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15-1965 

United States v. Pendergrass

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, at 40 Foley Square, in the City of New York, on 

the 28th day of April, two thousand sixteen. 

 

Present: ROBERT A. KATZMANN, 

 Chief Judge, 

 JOSÉ A. CABRANES, 

 Circuit Judge, 

 LEWIS A. KAPLAN, 

 District Judge.

*

________________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. No. 15-1965 

TERRENCE PENDERGRASS, 

 

 Defendant-Appellant. 

________________________________________________ 

For Appellee: DANIEL C. RICHENTHAL (Lara K. Eshkenazi & Michael A. 

Levy, on the brief), Assistant United States Attorneys, for Preet 

Bharara, United States Attorney for the Southern District of 

New York, New York, NY. 

 

*

 The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of 

New York, sitting by designation. 
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For Defendant-Appellant: JAMES G. FRANKIE, Frankie & Gentile, P.C., Mineola, NY. 

 Appeal from the United States District Court for the Southern District of New York 

(Abrams, J.). 

 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

and DECREED that the judgment of the district court is AFFIRMED. 

Defendant-Appellant Terrence Pendergrass appeals from a judgment of conviction 

entered on June 18, 2015 (Abrams, J.), on one count of willfully violating the constitutional 

rights of an individual, Jason Echevarria, in violation of 18 U.S.C. § 242. Echevarria was an 

inmate housed in a mental health unit of the New York City Department of Correction on Rikers 

Island, where Pendergrass was working as the probationary captain on duty on August 18, 2012. 

A jury found that Pendergrass was deliberately indifferent to Echevarria’s serious medical needs 

after Echevarria ingested a ball of soap that caused him to suffer physical distress and eventually 

led to his death. Pendergrass challenges his conviction and sentence on three grounds: (1) that he 

received ineffective assistance of counsel; (2) that the district court improperly instructed the 

jury; and (3) that his sentence is substantively unreasonable. We assume the parties’ familiarity 

with the underlying facts, the procedural history, and the issues on appeal.

We first address Pendergrass’s ineffective assistance of counsel arguments. We have 

generally expressed a “baseline aversion to resolving ineffectiveness claims on direct review.” 

United States v. Khedr, 343 F.3d 96, 99–100 (2d Cir. 2003) (quoting United States v. Williams, 

205 F.3d 23, 35 (2d Cir. 2000)). Unlike a claim brought pursuant to a 28 U.S.C. § 2255 motion, 

the record on direct appeal typically has not been developed “precisely for the object of litigating 

or preserving the claim and [is] thus often incomplete or inadequate for this purpose.” Massaro 

v. United States, 538 U.S. 500, 505 (2003). In particular, we have noted that “the allegedly 
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ineffective attorney should generally be given the opportunity to explain the conduct at issue.” 

Khedr, 343 F.3d at 100. Nevertheless, we may hear such a claim on direct appeal when the 

“resolution is beyond any doubt or to do so would be in the interest of justice.” Id. (quoting 

United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990) (internal quotation marks omitted)). 

Pendergrass’s ineffective assistance of counsel argument is twofold. He first argues that 

his trial counsel was ineffective because he failed to call witnesses that, Pendergrass asserts, 

were material to his defense. For example, Pendergrass argues that trial counsel should have 

called a former inmate, Jonathan Cabrera, whose testimony may have undermined the credibility 

of one of the prosecution’s key witnesses. He also asserts that counsel should have called the 

correction officers who worked the shift following Pendergrass’s to testify whether anyone 

notified them of Echevarria’s medical condition. However, given the lack of information we 

have about how these individuals would have testified or whether trial counsel had legitimate 

reasons for not calling them to testify, we cannot determine on the basis of the record before us 

whether or not Pendergrass’s “counsel’s representation fell below an objective standard of 

reasonableness,” nor whether he was prejudiced by any such deficiency. Strickland v. 

Washington, 466 U.S. 668, 688, 693 (1984). Accordingly, we decline to rule on the ineffective 

assistance of counsel claim as it relates to trial counsel’s failure to call certain witnesses. 

By contrast, we will consider Pendergrass’s second ineffective assistance of counsel 

claim. Pendergrass argues that trial counsel was ineffective because he failed to object prior to 

the end of trial to the testimony of a government witness on the basis that the witness’s testimony 

violated the principles established in Kastigar v. United States, 406 U.S. 441 (1972). He 

requested a Kastigar hearing after trial and the district court denied the request, ruling that 

Pendergrass was not prejudiced by any error. Accordingly, the record was fully developed below 
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with respect to the second prong of the Strickland ineffective assistance of counsel inquiry. 

