did not abuse its discretion by

prohibiting defense counsel from introducing evidence as a sanction

for defense counsel’s failure to abide by the District Court’s protective

order.

Accordingly, we AFFIRM the District Court’s August 3, 2023,

judgments of conviction.

Additionally, identifying potential professional misconduct by

the attorneys who advised Defendants over the course of their

fraudulent scheme, we direct the Clerk of Court to forward our

opinion—and the record below—to the relevant New York State

disciplinary authorities.

5 I. BACKGROUND 1

In 2003, Novis owned and operated a direct-mailing operation in

Long Island, New York. Denkberg joined the operation in 2004 and

served as Novis’s partner. Working together over more than a decade,

Denkberg and Novis engaged in a mass-mailing fraud scheme in

which they sent hundreds of thousands of fake “prize notices” to

American consumers that were designed to give recipients the

impression that they had won a large cash prize—typically in excess

of one million dollars. To claim their prize, the elaborately designed

notices instructed recipients that they needed only to pay a small

processing fee, typically between $20 and $40. And so they did. From

2004 until September 2016, Denkberg and Novis’s operation generated

1 Unless otherwise noted, the following facts are drawn from the evidence presented at trial and described in the light most favorable to the Government. See United States v. Lyle, 919 F.3d 716, 722 (2d Cir. 2019) (“Because [Defendants] appeal convictions following a jury trial, we view the evidence ‘in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.’” (quoting United States v. Rosemond, 841 F.3d 95, 99-100 (2d Cir. 2016)). See generally Musacchio v. United States, 577 U.S. 237, 243 (2016).

6 approximately $80 million dollars of revenue from over three million

transactions. 2

However, those who paid the fee (hereafter, “the victims”), did not

receive the advertised cash prize. Instead, victims received a

“sweepstakes report”—a thin booklet with publicly available

information that described third-party sweepstakes that they could

enter to win cash prizes. 3

To effectuate their scheme, Denkberg and Novis went to great

lengths to construct convoluted prize notices for the purpose of

deceiving their victims. The notices were personalized to the recipients

based on identifying information gathered from “list brokers,” affixed

with official-looking seals, rubber stamps, and hand drawn signatures

produced by a hired artist, and designed to appear as though they had

been sent from seemingly official, but fictitious, organizations and

officials. 4 Using large, bold, and capitalized font, some of the notices

appeared to alert the victims that they were a “SELECTED WINNER-

2 In addition, Denkberg and Novis provided victims’ information to other fraudsters,

resulting in an additional $13 million victim loss across over five hundred thousand

transactions. See JA.2068.

3 JA.917-18, 977. See also JA.1739-46.

4 JA.916; JA.1069, 1075, 1078; JA.1516, 1530.

7 PAY GUARANTEED” and that their prize was “AVAILABLE and

GUARANTEED to you.” 5 Some of the notices were crafted to look like

checks, financial statements, stock certificates, and other official

documents.

Buried beneath, alongside, or on the backside of their notices, often

in small text and incoherent legalese, Denkberg and Novis included

“disclaimers” that the victims had not actually won a cash prize but

instead had merely received an “opportunity” to purchase a

“sweepstakes report.” 6

Those across the country defrauded by Denkberg and Novis mailed

the requested fees to Defendants in the form of cash or a check.

Defendants collected the cash and sent the checks to a third-party

payment processor in Canada. The payment processor then deposited

the checks and wired the proceeds to Defendants’ business bank

accounts in New York. Meanwhile, Defendants recorded and

identified (“flagged”) the victims who had sent them the requested

fees, and then proceeded to send these victims even more fake notices

under the names of other fake companies and fake officials. 7

5 JA.1530, 1532.

6 JA.747-751.

7 JA.915, 1172–76; see, e.g., JA.1732.

8 Complaints from victims and state attorneys general revealed that

many of Denkberg and Novis’s victims were elderly or infirm. 8

Over the course of their approximately twelve-year fraudulent

scheme, Denkberg and Novis were primarily represented by the solo

practitioner Charles Chernofsky, by father and son attorneys Sheldon

Lustigman and Andrew Lustigman of the Lustigman firm, and, after

the Lustigman firm merged with Olshan Frome Wolosky (“Olshan”)

in 2011, by Adam Soloman too. 9 Throughout the course of Defendants’

fraudulent scheme, their attorneys offered advice on “compliance with

the generally accepted principles governing advertising.” 10 In email

correspondence with Defendants, the attorneys claimed that

Defendants’ mailings would be reviewed under a “Reasonable

Consumer Standard.” 11 These attorneys overwhelmingly approved

Defendants’ fraudulent notices, sometimes providing minimal edits,

which were often, but not always, incorporated into the notices by

Defendants.

8 JA.1029, 2024–26, 1159–65.

9 JA.844–52, 1501–03. 10 JA.264, 1149.

11 JA.264.

9 In response to complaints from victims that they had not received

their promised prizes, Denkberg and Novis would send victims

disclaimer letters that they had not, in fact, won a sweepstakes and

instead “misunderstood the sales promotion that we sent to you.” 12

Over time, the fact that Defendants received a high volume of

repeat payments from elderly customers caught the attention of their

Canadian payment processor, who, in March 2008, warned

Defendants by email of the “significant regulatory risk” their scheme

posed. 13 And eventually, in 2012, the U.S. Postal Service (“USPS”)

brought two administrative actions against Defendants that

culminated in signed cease-and-desist agreements and a $5,000 fine. 14

Despite signing the cease-and-desist agreements, agreeing to

discontinue and abandon “such promotional activities and

representations for obtaining money or property through the mails,”

Denkberg and Novis resumed such activities almost immediately,

forming new shell companies with nearly identical prize notices. 15

12 JA.2060; JA.1034. Defendants would send a refund to their victims for the fee if

requested. JA.1033.

