14 -1 52 (L)

Uni ted S tates v . Rutigl i ano, Le sniewski , Baran

UNITED STATES COURTOF APPEAL S FOR THE SE COND CIRCUIT August Term, 2014 (Argued: March 26, 2015 D ecided: June 22, 2015) Docket Nos . 14-152(L), 14-759, 14-1339

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x UNITED STATES OF AMERICA, Appellee,

- v.- JOSEPH RUTIGLI ANO, PETER J. LESNIEWSKI, MARIE BARAN, Defe ndants-Appellants. *

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Before : JACOBS and CHIN, C ircuit Ju dges, and WOLFORD ,

District Judge. * *

The Clerk ofCourt is re spectfully di rected to amend the o fficialcaption as set * forth above

. The Honor able Elizabeth A. Wolford, of the United States District Court for * * the Wester n District of New York, s itt ing by designation.Joseph Rutigli ano, Peter J. Le sniewski, and Marie Baran appe al from

judgments of convicti on enter ed, following a jury trial, in the United States District Court for the S outhern D istrict of New York (Marre ro, J.). The defendan ts were c onvicted of (variously) conspiracy to comm it m ailfraud, wire fraud, and health care fraud, as well as substantive counts of these offense s, and one count of making false statements, for their roles in a dec ades-long sche me to defraud the Un ited States Rail road Retirement Board into awarding fraudulent disabili ty annuity paym ents to Long Island Rail road re tirees. We conclude that the govern ment prese nted sufficient evidence as to venue, that defe ndants cannot succe ed on a theor y that venue was improperly manufactured, and that no “substantial contacts” i nqui ry is required wher e (as here ) the defen dants did not argue to the district court that prosecution in the SouthernDistrict of New York cause d them hardship, prejudice, or otherwise undermined the fairne ss of their trial. Ruti gli ano argues that he was prose cuted outside the statute of li mit ations period. We apply the ordinary r ule that the

rece ipt of profits from an economical ly m otivated conspiracy (here , disabili ty pension payments) cons titutes an over t act in furtherance ther eof, and reject applicati on to this case of the limi ted exce ption, articul ated in United States v.

2Grim m, 738 F.3d 498 (2d Cir. 2013). And, we reject defendants’ ch all enges to the

jury instructions, which we conclude were pr oper. Allof the other challenges raised b y the defen dants are co nsidered an d rejected in a summary order issued simul taneously with this opinion. For the following reasons, and thos e stated in the summary order , we affirm the judgm ents of conviction. JOSEPH W. RYAN, JR., Melvil le, New York, for App ellant Ru tigl iano. JOHN D . CLINE, San Fr ancisco, California, for Appe ll ant Lesniewski. ANNE J. D ’ELIA, Kew G ardens , New York, for Appe ll ant Baran. DANIEL B. TEHRANI (with Nicol e Friedlander and Michael A. Levy, on the brief), for Preet Bhar ara, United States Attorney for the SouthernDistrict of New York, for App ellee. DENN IS JACOBS, C ircuit Ju dge: The Long Island Rail road (“LIRR”) pension plan allow s employees with 20 years or more of ser vice to retire at age 50 with a pension equal to hal f of their pre-r etirement income. Many LIRR employees doubled their pen sions by

3maki ng false disabili ty clai ms to the Rail road Retirement Board (“RRB”) at the

tim e of their planned r etirement. For their roles in criminally exploi ting these overlapping ben efits, defendan ts Joseph Rutigli ano, a former L IRR conductor and president of the union local, Peter J. Les niewski, an orthopedic physician, and Marie Baran, a former RRB employee, wer e convicted by a jury in the United States District Court for the Souther n District of New York (Mar rer o, J.) of (variously) conspiracy to commit

mailfraud, wire fraud, and h ealth care fraud, as well as substantive counts of these offense s, and one c ount of making false statements. On appeal, defe ndants raise a ho st of challenges. We hold that venue was proper , that defendants cann ot succeed on a the ory of manufactured venue , and that no “substantial contacts” i nqui ry is required wher e (as he re) the defendan ts did not argue that prosecution in the SouthernDistrict of New York cause d them hardsh ip, prejudice, or otherwise unde rmined the fairness of their trial. We reject Ruti gli ano’s contention that he was pr osecuted for conduct outside the statute of li mit ations period. We apply the ordinary r ule that the

rece ipt of profits from an economical ly m otivated conspiracy (here , disabili ty pension payments) cons titutes an over t act in furtherance ther eof, and reject the

4argument that the li mit ed exc eption articul ated in United States v. Grim m, 738

F.3d 498 (2d Cir. 2013), applies in this case. We conclude that the defen dants’ claim s of er ror with res pect to the jury instructions given on the conspiracy char ge, and on the meaning of “occupational disabili ty” are without m erit. Allof the other challenges raised b y the defen dants are co nsidered an d rejected in a summary order issued simul taneously with this opinion. We affirm the judgments of convicti on.