Strickland, 466 U.S. at 693.We therefore reach the merits of this argument. See United States v. 

Hasan, 586 F.3d 161, 170 (2d Cir. 2009). 

Pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967), and Kastigar, the government 

may not use in a criminal prosecution any statements that were made by an employee during an 

internal investigation and subject to a grant of immunity, nor any information derived from such 

statements. See generally Kastigar, 406 U.S. at 448–53; see also United States v. Nanni, 59 F.3d 

1425, 1431 (2d Cir. 1995). Prior to the indictment of this case, the Department of Correction 

conducted an internal investigation into Echevarria’s death. As part of that process, Supervising 

Investigator Germaine Difo interviewed Pendergrass on June 19, 2013. Difo later testified at trial 

about the general operation and practices of the prison, about the duties of correction officers and 

captains, and about his personal observations of Echevarria’s cell on the morning of August 19, 

2012. He also testified about how to identify the supervisor’s entries in the prison logbook and 

specifically observed that Pendergrass had made an entry indicating a tour in the logbook on the 

date of the incident. The government used this testimony to help establish its position that 

Pendergrass had lied about performing three tours of the floor during his August 18 shift. 

Pendergrass asserts that Difo’s testimony was tainted by his prior interview of Pendergrass and 

that trial counsel should have alerted the court to the potential Kastigar violation prior to the end 

of trial. Trial counsel first raised the issue and requested a hearing after trial. 

At the sentencing hearing, the district court heard argument on Pendergrass’s request for 

a hearing and found that he had waived the argument by not raising it earlier. However, the court 

also held that, even if the issue had not been waived, “any error in admitting testimony informed 

by defendant’s interview is harmless beyond a reasonable doubt.” App. 243. We agree and 
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conclude that, even assuming arguendo that Pendergrass’s trial counsel’s failure to raise the 

Kastigar issue earlier fell below an objective standard of reasonableness, the failure did not 

prejudice Pendergrass. The vast majority of Difo’s testimony was general in nature and could 

have been provided by other prison officials. Even his conclusion that Pendergrass had written in 

the logbook was based on his general testimony that supervisors’ entries in the logbook are 

written in red. There is no indication that Difo’s interview with Pendergrass in any way steered 

his testimony. For these reasons, we conclude that it is beyond any doubt that the failure to 

object to Difo’s testimony on Kastigar grounds did not prejudice Pendergrass at trial. 

Accordingly, we conclude that his ineffective assistance of counsel claim as it relates to a 

possible Kastigar violation is without merit. 

Pendergrass next challenges his conviction on the basis that the district court improperly 

instructed the jury. To challenge a jury instruction, “a defendant must demonstrate both error and 

ensuing prejudice.” United States v. White, 552 F.3d 240, 246 (2d Cir. 2009) (quoting United 

States v. Quinones, 511 F.3d 289, 313–14 (2d Cir. 2007)). He must show that the instruction he 

requested is “legally correct, represents a theory of defense with basis in the record that would 

lead to acquittal, and the theory is not effectively presented elsewhere in the charge.” United 

States v. Doyle, 130 F.3d 523, 540 (2d Cir. 1997) (quoting United States v. Vasquez, 82 F.3d 

574, 577 (2d Cir. 1996)). 

In reviewing jury instructions, we also review the challenged language in the context of 

the entire charge and discern whether the instruction “delivered a correct interpretation of the 

law.” United States v. Carr, 880 F.2d 1550, 1555 (2d Cir. 1989) (quoting California v. Brown, 

479 U.S. 538, 541 (1987)). The issue is not whether the district court included specific words in 

its instruction, but whether the entire instruction accurately conveyed the law. See, e.g., United 
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States v. Mulder, 273 F.3d 91, 105–06 (2d Cir. 2001) (noting that there was no prejudice when 

the court’s instruction was legally correct, even though it omitted the defendant’s proposed, and 

also legally correct, language); cf. Victor v. Nebraska, 511 U.S. 1, 5 (1994) (holding that “the 

Constitution does not require that any particular form of words be used in advising the jury of the 

government’s burden of proof,” so long as the instructions taken as a whole correctly convey the 

concept of “reasonable doubt”). 

Pendergrass challenges the jury instructions on willfulness and conscious avoidance. We 

will address each in turn. With respect to willfulness, Pendergrass requested that the jury 

instruction include language explaining that “willfulness” means that the defendant acted “with a 

bad purpose or evil intent.” App. 168. In response, the district court amended its instructions to 

include the phrase “bad purpose,” but not the phrase “evil intent.” The relevant portion of the 

instruction read: “[T]o act . . . willfully means to . . . engage in conduct voluntarily and purposely 

with the intent to do something the law forbids. That is to say with a bad purpose either to 

disobey or to disregard the law.” App. 178. 