13 JA.1981; 1053-55.

14 JA.1388-1414, 1450.

15 JA.1399.

10 Defendants’ lawyers continued to review these notices, purportedly

under a “reasonable consumer” standard applicable to civil

advertising law, offering only minor revisions, often with the

disclaimer in their email opinions that “there can be no assurance that

the Postal Service or other regulator might not view the matter

differently, but we think that your position would be legally defensible

with the copy as revised.” 16

Additionally, in 2015 and 2016, while simultaneously running their

own fraudulent scheme, Denkberg and Novis shared employees and

lists of victims with three other individuals, who ran similar prize

notice schemes: Shawn Phillips, Philip Priolo, and Jeffrey Novis.

In September 2016, Defendants’ fraudulent scheme ended when, in

a civil anti-fraud action, they stipulated to an injunction under 18

U.S.C. § 1345 prohibiting them and their business entities from, inter

alia, distributing prize notices. 17

16 JA.713, 783.

17 See JA.1204. Finding “probable cause to believe” that Denkberg and Novis were

“violating and/or were about to violate [the mail fraud statute] 18 U.S.C. § 1341,” the

District Court enjoined Defendants pursuant to 18 U.S.C. § 1345. United States v. Sean

Novis, et al., No. 16-cv-5263, ECF No. 35 at 1-6 (E.D.N.Y. Feb. 23, 2017). 18 U.S.C. § 1345

provides, in relevant part, that “the Attorney General may commence a civil action in any

Federal court to enjoin such violation.”

11 In August 2020, the Government sought an initial criminal

indictment against Denkberg and Novis, followed by a superseding

indictment a year later. 18 On August 25, 2021, a federal grand jury

sitting in the Eastern District of New York returned the 19-count

superseding indictment charging Denkberg and Novis with

conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 (Count

One); six counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts

Two through Seven); four counts of wire fraud in violation of 18 U.S.C.

§ 1343 (Counts Eight through Eleven); four counts use of fictitious

names and titles in violation of 18 U.S.C. § 1342 (Counts Twelve

through Fifteen); and four counts of aiding and abetting mail fraud in

violation of 18 U.S.C. §§ 2 and 1341 (Counts Sixteen through

Nineteen). 19

18 JA.26; JA.38.

19 JA.42-48, 201-07. 18 U.S.C. § 1349 provides, in relevant part

Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

18 U.S.C. § 1341 provides, in relevant part

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or

12 Trial began before Judge Azrack on April 26, 2022. On May 17, 2022,

after a three-week trial, the jury acquitted Denkberg on two counts of

mail fraud (Counts Six and Seven), two counts of wire fraud (Counts

Eight and Nine), and two counts of fraud using fictitious names

(Counts Thirteen and Fifteen), and found him guilty on all 13

remaining counts. The jury convicted Novis on all 19 counts.

other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1343 provides, in relevant part

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 2 provides, in relevant part

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

13 The District Court sentenced Denkberg to 66 months of

imprisonment to be followed by two years of supervised release and

further ordered Denkberg to pay a $250,000 fine and $19,020,552 in

forfeiture. It sentenced Novis to 90 months of imprisonment, to be

followed by two years of supervised release and further ordered Novis

to pay a $500,000 fine and $60,503,668 in forfeiture.

This timely appeal followed.

II. DISCUSSION

1. Sufficiency of the Evidence

Denkberg and Novis challenge that the evidence presented at trial

was sufficient to prove that they conspired to commit mail fraud,

committed mail and wire fraud, and used fictitious names in the

course of committing mail fraud. Relevant to these convictions, they

argue that the Government failed to provide sufficient evidence to

prove a scheme to defraud, an element common to 18 U.S.C. §§ 1341,

1342, 1343, and 1349. Such a scheme requires proof both that “the

defendant[s] acted with fraudulent intent” and that any

“misrepresentations were material.” 20 In addition, Denkberg and

20 United States v. Weaver, 860 F.3d 90, 94 (2d Cir. 2017) (citations omitted).

14 Novis also challenge that a rational juror could find they aided and

abetted mail fraud.

When preserved, we review sufficiency of the evidence challenges

de novo. 21 When hearing a sufficiency challenge on appeal, we make a

“limited inquiry tailored to ensure that a defendant receives the

minimum that due process requires: a ‘meaningful opportunity to

defend’ against the charge against him and a jury finding of guilt

‘beyond a reasonable doubt.’” 22 As the Supreme Court has repeatedly

instructed, “[a]ll that a defendant is entitled to on a sufficiency

challenge is for the court to make a ‘legal’ determination whether the

evidence was strong enough to reach a jury at all.” 23 Accordingly, “we

must sustain the jury's verdict if, crediting every inference that could

have been drawn in the government's favor and viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact

21 See United States v. Pierce, 785 F.3d 832, 837 (2d Cir. 2015).

22 Musacchio v. United States, 577 U.S. 237, 243 (2016) (quoting Jackson v. Virginia, 443 U.S.

307, 314–15 (1979)).

