20-1620

United States v. Kershner

UNITED STATES COURT OF APPEALS

FOR THE SECOND 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 database (with the notation “summary order”). A party citing a summary order 

must 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 29th day of October, two thousand twenty-one.

PRESENT: Dennis Jacobs,

Steven J. Menashi,

Circuit Judges

Lewis J. Liman,

District Judge.*

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 20-1620-cr

GARY KERSHNER,

Defendant-Appellant,

SANDY WINICK, also known as JERRY 

* Judge Lewis J. Liman of the United States District Court for the Southern District of 

New York, sitting by designation.
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SARRANO, also known as JOHN PETER SMITH, 

also known as ABDIEL VERGARA, also known as 

ROBIN CHEER, also known as GLEN FORMAN, 

also known as KYLE BENDFORD, also known as 

STEPHEN THOMPSON, GREGORY CURRY, 

KOLT CURRY, also known as MICHAEL EAST, 

GREGORY ELLIS, JOSEPH MANFREDONIA,

also known as MAURIZIO,

Defendants.†

____________________________________________

For Plaintiff-Appellant: ROBERT POLLACK, Assistant United States 

Attorney (David C. James, Mark E Bini,

Assistant United States Attorneys, on the 

brief), for Breon S. Peace, United States 

Attorney, Eastern District of New York, 

Brooklyn, New York

For Defendant-Appellant: SYDNEY SPINNER (Steve Zissou, on the brief), 

Steve Zissou & Associates, Bayside, New 

York

Appeal from a judgment of conviction by the United States District Court 

for the Eastern District of New York (Vitaliano, J.).

† The Clerk of Court is directed to amend the caption as set forth above.
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Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the grant of summary judgment by the district court is 

AFFIRMED.

Defendant-Appellant Gary Kershner appeals the judgment of conviction 

entered by the district court on May 6, 2020. Kershner was convicted of five counts 

of wire fraud and securities fraud and two counts of providing false statements to 

the FBI. Kershner was found guilty of participating in a “pump and dump” stock 

trading scheme in which he artificially inflated the value of penny stocks to be sold 

later at a profit. He was sentenced to concurrent terms of thirty months in prison

on each count, a special assessment of $600, restitution in the amount of 

$873,473.06, and two years of supervised release.

On appeal, Kershner argues that (1) his counsel was constitutionally 

ineffective, (2) his counts of providing false statements to the FBI were improperly 

joined with other charges in the indictment, and (3) he was denied a fair trial by 

the admission of improper evidence. We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal.
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I

The record does not support the conclusion that Kershner’s counsel was 

constitutionally deficient. Under Strickland v. Washington, 466 U.S. 668 (1984), and 

its progeny, a criminal defendant must clear two bars to establish ineffective 

assistance of counsel. First, the defendant must establish deficient performance by 

showing that, “in light of all the circumstances, the acts or omissions of trial 

counsel were outside the wide range of professionally competent assistance.” 

United States v. Nolan, 956 F.3d 71, 79 (2d Cir. 2020). Second, the defendant must 

establish prejudice by showing that there was “a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. 

Kershner cannot meet either bar. First, his attorney’s representation did not 

fall below an objective standard of reasonableness. Decisions about which 

witnesses to call are typically matters of attorney strategy, and the defendant 

therefore “must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 

689. Kershner does not overcome that presumption here. He speculates that 

witnesses his trial counsel declined to call would have offered testimony helpful 
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to his case, but—as the district court properly determined in denying Kershner’s 

motion for a new trial—he has not shown that those witnesses would necessarily 

have done so or that the witnesses would not have incriminated him further in 

cross-examination. Under these circumstances, Kershner has not established that 

his attorney’s representation was unreasonable.1

Second, even if Kershner could show that his attorney’s representation was 

deficient, he cannot demonstrate that the representation prejudiced him. The 

evidence against Kershner was substantial and included hours of recorded 

telephone calls with co-conspirators and testimony by two cooperating witnesses. 

The jury heard Kershner in recorded conversations describing his fraudulent 

activities—such as forging signatures, creating fraudulent documents, and issuing 

false press releases—that furthered the pump-and-dump scheme. Given this 

1 Similarly, Kershner’s allegations that his attorney did not adequately prepare for trial 

are insufficient to establish ineffective assistance. Kershner acknowledges that his 

attorney met with him before trial but claims that the attorney failed to investigate 

exculpatory witnesses due to cost, and he objects that if his attorney had met with him 

more, he might have known to call certain witnesses or might have more aggressively 

cross-examined the government’s case. But Kershner provides no support for his claim 

that counsel chose not to act due to cost, and as the district court noted, this argument is 

highly speculative. By Kershner’s own admission, this was a “complex case.” Appellant’s 

Br. at 17. The attorney might have decided to spend more time with the evidence or 

otherwise directed efforts and funds toward a different strategy than Kershner now 

advocates in retrospect.
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evidence, Kershner cannot establish that his trial attorney’s conduct altered the 

outcome of his case.

Indeed, as the district court noted, even assuming Kershner is correct about 

the testimony that other witnesses would have offered, such testimony would not 

be exculpatory. Kershner argues that witnesses would have testified that the 

relevant companies were legitimate businesses. But, as the district court explained, 

“evidence of a bona fide business enterprise” is not “incompatible with a finding of 

fraud” with respect to “Kershner's role in the charged misrepresentations in the 

trading in securities of these companies.” Gov’t App’x 31-32. 

II

Kershner argues on appeal that his counts were improperly joined. But he 

did not raise the issue of misjoinder or move for severance in the district court. 

Even after he was represented by new counsel, Kershner did not argue that the 

failure to raise the issue should be excused for “good cause.” Fed. R. Crim. P. 

12(c)(3). Accordingly, his claim of improper joinder is waived. Even if it were not, 

Kershner’s false statements to the FBI, made to cover up the pump-and-dump 

scheme, were also “connected with or constitute[d] parts of a common scheme or 
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plan” or were part of “the same series of acts or transactions” as the underlying 

fraud, and joinder was warranted. See generally Fed. R. Crim. P. 8.

Kershner’s claim of retroactive misjoinder is meritless. As our court has 

explained, “‘Retroactive misjoinder’ arises where joinder of multiple counts was 

proper initially, but later developments—such as a district court’s dismissal of 

some counts for lack of evidence—render the initial joinder improper.” United 

States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994). In this case, no such developments 

occurred.

III

Kershner argues that the district court abused its discretion by improperly 

admitting evidence. In United States v. Winick—an appeal from the trial of 

Kershner’s co-conspirator—our court held that the admission of testimony 

regarding his co-conspirator’s role in the scheme and the structure of one of the 

companies involved in the scheme was improper. 792 F. App’x 91, 93 (2d Cir. 

2019). But our court concluded that the erroneous admission of that testimony was 

harmless, given the substantial evidence of the co-conspirator’s guilt. Id. at 94. The 

evidence was also harmless with respect to Kershner. The government “offered 

substantial admissible evidence” supporting Kershner’s conviction. Id. at 95. Some 
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of the improper testimony—concerning the operations of Moneyline Brokers—

was not even relevant to Kershner. We conclude again that the “inadmissible 

portions” of testimony were “cumulative of other properly admitted evidence,” 

id., and it is “highly probable that the error did not affect the verdict,” United States 

v. Dukagjini, 326 F.3d 45, 61 (2d Cir. 2003) (internal quotation marks omitted).

* * *

We have considered Kershner’s remaining arguments, which we conclude 

are without merit. For the foregoing reasons, we AFFIRM the judgment of the 

district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court