20

- 1620 U nited 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 s ummary 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 29 th day of October , two thousand twenty
- one . PRESENT: Dennis Jacobs , Steven J. Men as hi, 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

.2 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 : R OBERT P OLLACK , 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

- Appell ant : S YDNEY S PINNER ( 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.3 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 partici pating in a “pump and dump” stock trading scheme in which he artificially inflate d 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, restitut ion 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 issu es on appeal.4 I T he 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 w ide 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 at torney 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 helpful5 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 Se cond, even if K ershner could show that his attorney’s representation was deficient, he cannot demonstrate that the representation prejudiced hi m . The evidence against Kershner was substantial and included hours of recorded tele phone calls with co

- conspirat ors and testimony by two cooperating witnesses. T he 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

- d ump 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 attor ney 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 a s the district cou rt 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 st rategy than Kershner now advocates in retrospect

.6 evidence, Kershner cannot establish that his trial attorney’s conduct altered the outcome of his case. Indeed, as the district court noted, even assuming Kersh n er is correct about the testimony that other witnesses would have offere d, 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 i mproperly joined. But h e 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 constitu t e[d] parts of a common scheme or7 plan” o r 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. Kersh n er’s claim of retroactive misjoinder is meritless. A s our court has explained , “ ‘ Retroactive misjoinder ’ ar ises 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). I n th is case, no such developments occurred. III Kershner argues that the district court abused its discretion by improperly admitt ing 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 K ershner’s conviction. Id

. at 95. Some8 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 ev idence,” 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 Cou 

### rt