23 Id. at 244 (quoting Jackson, 443 U.S. at 319).

15 could have found the essential elements of the crime beyond a

reasonable doubt.” 24

A. Fraudulent Intent and the Advice of Counsel

First, Denkberg and Novis argue that no rational juror could find

that they possessed the requisite fraudulent intent based on the

evidence presented by the Government. “Essential to [prove] a scheme

to defraud is fraudulent intent.” 25 Fraudulent intent may be proven

through both direct and circumstantial evidence. 26 “Therefore, a jury

may bring to its analysis of intent on individual counts all the

circumstantial evidence it has received on the scheme and the purpose

of the scheme in which the defendant allegedly participated.” 27

24 United States v. Raniere, 55 F.4th 354, 364 (2d Cir. 2022) (quoting United States v. Capers, 20

F.4th 105, 113 (2d Cir. 2021)).

25 United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). The Government “must

demonstrate that the defendant had a ‘conscious knowing intent to defraud and that the

defendant contemplated or intended some harm to the property rights of the victim.’” Id.

(quoting United States v. Leonard, 61 F.3d 1181, 1187 (5th Cir. 1995)) (ellipses and brackets

omitted).

26 Id. Indeed, “[a] defendant's fraudulent intent may be proven entirely through

circumstantial evidence.” United States v. Romano, 794 F.3d 317, 335 (2d Cir. 2015).

27 Guadagna, 183 F.3d at 130.

16 In addition to arguing that the Government failed to provide

sufficient evidence of their fraudulent intent, Denkberg and Novis

argue that no rational juror could find that they possessed fraudulent

intent because of the evidence Defendants introduced at trial that they

had relied on the advice of counsel. Neither argument is persuasive.

We consider each in turn.

i. Evidence of Fraudulent Intent

Viewing the record evidence in the light most favorable to the

Government, there is ample evidence to support the jury’s finding that

Denkberg and Novis intended to defraud the recipients through their

prize notices.

The jury had Defendants’ elaborately-constructed prize notices—

which were personalized to recipients; used fictitious names and

businesses; resembled checks or financial documents; included

contrived seals or signatures to make them look official; and used

confusing language to obscure disclaimers—from which it could find

Defendants’ intent to deceive the recipients into believing they had

won prizes claimable by payment of a fee. Most prize notices

contained no return address, only a post office box on the return

envelope, which made it difficult to ascertain who had sent the notice.

17 In addition to the content of the prize notices, the jury heard

testimony about the victims’ understanding that the prize notices

entitled them to large cash prizes. The jury also heard how once

Defendants learned that a victim had fallen prey to their scheme and

sent the requested fee to Defendants, they targeted that same victim

with even more prize notices. This tactic led their payment processor

to warn Defendants that a large volume of their checks came from

“multi buyers” who were “nearly always elderly.” 28

The jury also heard evidence that Defendants had received at least

32 complaints since January 2005 and were the subject of an

investigation by the USPS over their prize notices, which culminated

in the 2012 cease-and-desist agreement with USPS. Yet, trial testimony,

including testimony from a former employee of Defendants,

established that they did not meaningfully alter their prize notice

scheme after signing those agreements, instead creating new shell

companies under which to continue their scheme. From the totality of

such evidence, a reasonable jury could conclude that the Defendants

intended to defraud their victims.

ii. Advice of Counsel

28 JA.1981.

18 Despite the overwhelming evidence of Denkberg’s and Novis’s

fraudulent intent presented by the Government, Defendants argue

that no rational juror could have found that they possessed the

requisite fraudulent intent because of the evidence that Defendants

introduced that they had relied on the advice of counsel.

In order “to benefit from an advice-of-counsel defense, a party

must show that he (1) ‘honestly and in good faith’ sought the advice

of counsel; (2) ‘fully and honestly la[id] all the facts before his counsel’;

and (3) ‘in good faith and honestly follow[ed]’ counsel’s advice,

believing it to be correct and intending that his acts be lawful.” 29

Importantly, in a fraud case, an advice-of-counsel defense “is

not an affirmative defense that defeats liability even if the jury accepts

the government's allegations as true.” 30 Instead, the evidence

introduced regarding a defendant’s good faith reliance on the advice

of counsel, “if believed, can raise a reasonable doubt in the minds of

the jurors about whether the government has proved the required

element of the offense that the defendant had an ‘unlawful intent.’” 31

29 United States v. Colasuonno, 697 F.3d 164, 181 (2d Cir. 2012) (quoting Williamson v. United States, 207 U.S. 425, 453 (1908)). 30 United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017).

