1 16-3740 United States v. Bick 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Co urthouse, 40 Foley Square, in the City of New York, on the 3 rd day of October, two thousand seventeen.
Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , Circuit Judges , J ED S. R AKOFF , District Judge .*

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 16-3740
I AN P ARKER B ICK , Defendant-Appellant

.

_____________________________________ For Defendant-Appellant: J ONATHAN J. E INHORN , Law Office of Jonathan J. Einhorn, New Haven, CT For Appellee: M ICHAEL S. M C G ARRY , Assistant U.S. Attorney for the District of Connecticut ; Deirdre M. Daly, United States Attorney, District of Connecticut (on the brief).

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.2 Appeal from the judgment of the United Stat es District Court for the District of Connecticut (Meyer, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Ian Parker Bick (“Bi ck”) appeals his judgment of conviction entered on November 1, 2016 after a jury trial that resulted in his convicti on of six counts of wire fraud, see 18 U.S.C. § 1343, and one count of money laundering, see 18 U.S.C. § 1957. Bick appeals, arguing that the admission of certain do cuments violated the Confrontation Clause, and challenging the sufficiency of the evidence to support his convictions. In addressing Bick’s various arguments, we assume the parties’ fam iliarity with the underlying facts, the procedural history of the case, and the issu es on appeal, which we reference only as necessary to explain our decision to affirm.
* * * Based on the evidence introduced at his two- week trial, Bick misrepresented to his victims that he was running a successful electr onics business and solicite d loans and investments from them, promising returns of up to 50% in short periods. He repres ented that he would buy smart phones, tablets, and other electronics in bulk at a discount and then sell them for a sizable profit. As relevant here, five witnesses test ified that they lent money to Bick on his representation that he would use the money for his electronics business. In fact, Bick’s company had stopped buying elec tronics at least as of July 2013, despite his representations to th e contrary. He used the money he so licited to pay off previous investors and lenders and to purch ase luxury goods for his own use. As relevant to the money laundering3 count, he used the $50,000 he received from Rosemary Paccione-Burke and her son Robert Burke on July 26 to buy two jet skis and a trailer. On January 8, 2015, a federal grand jury indicted Bick for eleven counts of wire fraud, three counts of money laundering, and one count of making a false statement. Trial commenced in November 2015, and on November 25 the jury convi cted Bick of six count s of wire fraud (for Bick’s July 25 transfer to the Burkes, the Burk es’ July 26 and October 15 transfers to Bick, Paume’s July 29 transfer to Bick, and the Lichtm ans’ September 16 and November 1 transfers to Bick) and one count of money laun dering (for Bick’s purchase of th e jet skis and trailer). Bick filed post-trial motions for judgment of acquitt al and a new trial, renewing a Confrontation Clause objection made during his trial and challenging the sufficien cy of the evidence as to all seven counts of conviction. The court denied Bick ’s motions. Bick was sentenced on October 26, 2016, and filed a timely notice of appeal on November 2, 2016. On appeal, he raises the same arguments he made in his post-tria l motions. We reject all of them.
1. Confrontation Clause Bick’s Confrontation Clause claim relates to the introduction at trial of several documentary exhibits during the testimony of a government agent. These were purported loan and investment agreements drawn up by Bick (a nd sometimes signed by him) that he sent to prospective “lenders” and “investors” other than those victims who testified at trial. Bick objected to these documents’ admission on Confrontation Clause grounds because the documents’ recipients did not tes tify at trial. The district court rejected this argument. The Confrontation Clause protects a criminal de fendant’s “right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. “Alleged violations of the Confrontation Clause are reviewed de novo , subject to harmless error analysis.” United States v. Vitale , 4594 F.3d 190, 195 (2d Cir. 2006). Pursua nt to the Supreme Court’s C onfrontation Clause cases, “testimonial statements by a nontestifying witne ss” may generally not be introduced into evidence “unless the witness is ‘unavailable to testify, and the defendant had a prior opportunity for cross-examination.’” Ohio v. Clark , 135 S. Ct. 2173, 2179 (2015) (quoting Crawford v. Washington , 541 U.S. 36, 54 (2004)). But a statement “cannot fall within the Confrontation Clause unless its primary purpos e was testimonial” — that is, unless the statement, viewed objectively in light of all the relevant circum stances, was made or procured with a primary purpose of “‘creating an out-of-cour t substitute for trial testimony.’” Clark , 135 S. Ct. at 2183 (quoting Michigan v. Bryant , 562 U.S. 344, 358 (2011)). Bick argues that the documents in question were testimonial because they were introduced into evidence with the primary purpose of inculpating him. This argument, however, misconstrues the meaning of testimonial. A statem ent is testimonial for Confrontation Clause purposes if it was originally made or procur ed with the primary purpose of creating an out-of-court substitute for use at a future criminal trial. Clark , 135 S. Ct. at 2183. A statement is