BACKGROUND At trial, the govern ment prese nted evidence that employees wh o were fit, steady, and faultless in attendance schemed to cr eate a “paper trail” for the onset of disabili ties at the hour they wer e re ady to retire from employment by the LIRR. See, e.g., Trial Tr. at 168-72, 344, 375-76, Unit ed States v. Rutigli ano, No. 11-cr-1091, (S.D .N.Y. 2013) (“Trial Tr.”). These employees, with the assistance o f Ruti gli ano and Baran, p re-planne d their false claim s of occupational di sability by visit ing go-to doctors, li ke Lesn iewski.

5In addit ion to obtaining his own fraudulent disabili ty benefits, Rutigl iano

helped other LIRR empl oyees make false claims of disabil ity, charging “around a thousand dollars” per application. I d. at 475, 486, 499. The jury heard tes tim ony from cooper ating wi tnesse s who submitted false appli cations for disabili ty bene fits; one testified that i t was “common knowl edge and ope nly discussed that you could pay particu lar people, includi ng . . . Rutig li ano [] to complete the[] disabili ty appli cations[,] fil ling them with l ies.” See , e.g., id. at 171, 325-26, 477, 680, 821, 943, 2647. Another witness te stified that he paid Rutigl iano $1,000 to complete his appli cation because he knew Rutigl iano woul d “say whatever neede d to be said to get [him] the disabil ity m oney that he wanted.” Id. at 2647. In providing these suppose d “consulting” services, Rutigl iano did not endeavor to find out i f the applicants were actually di sabled in any way. Id. at 498-99. Rather, he fill ed out the applicati ons, often without consultati on with the employee, with repres entations he knew to be requisit e for ob taini ng a disabili ty pension. Id. at 520. At trial, an auditor identi fied applicat ions prepar ed by Ruti gli ano base d on the use of the same boilerplate language to describe indivi dual affl icti ons of many retiree s. Id. at 1557-66, 1721-25.

6Baran’s hus band, Gus--a former LIRR empl oyee and unindicted

coconspirator--ob tained a fraudulent disabil ity pension with the assistance of Lesniewski. Id. at 1292-94. Baran learned the ropes from her h usband, and whe n she r etired from the RRB, came to be known (like Rutigl iano) as a “facili tator” of fraudulent disabil ity benefit appli cations. Id. at 1113-14, 1594-1610. Baran fil led out the fraudulent appli cations with lit tle input from her c li ents; advised them on how to answer questions fro m the RRB; and gave them pointers on how to avoid suspicion by, for ex ample, conti nuing to vi sit doctors after submitting their disabili ty appli cations. Id. at 842-51, 1217-23. Baran, who testifi ed in her own defens e at trial, m aintai ned that she filled out the disabil ity appl icati ons in good faith, based on information provided by clients and their treating physicians. See id., e.g., at 2270-71. Baran’s clients, however , testified that Baran fil led out and submitt ed on their b ehalf fabricated applicati ons for b enefits that bore no

rese mblance to their physical condit ions. Id. at 855-56, 1286. As one of the go-to doctors, Lesn iewski provided medicalnarratives to LIRR empl oyees de signed to convince the RRB that these employees had occupational di sabilities--even though the se employees we re wor king at the ti me they consulted with Lesniewski (and Lesniewski never asked them whether they

7were ab le to continue to perform their jobs). Id. at 188-89, 192-93, 377-86.