31 Id. (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d Cir. 1989)).

19 In other words, evidence introduced regarding a defendant’s good

faith reliance on the advice of counsel is inconclusive; it simply raises

factual questions about a defendant’s intent for a jury to decide. 32

The advice-of-counsel jury instruction offered by the District

Court—following model instructions endorsed by our Court in

Scully—directed the jury to consider a wide range of factual questions

that inform the ultimate question of fraudulent intent, including (but

not limited to): whether Defendants “sought,” “consulted” and

followed the advice of counsel in good faith; whether they believed the

attorney was “competent”; whether they believed such advice “to be

correct”; whether they made full and accurate reports of material facts

to their counsel; and whether the advice provided by their attorney

was “reasonable[].” 33

32 As the Ninth Circuit has explained, “[a]dvice of counsel is not regarded as a separate

and distinct defense but rather as a circumstance indicating good faith which the trier of

fact is entitled to consider on the issue of fraudulent intent.” Bisno v. United States, 299 F.2d

711, 719 (9th Cir. 1961). The Third Circuit agrees. See United States v. Greenspan, 923 F.3d

138, 146 (3d Cir. 2019) (noting advice-of-counsel defense “is a species of good-faith

defense,” merely “negat[ing] the mental state required for the crime”)

33 JA.839. The District Court’s jury instruction explained, in relevant part, that:

A defendant relies in good faith on the advice of counsel if:

1. Before taking action, he in good faith sought the advice of an attorney whom he considered competent to advise him on the matter; and

20 Contrary to the arguments of Defendants, an advice-of-counsel

defense does not limit the jury’s considerations of good faith and

criminal intent to the simple question of whether a defendant relied—

without more—on legal advice. Otherwise, an individual with

fraudulent intent could purposefully seek out and rely on

unreasonable, incomplete, or collusively constructed “legal advice”

for the purpose of establishing a pretextual defense.

Here, a rational juror could have easily found that Defendants

had fraudulent intent despite the evidence introduced of their reliance

on counsel. The pervasive evidence of fraudulent intent—including

the elaborate construction of the prize notices, the continuance of their

operation despite numerous complaints from victims and state

attorneys general, the 2012 USPS agreement, and the targeting of

vulnerable victims with additional prize notices—could lead a jury to

2. He consulted this attorney for the purpose of securing advice on the lawfulness of his possible future conduct; and

3. He made a full and accurate report to his attorney of all material facts that he knew; and

4. He then acted strictly in accordance with the advice of this attorney. He must, in good faith, honestly follow such advice, relying on it and believing it to be correct.

In determining whether the defendant acted in good faith, you may consider the reasonableness of the advice provided by the attorney.

Id. See Scully, 877 F.3d at 477–78.

21 infer that Defendants sought legal advice in bad faith, potentially for

the purpose of establishing a pretextual defense.

A rational juror could also reject the claim that Denkberg and

Novis relied on the legal advice in good faith and that their counsel’s

legal advice was “reasonable.” Denkberg and Novis never consulted

their attorneys for advice on criminal law, their attorneys lacked

criminal legal expertise, and their attorneys’ legal advice on

advertising law included disclaimers that clients were not guaranteed

immunity from legal repercussions. This was despite evidence that

Defendants monitored enforcement actions against similar

sweepstakes mailing schemes, including a May 2015 enforcement

action by the Federal Trade Commission and subsequent criminal

prosecutions. Such evidence permits an inference that Defendants

were aware their scheme was similarly illegal. Further, in representing

Defendants before the 2012 USPS administrative actions and during

settlement negotiations, their attorneys continued to largely approve

of the prize notice scheme after complaints from victims and state

attorneys general and after Defendants signed a cease-and-desist-

agreement with the USPS. This permitted an inference that Defendants

did not act in good faith by continuing to rely on the advice of these

same counsel.

22 Jurors could also doubt the testimony of Attorney Andrew

Lustigman regarding the purpose and scope of his representation of

Defendants. In particular, a juror could decide not to credit

Lustigman’s testimony that Defendants wanted to comply with the

2012 USPS settlement, and to question whether he had disclosed all

relevant oral communications with Denkberg and Novis because of his

own potential exposure to criminal liability. Indeed, a jury could have

concluded that the legal advice Lustigman provided to Defendants

was a pretext and a sham.34

Finally, the jury heard evidence that Defendants did not provide

their attorneys with all material information. For example, Solomon

testified that Defendants did not inform him about the structure of

their mailing schedule designed to target the same vulnerable victims.

The jury also heard evidence that Defendants did not always follow

that advice, even where counsel suggested edits to fake prize notices.

For example, Chernofsky advised Denkberg to remove terms such as

“recipient” in June 2007, and “payment” in May 2012, but as

subsequent notices received in evidence showed, Defendants

continued to use such terms. Similarly, although counsel repeatedly

34The Government presented evidence from which a jury could reasonably infer that Defendants and their lawyers at Olshan discussed in oral communication material matters about the legality of Defendants’ scheme that were not disclosed in email communication. See JA.1282.

23 warned Defendants that the disclaimer statements were insufficiently

legible, evidence showed that the Defendants’ copywriter “grayed

out” the disclaimers in a small, light font purposely to make them

difficult to read.

In sum, a rational juror could have found that Denkberg and

Novis had fraudulent intent, notwithstanding evidence that they had

relied on the advice of counsel.

B. Materiality

Next, Denkberg and Novis argue that the Government failed to

provide sufficient evidence that their misrepresentations were

material, as required “[i]n order to prove the existence of a scheme to

defraud.” 35 Generally, we evaluate whether a statement is material

according to whether the “misinformation or omission would

naturally tend to lead or is capable of leading a reasonable [person] to

change [his] conduct.” 36 We have identified material

35 Weaver, 860 F.3d at 94.

36 Id. (quoting United States v. Rybicki, 354 F.3d 124, 145 (2d Cir. 2003) (en banc)); see also

Neder v. United States, 527 U.S. 1, 16 (1999) (“In general, a false statement is material if it

has ‘a natural tendency to influence, or [is] capable of influencing, the decision of the

decisionmaking body to which it was addressed.’” (quoting United States v. Gaudin, 515

U.S. 506, 509 (1995))).