Pendergrass contends that the court’s omission of the word “evil” essentially lessened the 

government’s burden of proof and “tilt[ed] the litigation from a criminal prosecution toward a 

medical negligence case.” Reply Br. for Defendant-Appellant at 11. In support of this position, 

he largely relies on Screws v. United States, 325 U.S. 91 (1945), in which the Supreme Court 

noted that “willful,” when used in a criminal statute, “‘generally means an act done with a bad 

purpose.’ . . . An evil motive to accomplish that which the statute condemns becomes a 

constituent element of the crime.” Id. at 101 (quoting United States v. Murdock, 290 U.S. 389, 

394 (1933)). However, the plain text of Screws does not require judges to instruct juries using 

both phrases, “bad purpose” and “evil intent,” to adequately define the term “willful,” and we 
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know of no authority that supports such an interpretation. In fact, a number of other circuit courts 

have upheld willfulness instructions pursuant to 18 U.S.C. § 242 that are substantively identical 

to the instructions delivered in this case. See e.g., United States v. Johnstone, 107 F.3d 200, 209–

10 (3d Cir. 1997) (approving an instruction that a person acts willfully under 18 U.S.C. § 242 

where an act “is done voluntarily and intentionally, and with a specific intent to do something the 

law forbids, that is, as relevant here, with an intent to violate a protected right”); United States v. 

Garza, 754 F.2d 1202, 1210 (5th Cir. 1985) (approving an instruction that a person acts willfully 

when “the act was committed voluntarily and purposely with the specific intent to do something 

the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law.”); 

United States v. Couch, 1995 WL 369318, No. 94-3292, at *4 (6th Cir. 1995) (unpublished 

opinion) (noting that “[n]o further instruction that the accused acted with ‘bad or evil intent’ is 

necessary” where the instruction read as follows: “[A]n act is done willfully if it is done 

voluntarily and intentionally, and with the specific intent to do something which the law forbids; 

that is, with an intent to violate a specific protected right.” (emphasis in original)); cf. United 

States v. Pomponio, 429 U.S. 10, 12–13 (1976) (expressly rejecting an argument that a jury 

instruction on willfulness for a crime of fraud or false statements under 26 U.S.C. § 7206(1) 

must include “evil motive” language and upholding a willfulness instruction nearly identical to 

the instruction used in Pendergrass’s case). 

Considering the entirety of the willfulness instruction, we conclude that the district court 

“delivered a correct interpretation of the law.” Carr, 880 F.2d at 1555 (quoting Brown, 479 U.S. 

at 541). Accordingly, we decline to reverse Pendergrass’s conviction on that ground. 

Pendergrass’s challenge to the conscious avoidance instruction fares no better. Because 

he did not object to the conscious avoidance instruction below, we engage only in plain error 
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review. United States v. Crowley, 318 F.3d 401, 414 (2d Cir. 2003). For an error in a jury 

instruction to constitute plain error, “it must be a ‘clear’ or ‘obvious’ deviation from current law 

that ‘affected the outcome of the district court proceedings.’” Id. at 415 (quoting United States v.

Olano, 507 U.S. 725, 734 (1993)). Furthermore, “a reviewing court should only exercise its 

remedial discretion . . . if the error ‘seriously affect[s] the fairness, integrity or public reputation 

of [the] judicial proceedings.’” Id. (quoting Olano, 507 U.S. at 736 (alterations in original)). 

The court’s conscious avoidance instruction appeared as an aspect of the instruction on 

deliberate indifference. After instructing the jury that it could satisfy the deliberate indifference 

element if it found “that the defendant knew of and disregarded Jason Echevarria’s serious 

medical needs,” App. 176, the court provided: 

In the alternative this element can be satisfied by inferences drawn from proof 

that a defendant deliberately closed his eyes to what would otherwise have been 

obvious to him. That means if you find beyond a reasonable doubt that the 

defendant acted with a conscious purpose to avoid learning the truth that Jason 

Echevarria had a serious medical need, then this element may be satisfied. 

Id. at 176–77. Pendergrass argues that this instruction does not adequately state the law; the 

government disagrees and argues that the court’s instruction, at least, is not a clear deviation 

from current law. 