not testimonial if it was made wit hout that purpose but is later introduced at a trial with the primary purpose of securing a conviction. Bick doe s not argue that these various agreements were created for use at his crimin al trial, and indeed conceded at oral argument that they were not. Accordingly, the district court did not err in rejecting his Confr ontation Clause claim.
2. Sufficiency of the Evidence “[W]e review sufficiency of the evidence claims de novo . . . .” United States v. Harvey , 746 F.3d 87, 89 (2d Cir. 2014) (per curiam). But “w e must view the evidence in the light most favorable to the government, crediting every in ference that could have been drawn in the government’s favor, and deferring to the jury’s assessment of witness credibility and its5 assessment of the weight of the evidence.” United States v. Chavez , 549 F.3d 119, 124 (2d Cir. 2008). We “will uphold the conviction ‘if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ United States v. Sheehan , 838 F.3d 109, 119 (2d Cir. 2016) (quoting Chavez , 549 F.3d at 124). Thus, in challenging the sufficiency of the evidence, “defendants face a heavy burden, as the st andard of review is ex ceedingly deferential.” Id . at 119 (quoting United States v. Brock , 789 F.3d 60, 63 (2d Cir. 2015) (internal quotation marks omitted). Bick first challenges his money laundering c onviction, arguing that there was insufficient evidence to prove that his purchase of the jet skis and trailer involved money constituting the proceeds of a criminal offense. 1 We disagree. The evidence at trial provided an ample basis for the jury to conclude that Bick was only able to make these purchases because of the Burkes’ $50,000 transfer to his account — a transfer which was the basis of a wire fraud conviction. Indeed, this evidence demonstrated that before the transfer, Bick had insufficient funds to make these purchases. Accordingly, Bick’s sufficiency claim as to money laundering was properly rejected. Bick next argues that there was insufficient evidence to convict him of wire fraud. Bick challenges the sufficiency of the evidence to esta blish a scheme to defr aud and his intent to defraud at the time he soli cited the relevant funds. 2 In particular, Bick point s out that pursuant to

1 Money laundering has five elements: (1) the defe ndant engaged in a monetary transaction affecting interstate commerce, (2) the transaction involves crimin ally derived property worth more than $10,000, (3) the property was derived from a specified unlawfu l activity, (4) the defendant knew the transaction involved proceeds of a criminal offense, and (5) th e transaction took place in the United States or the defendant is a U.S. person. 18 U.S.C. § 1957.
2 Wire fraud has three elements: the prosecution must prove the defendant (1) had a scheme to defraud, (2) defrauded a victim of money or property, and (3) used the wires to effectuate this scheme. 18 U.S.C. § 1343; United States v. Binday , 804 F.3d 558, 569 (2d Cir. 2015), cert. denied , 136 S. Ct. 2487 (2016) and 136 S. Ct. 2488 (2016). The government may prove the existence of a scheme to defraud by establishing6 the terms of the loan agreements with the allege d victims, he could use their money for business purposes, and paying back past inve stors was a legitimate business e xpense. Further, he asserts, there was insufficient evidence that he entered into these agreements intending never to perform. This argument, too, is without merit. Th e jury heard testimony that Bick had stopped purchasing electronics as of Ju ly 2013, the very time that he began soliciting money from his victims. The jury thus had a basis on which to c onclude that Bick could not have used the money for business purposes because his business wa s no longer operating when he solicited and received the victims’ money, and therefore that he never intended to perf orm in accordance with the agreements. Moreover, there was ample evidence that Bick made material misrepresentations about the success of his electronics business in July 2013 and thereafter — at a time when the business was defunct — to induce his victims to tu rn over funds. Finally, the loan agreements did not permit the funds to be used for personal expe nses, and there was substantial evidence that Bick spent proceeds of his scheme on recreation and luxury items. Accordingly, the jury had more than enough evidence on which to base its verdict as to each of the wire fraud counts of which Bick was convicted.
*** We have considered Bick’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

that the defendant made material misrepresentations to victims with fraudulent intent (such as when a defendant makes representations about his futu re performance, intending never to perform). United States v. Weaver , 860 F.3d 90, 94 (2d Cir. 2017) (per curiam).