24 misrepresentations where there is a “discrepancy between benefits

reasonably anticipated because of the misleading representations and

the actual benefits which the defendant delivered, or intended to

deliver.” 37

Importantly, the purpose of the reasonable person or “ordinary

prudence and comprehension standard is to assure that the

defendant's conduct was calculated to deceive, not to grant permission

to take advantage of the stupid or careless.” 38 As such, the “reasonable

person” inquiry focuses on the “violator, not the victim” and is closely

related to the question of fraudulent intent. 39

Here, the Government presented evidence that amply supports a

conclusion that the elaborate fake prize notices constructed by

Defendants were designed to materially misrepresent the “benefits

reasonably anticipated” of the transaction and went “to the nature of

the bargain itself.” 40 A rational juror could find that Defendants

37 United States v. Regent Off. Supply Co., 421 F.2d 1174, 1182 (2d Cir. 1970).

38 United States v. Thomas, 377 F.3d 232, 242 (2d Cir. 2004); United States v. Corsey, 723 F.3d

366, 373 (2d Cir. 2013) (holding, in mail and wire fraud context, that “defendant is liable

for an objectively absurd lie if a subjectively foolish victim believes it”).

39 Id. at 243.

40 Regent Off. Supply Co., 421 F.2d at 1182.

25 specifically targeted vulnerable persons in their mailing schedule and

knew that falsifying senders, official titles, and statements was

“capable of leading a reasonable [person] to change [his] conduct.” 41

That the victims of Denkberg and Novis may have possessed “below-

average judgment or intelligence” is of no relevance to our inquiry, as

to hold otherwise “would be inviting ‘con men to prey on [such]

people . . . who are anyway the biggest targets of such criminals and

hence the people most needful of the law's protection.’” 42

Viewing this evidence in its totality, we conclude it was more

than sufficient to permit a reasonable jury to find Defendants knew

their misrepresentations would and did influence their victims, such

that there is sufficient evidence that there was a scheme to defraud. 43

41 Weaver, 860 F.3d at 94 (quoting Rybicki, 354 F.3d at 145).

42 Thomas, 377 F.3d at 244 (quoting United States v. Coffman, 94 F.3d 330, 334 (7th Cir. 1996)).

43 For the same reasons that pertain to mail fraud, we reject Defendants’ sufficiency

challenge to their convictions on substantive wire fraud. Insofar as Defendants argue there

is insufficient evidence supporting the interstate or foreign element of wire fraud, see United

States v. DiMassa, 117 F.4th 477, 487 (2d Cir. 2024), that is not persuasive. The Government

adduced evidence that Defendants would receive checks in the Eastern District of New York

from victims across the country and send checks to a processor in Canada, which would in

turn wire proceeds into Defendants’ accounts in New York.

26 C. Aiding and Abetting

Denkberg and Novis also challenge that there was sufficient

evidence to convict them of aiding and abetting Shawn Phillips, Philip

Priolo, and Jeffrey Novis in their prize notice schemes. This argument

is similarly unavailing.

To prove that a defendant has aided and abetted a crime, the

Government “must prove that ‘the underlying crime was committed

by someone other than the defendant and that the defendant himself

either acted or failed to act with the specific intent of advancing the

commission of the underlying crime.’” 44 The Government does not

need to prove that a defendant “kn[e]w all of the details of the

[underlying] crime,” so long as the evidence proved he “joined the

venture, shared in it, and that his efforts contributed towards its

success.” 45

Here, the Government provided direct and circumstantial

evidence that would allow a rational juror to find that Defendants had

aided and abetted mail fraud committed by Phillips, Priolo, and Jeffery

44 United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999) (quoting United States v. Pipola, 83

F.3d 556, 562 (2d Cir. 1996)); Medunjanin v. United States, 99 F.4th 129, 134 (2d Cir. 2024).

45 United States v. Best, 219 F.3d 192, 199–200 (2d Cir. 2000) (internal quotation marks

27 Novis. The Government provided evidence that Defendants shared

their customer mailing lists, that Novis directed his and Denkberg’s

employees to work with Phillips, Priolo and Jeffrey Novis, and that

Denkberg suggested edits to Phillips’ prize notices, which feature fake

seals, signatures, and language similar to those used by Defendants in

their own scheme. Insofar as Defendants argue they had no basis to

believe such third-party mailings were illegal, the jury saw an August

5, 2015 email from Sean Novis to Jeffrey Novis and Priolo, forwarding

a letter from the Minnesota Attorney General enclosing a complaint

from an elderly victim. This permitted the jury reasonably to infer that

(1) Defendants were aware of the fraudulent nature of the Phillips,

Jeffrey Novis, and Priolo’s business model; and (2) intended to further

the commission of that fraud.

2. Supplemental Jury Instructions

Denkberg and Novis argue that the District Court’s supplemental

jury instructions on good faith, provided in response to questions from

the jury during deliberations, were erroneous because the instructions

negated their advice-of-counsel defense, misled the jury regarding

fraudulent intent and materiality, and failed to repeat the District

Court’s initial instruction on materiality.