Lesniewski submitted medi cal reports to the RRB re commending hundreds of LIRR workers for f raudulent disabil ity benefits, and charged $850 p er nar rative. See id. at 52. As to venue, Les niewski and others sub mit ted insurance claims (by wire) to a health insurance company in the Souther n District of New York for the purpose of supporting fraudulent disabili ty clai ms. Clients of Ruti gli ano and Baran visited doctors in the Souther n District (and elsewher e) to support their fraudulent applicat ions. And when the RRB r equested re- certificati on of the disabili ties that ostensibly entit led the coconspirators to continui ng bene fits, Ruti gli ano and other members of the conspiracy se nt false assuranc es by mail to the RRB at an address in the Southern D istrict. At trial, the defen dants requested that the jury be instructed: To determine where venue lies you must consider in which district there were s ubstantial contact s by the defendan ts to commi t the all eged offe nses c harged. Substantial contacts takes into account a number of factors including the situs of the defe ndant’s acts, the elements and nature of the crime, [and] the locus of the effect of the cr iminal conduct. Gov’t SupplementalApp. at 21. The district court declined to give the requested

8charge, instead instructing that “the govern ment must prove that some act in

furtheran ce of the char ge you are con sidering occurre d in the Southern D istrict of New York. . . . The government has satisfied it s venue ob li gation i f you conclude that it is more lik ely than not that any act in further ance of the cr imes charged in each count occurr ed in the Souther n District of New York.” Le sniewski App. at 796. Allthree de fendants wer e convicted of conspiracy to commit m ailfraud, wire fraud, and he alth care fraud, and cons piracy to defraud the RRB. Rutigl iano was convicted of multiple counts of substantive mai l fraud and wire fraud, and one count of making false statements. Lesniewski and Baran wer e each convicted of the three substantive fraud counts. 1 The defen dants moved for judgments of acquit tal on the ground that the government pr esen ted insuffici ent evidence to e stablish that venue was prope r in the Souther n District. Ruti gli ano also moved for a judgment of acqui ttal(with the exce ption of a few counts) on the ground that the gove rnment failed to prove that the conduct for which he was ch arged occur red within the statute-of- The district court sentenced Rutigli ano principallyto 96 months’ 1 imprisonment, Lesniewski principal ly to 96 m onths’ imprisonment, and Baran principall y to 60 months’ im prisonment. 9li mit ations. See Mot. for Acqui ttal, Dkt. No. 487, Rutigl iano, 11-cr-1091. The 2 district court denied the moti ons. This appeal followed.

DISCUSSION Defe ndants argue that the gove rnment failed to prove prop er ve nue, or improperly manufactured it, and that the district court erre d by faili ng to instruct the jury that venue could only be established if the gover nment proffer ed evidence of the d efendan ts’ “substantial contacts” wi th the jurisdicti on. Ruti gli ano also contends that his conviction (except with respe ct to the substantive mailfraud and false statements counts) can not stand because his prose cution was barred by the statute of lim itat ions. The defen dants also challenge the court’s instructions to the jury on the cons piracy charge, an d on the meaning of “occupationaldisabili ty.” I “Both the Sixth Amendment and Fed. R. Cr im. P . 18 require that a defendan t be tried in the district where his cr ime was comm itt ed.” United States

Ruti gli ano made no statute of lim itat ions argument with respect to one count 2 of mailfraud, one count of wire fr aud, and one count of making a false statement. 10v. Tzolov, 642 F.3d 314, 318 (2d Cir. 2011) (internal qu otation m arks omitted).

“When a fe deral statute defining an offense doe s not specify how to deter mine where the crime was commi tted,” we look to the “nature of the crime alleged and the location of the act or acts constituting it.” I d. (internal quot ation marks omit ted). For an offe nse de emed to be “continuing,” venue may be pr oper in more than one location. See United States v. Kim, 246 F.3d 186, 191 (2d Cir. 2001) (explaining that venue in a continuing offense is “proper in any district in which the offens e began, continued, or concluded”). A conspiracy is a continuing offense in which “venue is proper in any districtin which an overt act in furtheran ce of the cons piracy was commi tted by any of the cocons pirators. The defendan t need not have beenpres ent in the district, as long as an overt act in furtheran ce of the cons piracy occurre d there.” Un ited States v. Geibel, 369 F.3d 682, 696 (2d Cir. 2004) (internal quotati on marks omitt ed). “Any offense involving the use of the mail s . . . is a continuing offense and . . . may be inqui red of and prose cuted in any districtfrom, through, or into which such . . . mailmatter . . . moves.” 18 U.S.C. § 3237(a). Wire fraud is li kewise a continuing offense. Se e Kim, 246 F.3d at 191. Although we have n ot