 Nevertheless, we do not need to reach the question of whether the court erred in 

formulating the instruction on conscious avoidance, because we conclude that any such error 

would not have affected Pendergrass’s substantial rights, nor the fairness, integrity, or public 

reputation of the proceedings. Crowley, 318 F.3d at 415. The clear focus of the prosecution’s 

narrative in its summation and rebuttal was that Pendergrass had actual knowledge of 

Echevarria’s serious medical needs. See, e.g., Tr. 1118 (“You’ve learned that [Pendergrass] knew 

that Jason Echevarria was suffering.”); id. at 1119 (“The defendant knew Jason Echevarria 
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needed urgent medical help, but he ignored his pleas for help and let him suffer . . . .”); id. at 

1135 (“He knew Jason Echevarria needed help and he chose to ignore him.”); id. at 1136 (This 

trial “is about whether the defendant, the man in charge, knew an inmate in the area under his 

command was sick, knew an inmate in his area of his command needed help and whether he 

chose to ignore him and the evidence that that is what happened is overwhelming.”); id. at 1179 

(“[T]he defendant had to know that” Echevarria “was not faking it.”). Furthermore, there was 

ample evidence from which the jury could have concluded that Pendergrass had actual 

knowledge of Echevarria’s condition, including the testimony of witnesses who said they told 

him about Echevarria’s serious medical needs after he swallowed a portion of the soap ball, 

testimony of a pharmacy technician and another inmate who observed that Echevarria clearly 

needed medical help, and video evidence showing Pendergrass walking over to Echevarria’s cell 

during the time he was suffering, looking into the cell for several seconds, and then walking 

away. 

In light of the government’s focus on Pendergrass’s knowledge at trial and the significant 

amount of evidence indicating that Pendergrass actually knew of Echevarria’s serious medical 

condition, any error in the district court’s conscious avoidance instruction would not have 

affected the outcome of the trial, nor Pendergrass’s substantial rights. We therefore decline to 

reverse his conviction on that ground. 

Pendergrass’s final challenge regards his sentence to 60 months’ imprisonment, which he 

claims is substantively unreasonable. We review the substantive reasonableness of a sentence for 

abuse of discretion, Gall v. United States, 552 U.S 38, 51 (2007), and “set aside a district court’s 

substantive determination only in exceptional cases where the trial court’s decision ‘cannot be 

located within the range of permissible decisions.’” United States v. Cavera, 550 F.3d 180, 189 
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(2d Cir. 2008) (en banc) (emphasis omitted) (quoting United States v. Rigas, 490 F.3d 208, 238 

(2d Cir. 2007)). Pendergrass asserts that his sentence was substantively unreasonable because, 

inter alia, the upper limit of the Guidelines range was 27 months’ imprisonment, the incident 

was generally a “bizarre scenario,” he has no prior disciplinary record, and he is the only person 

being held responsible for a number of failures in the system that contributed to Echevarria’s 

death. 

“A district court may not presume that a Guidelines sentence is reasonable . . . .” Id. at 

189. Rather, the court must conduct an independent review of all the sentencing factors under 18 

U.S.C. § 3553(a), including the Guidelines range, and may “impose sentences outside the 

recommended range.” Id. However, when the court sentences an individual outside the range, it 

must still “ensure that the justification is sufficiently compelling to support the degree of the 

variance.” Id. (quoting Gall, 552 U.S. at 50). 

Here, the district court explained that the upward variance from the Guidelines range was 

warranted because of Pendergrass’s “indifference and callousness,” App. 323, and the fact that 

“[a]s a result of [his] refusal to get Mr. Echevarria the treatment that he required, he needlessly 

suffered four hours while his insides literally burned, and he ultimately died.” App. 324. 

Although Pendergrass’s job may generally have been very difficult, “one thing would not have 

been difficult, and that was to have allowed Mr. Echevarria to see a doctor.” App. 323. The court 

further noted that Pendergrass not only refused to respond when subordinate correction officers 

informed him of Echevarria’s medical condition, but interfered with their attempts to seek help 

and then attempted to cover up his actions in the incident report following Echevarria’s death. 

The court also considered the fact that a substantial sentence was warranted for deterrence 

purposes, given that “civil rights cases like this one are difficult to investigate and to prosecute” 
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and it is important “to let it be known that such criminal indifference and cruelty will not be 

tolerated.” App. 325–26. 

 Because the district court carefully considered the relevant factors under 18 U.S.C. 

§ 3553(a) and provided reasonable justifications for the upward departure from the Guidelines 

range, we conclude the court’s sentence of 60 months’ imprisonment was “within the range of 

permissible decisions.” Cavera, 550 F.3d at 189 (quoting Rigas, 490 F.3d at 238). Accordingly, 

we affirm the sentence imposed by the district court. 

We have considered all of Pendergrass’s remaining arguments on this appeal and find 

that they lack merit. For these reasons, we AFFIRM the judgment of the district court. 

 FOR THE COURT: 

 CATHERINE O’HAGAN WOLFE, CLERK,