28 “We review de novo a properly preserved challenge to a jury

instruction, reversing where the charge, viewed as a whole, either

failed to inform the jury adequately of the law or misled the jury about

the correct legal rule.” 46 Unpreserved challenges to jury instructions

are reviewed only for plain error. 47 “In reviewing a jury instruction,

we ‘examine not only the specific language that the defendant

challenges but also the instructions as a whole to see if the entire

charge delivered a correct interpretation of the law.’” 48 For

supplementary instructions in particular, “legal sufficiency . . . must

be assessed in the context of the instructions as a whole.” 49

At the close of trial, the District Court gave standard jury

instructions that defined “scheme to defraud,” “intent to defraud,”

46 United States v. Capers, 20 F.4th 105, 116 (2d Cir. 2021) (quoting United States v. Binday,

804 F.3d 558, 581–82 (2d Cir. 2015)).

47 See, e.g., United States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020) (“[W]e review for

plain error, considering whether ‘(1) there is an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial

rights; and (4) the error seriously affects the fairness, integrity or public reputation of

judicial proceedings.’” (quoting United States v Nouri, 711 F.3d 129, 138 (2d Cir. 2013)).

48 United States v. Al Kassar, 660 F.3d 108, 127 (2d Cir. 2011) (quoting United States v. Bala,

236 F.3d 87, 94–95 (2d Cir. 2000)).

49 United States v. Velez, 652 F.2d 258, 261 (2d Cir. 1981).

29 and materiality. 50 The District Court provided the jury with factual

questions relevant to whether Defendants “relie[d] in good faith on the

advice of counsel”—not as elements of an affirmative defense but as

considerations bearing on the Government’s burden to prove

fraudulent intent. 51 The District Court clearly explained that “[t]he

burden of proof is on the government to prove fraudulent intent and

the consequent lack of good faith beyond a reasonable doubt.” 52

During deliberations, the District Court received a note from the

jury with questions. Relevant here, two of the jury’s questions

concerned the advice-of-counsel defense and fraudulent intent. 53 In

50 JA.835–38; JA.1357–59.

51 JA.1359.

52 Id.

53 The jury asked, in relevant part:

(1) Can you explain further or clarify “average prudence” and can a

person be purposefully misleading but not have intent to break the

law as advise [sic] of counsel said they were within the law.

(2) Page 21 [of the district court’s instructions] the top paragraph about

“scheme to defraud” having to be “calculated to deceive persons of

average prudence.” Does that mean that it is legal to intentionally be

predatory towards vulnerable people and execute a scheme to

defraud people below average prudence?

30 due course, the District Court provided a supplemental instruction. 54

Regarding the advice-of-counsel defense, the District Court clarified,

in relevant part:

I previously instructed you about good faith reliance on

counsel. You must follow all of those instructions. A

person who acts with an intent to defraud cannot also, at

the same time, act in good faith. If the defendant relied in

good faith on the advice of an attorney that his conduct

was lawful, then he lacked an intent to defraud. However,

a person who acts with an intent to defraud cannot rely

on advice of counsel in good faith. And let me, of course,

remind you that you should consider and follow all of my

original instructions on the law from last Friday. 55

The District Court also clarified how the “reasonable person” or

“average prudence” standard bears on the issue of fraudulent intent.

In its supplemental instruction, the District Court explained, in

relevant part:

JA.196–97.

54 JA.1378.

55 JA.862, 1377–78 (formatting omitted).

31 Proof that a defendant created a scheme to deceive

reasonable people can be sufficient evidence that the

defendant acted with an intent to defraud. A defendant

can also act with intent to defraud if the defendant

intended to deceive the ignorant or gullible. 56

First, Denkberg and Novis object to the District Court’s

supplementary instruction regarding their advice-of-counsel defense.

In particular, they argue that that the jury’s consideration of the

advice-of-counsel defense is “is limited to the defendant’s good faith

reliance on the advice received, not on a defendant’s state of mind when

soliciting that advice.” 57 As a result, Defendants argue that the District

Court erred in its supplemental instruction when it claimed that “a

person who acts with an intent to defraud cannot rely on advice of

counsel in good faith” because a defendant could have an intent to

mislead but have a good faith belief in the legality of their actions. 58

56 JA.862 (formatting omitted).

57 Novis Br. at 23 (emphasis in original).

58 Novis Br. at 20, 23. Additionally, Denkberg argues that the “advice of counsel”

supplemental instruction was especially misleading when read in combination with the

supplemental instruction regarding the “average prudence” standard. Denkberg Br. at 31-

32, 35. Finding neither instruction in error—whether considered in isolation or in

combination—we do not agree.

32 The District Court’s supplemental instruction, they claim, also had the

effect of inappropriately shifting the Government’s burden. 59

We find no error in the District Court’s supplemental instruction

regarding the advice-of-counsel defense. Defendants fundamentally

misunderstand the nature of the defense. As explained above, the jury

was properly instructed to consider a wide range of factual questions

relevant to whether Defendants relied in good faith on the advice of

counsel, and ultimately whether the Government proved that

Defendants had fraudulent intent.

The mere fact that Defendants relied on legal advice does not alone

negate their fraudulent intent without a broader consideration of

relevant questions, including (but not limited to) whether they

“sought,” “consulted” and followed the advice of counsel in good

faith; whether they believed the attorney was “competent”; whether

they believed such advice “to be correct”; whether they made full and

accurate reports of material facts to their counsel; and whether the

advice provided by the attorney was “reasonable[].” 60 As the Fourth

59 Novis also argues that the jury instruction had the effect of inappropriately focusing the

jury’s attention on Defendants’ “acts” and not the issue of their intent. Novis Br. at 33. We

do not agree.

60 See ante note 33.

33 Circuit explained regarding a similar fraudulent scheme over sixty

years ago, to hold the fact that “defendants proceeded under advice of

a lawyer” to be an “impregnable wall of defense” and not a “fact to be

considered together with other facts” would be an error. 61 It “would

be to say that no matter how violative of law a defendant's conduct

may be, and regardless of consciousness of wrongdoing on his part

and his adviser's, the advice confers immunity.” 62 If a jury determines

that the total sum of evidence proves that a defendant had the intent

to defraud beyond a reasonable doubt, the defendant necessarily could

not have relied on counsel in good faith. The District Court’s

instruction was not in error. 63

Second, Denkberg (and by the incorporation of his arguments,

Novis) challenges the District Court’s supplemental instruction

61 Linden v. United States, 254 F.2d 560, 568 (4th Cir. 1958).

62 Id.

63 In any event, the supplemental jury instruction twice referred to the court’s original

charge, of which the jury had a copy, and which Defendants do not challenge. See JA.1359.

We have recognized that a district court usually need not repeat “original instruction[s] in

the supplemental charge,” where, as here, it “explicitly cautions the jury that the

supplemental instruction is adjunct to, and not a substitute for, the original charge.” Velez,

652 F.2d at 261–62; see United States v. Daugerdas, 837 F.3d 212, 229 (2d Cir. 2016) (explaining

that “[i]n light of [district court’s] explication of the good faith defense [in original charge],

there was no need for him to reiterate it” in supplemental instruction).

34 clarifying the reasonable person or average prudence standard,

arguing both that it had the effect of inappropriately weakening the

advice-of-counsel defense and that the District Court failed to add an

additional instruction on the issue of materiality. Because Denkberg

failed to preserve his challenge to the supplemental instructions

regarding the average prudence standard, his challenge on appeal is

reviewed for plain error. 64

The District Court did not err, let alone plainly err, when it clarified

that “[a] defendant can also act with intent to defraud if the defendant

intended to deceive the ignorant or gullible.” 65 As we have earlier

observed, the purpose of the reasonable person or “ordinary prudence

and comprehension standard is to assure that the defendant's conduct

was calculated to deceive, not to grant permission to take advantage

of the stupid or careless.” 66 The District Court’s instruction neither

misstated our law on fraudulent intent nor misled the jury by omission

on the issue of materiality. Indeed, just as “fortuitous choice of a

64 For the plain error standard, see ante note 47.

65 JA.862, 1378.

66 Thomas, 377 F.3d at 242.

35 gullible victim” does not negate a defendant’s fraudulent intent, it

does not negate the materiality of a defendant’s misrepresentations. 67

Considered in combination with the District Court’s initial and

supplementary instructions (including its instruction on the advice-of-

counsel defense) the District Court did not err by either commission or

omission and “delivered a correct interpretation of the law.” 68

3. Evidentiary Challenges

We likewise dispose of Defendants’ additional arguments

regarding the admission and exclusion of evidence at trial.

First, none of the evidence presented by the Government “fall[s]

within the definition [of hearsay] given by Rule 801(c); because it was

not offered to prove the truth of the matter asserted.” 69 Admitted

testimony from the victims’ family members that the victims believed

they were winning cash prizes was introduced to show the effect the

fraudulent prize notices had on the victims’ state of mind—that they

67 Id. at 243. See also Corsey, 723 F.3d at 374 (holding that a reasonable jury could find the

defendants’ misrepresentations material, regardless of whether the victims should have

believed them).

68 United States v. Al Kassar, 660 F.3d 108, 127 (2d Cir. 2011) (quoting Bala, 236 F.3d at 94–

95).

69 United States v. Detrich, 865 F.2d 17, 21 (2d Cir. 1988).

36 believed they had won prizes—not for the truth of the matter asserted

that they had, in fact, won prizes. 70 Likewise the admission of letters

from several attorneys general and accompanying complaints about

the prize notices were not admitted for the truth of the matter asserted

in them but instead to show Defendants’ notice of the existence of

complaints about their mailers and other similar schemes.71 Moreover,

Defendants failed to preserve their argument that the admission of the

letters from the state attorneys general violated the Confrontation

Clause. 72 Upon review, their admission by the District Court did not

amount to plain error. 73

70 See, e.g., JA.967, 997. See Detrich, 865 F.2d at 21.

71 The District Court also gave limiting instructions regarding the evidence on three

occasions. See JA.1169, 1179, 1197.

72 Importantly, “a hearsay objection would not in itself preserve a Confrontation Clause

claim.” United States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2003). The only objections to the

relevant evidence in the record below were to hearsay, Rule 403, and the date of the

underlying complaints. See JA.1156, 1159, 1160, 1169.

73 Because Defendants’ argument was not preserved, we review it for plain error.

Dukagjini, 326 F.3d at 59 (“We conclude that the appellants failed to preserve their

objection to the Confrontation Clause violation, and consequently, we evaluate the district

court's admission of testimony in violation of the Confrontation Clause for plain error.”).

For the plain error standard, see ante note 47.

37 Even assuming arguendo that the evidence introduced was, in fact,

testimonial and violated the Confrontation Cause, Defendants are

unable to demonstrate that the error “affected the appellant[s’]

substantial rights” or “seriously affects the fairness, integrity or public

reputation of judicial proceedings” as the plain error standard

requires. 74 At least four of the relevant letters —from the offices of the

attorneys general of New York, Ohio, Maryland, and North Dakota—

were admitted into evidence with defense counsel noting “no

objection” or otherwise failing to object. 75 To the extent the District

Court allowed additional letters from the offices of attorneys general

to come in, they were cumulative to other evidence clearly establishing

Defendants’ knowledge that their prize notices were legally suspect

and misleading to consumers, so error, if present, was harmless.76

Further, the District Court repeatedly gave a proper curative

74 United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quoting United States v. Marcus,

560 U.S. 258, 262 (2010)).

75 JA.1183, 1184, 1187, 1192.

76 See United States v. Lee, 549 F.3d 84, 90 (2d Cir. 2008) (A Confrontation Clause violation is

harmless if “the evidence would have been ‘unimportant in relation to everything else the

jury considered on the issue in question, as revealed in the record’” (quoting United States

v. Quiroz, 13 F.3d 505, 513 (2d Cir. 1993)).

38 instruction, indeed one with language proposed by Defendants, when

the letters were admitted. 77

Third, the District Court did not abuse its discretion when it

prohibited defense counsel from introducing certain privileged emails

into evidence. On November 15, 2021, the District Court entered a

protective order directing a Government-appointed filter team to

provide Defendants with approximately 65,000 emails obtained as

part of an investigation by the USPS. 78 That order also required

defense counsel to make a motion to disclose any such emails at least

21 days before trial. On May 9, 2022, two weeks after trial started and

outside the 21-day notice required by the District Court’s order,

defense counsel notified the Government that it intended to introduce

hundreds of potentially privileged emails subject to the protective

order. 79 There is no dispute that defense counsel had failed to comply

with the November 15, 2021 protective order. The District Court

reviewed the emails in camera and denied Defendants’ request,

reasoning that defense counsel’s failure to abide by the District Court’s

protective order amounted to “sandbagging” and that prohibiting

77 JA.1197; see id. at 1169, 1179.

78 JA.67.

79 JA.1221-22.

39 these items from coming in as evidence was an appropriate sanction. 80

Notably, the District Court offered to sever the aiding and abetting

counts to allow counsel to introduce the evidence before a separate

jury, so that the documents could be reviewed in compliance with the

protective order, but Denkberg’s trial counsel rejected that offer. 81

Protecting “[t]he integrity of the adversary process” and the

“fair and efficient administration of justice,” the District Court

80 JA.1226-27, 1322; see also JA.800–09.

81 See JA.1237. In an exchange with the District Court, defense counsel argued that the

Government would not be prejudiced by his late disclosure because the Government had

had the documents “for years.” JA.1236. But defense counsel failed to appreciate the

distinction between the role (and corresponding access to the documents) of the

Government’s filter (or taint) team versus the Government’s trial team, where the former

had prior access to the documents, but the latter did not. See United States v. Novis, No. 20-

cr-335, ECF No. 44 (E.D.N.Y. Nov. 15, 2021) (District Court’s November 2021 protective

order). Part of the problem with the defense’s attempted late submission was that it would

have deprived the Government of the opportunity to have the filter team review the

thousands of pages of records, where the selected communications were taken from, to

identify related documents and rebut the evidence.

40 properly exercised its discretion by enforcing the notice requirement

in its order. 82

III. CONCLUSION

To summarize, we hold as follows:

1. Sufficient evidence supported Defendants’ convictions,

including evidence from which a reasonable jury could find

Defendants possessed the requisite intent to defraud,

notwithstanding evidence that they relied on the advice of

counsel.

2. The District Court’s supplemental jury instructions were not

in error.

3. The admitted testimony from the victims’ family members

and letters from state attorneys general were not hearsay.

4. Defendants failed to preserve their argument that the

admission of the letters from the state attorneys general

82 Taylor v. Illinois, 484 U.S. 400, 414–15 (1988). We also decline to exercise our discretion to

consider Denkberg’s ineffective assistance of counsel argument as to this issue,

particularly where neither party fully briefed the factual predicate for the claim on direct

appeal. See United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000); United States v. Ortiz,

100 F.4th 112, 118 (2d Cir. 2024).

41 violated the Confrontation Clause and, upon review, their

admission did not amount to plain error.

5. The District Court did not abuse its discretion when it

prohibited defense counsel from introducing certain

privileged items into evidence, as this was an appropriate

sanction for defense counsel’s failure to abide by the District

For the foregoing reasons, we AFFIRM the District Court’s

August 3, 2023, judgments of conviction.

Finally, while the conduct of the attorneys who advised

Defendants over the course of their fraudulent scheme is not directly

before us, the record reveals conduct that may warrant professional

discipline. Accordingly, we direct the Clerk of Court to forward this