11previously considered the question, we now hold that a scheme to vi olate the

health care fr aud statute is a conti nuing offense. See 18 U.S.C. § 1347(a) 3 (criminal izi ng the knowing or will ful execution or attempt to execute a “scheme or artifice” to “defraud any he alth care ben efit program” or “obtain, by means of false or fraudulent pre tenses , repr esen tati ons, or p romises, any of the money or proper ty owned by, or unde r the custody or control of, any health care b enefit program”); se e also United States v. Mermelstein, 487 F. Supp. 2d 242, 250 (E.D.N.Y. 2007) (“A s cheme pros cribed by S ection 1347 may properly be ch arged as a continuing offense.” (citing cases)). The he alth care fraud sche me “was commi tted in al l of the places that any part of it took pl ace, and ven ue . . . was appropr iate in any of them.” Uni ted States v. Rodriguez-Moren o, 526 U.S. 275, 282 (1999). The govern ment bears the burde n of proving that venue is prop er as to each count. United States v. Bee ch-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir. 1989). But because venue is not an element of the offe nse, “the gove rnment Signifi cantly, we have previously held that a scheme to violat e the ban k 3 fraud statute, 18 U.S.C. § 1344, con stitut es a continuing offense an d that statute i s substantiall y simi lar to § 1347. See United States v. Magass ouba, 619 F.3d 202, 207 (2d Cir. 2010) (obs erving that it i s “well established that bank fraud is a continuing offense”). 12need e stablish itonly by a prepon derance of the evidence.” Un ited States v.

Rami rez, 420 F.3d 134, 139 (2d C ir. 2005). A In chall enging the sufficiency of the gover nment’s venue e vidence, defendan ts “bear [] a heavy bur den, be cause the r eviewing court is requi red to draw all permissible i nfere nces in favor ofthe govern ment.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). 1 As to the mailfraud conspiracy an d substantive mailfraud counts, the government adduced e vidence that conspirators, including Ruti gli ano, resp onded to an inqui ry from the RRB by mailing false disabili ty re-cer tifi cation forms to an RRB address in the Southern D istrict of New York. The coconspirators did so in order to per petuate their fraud, and ther eby se cure continued receipt of the disability bene fits that were the object of the s cheme. Se e Trial T r. at 991. Accordingly, the “acts constituting the [mailfraud] crime” clearly “im plicat e” the Southe rn D istrict, rendering venue there p roper . United States v. Magassouba, 619 F.3d 202, 205 (2d C ir. 2010).

13Defe ndants argue that the r e-cer tifi cation mai li ngs took place after the

conspiracy and mail fraud scheme were over, and thus we re not in further ance of the crimes. We disagre e. These re-ce rtificat ions were s ent in order to ensure continued bene fits and to prevent the RRB from discover ing the ongoing fraud. See United States v. Lane, 474 U.S. 438, 451- 52 (1986) (“Mail ings occurring after the rec eipt of the goods obtained by fr aud are within the statute i f they were designed to lullthe victim [] into a false sense ofsecurity, postpone the ir ult imat e complai nt to the authoriti es, and the refor e make the appr ehens ion of the defendan ts less likelythan if no mai li ngs had taken place.” (intern al quotati on marks omitt ed)); see also United States v. Tocco, 135 F.3d 116, 125 (2d Cir. 1998) (“Mail ings related to an insurance inves tigation that are a part of the customary steps taken b y an insurance car rier to decide whe ther to pay a claim u nder a policy . . . are in furtherance of the fraudulent sche me . . . . A rational j ury could conclude that these mailing involved routine requests for information needed to advance the insure r’s nor mal cl aim processing and there fore fur thered the scheme.”). Lesniewski and Baran co ntend that, as re levant to them, the recertificati ons wer e not part of the mail fraud or the consp iracy to comm it that

14crime, because the y were n ot directly responsible for the completi on and mail ing

of the re -certificati on forms. But, as we have repe atedly held, mai l fraud schemes do not require a defen dant to know about the specific mai li ng. Rather, “it need only be shown that [the de fendant] acted with knowledge that the use of the mail s willfollow in the ordinary cour se of bus iness, or that such us e can

reaso nably be for esee n, even though n ot actual ly i ntended.” Tocco, 135 F.3d at 124 (internal quot ation marks omi tted). The govern ment prese nted sufficient evidence for a jury to conclude that Lesniewski unders tood and contemplated that hi s patients would send paperwor k to the RRB to establish and mai ntain their benefits for the ir all eged disabili ties. Lesniewski himself com pleted periodic “sickness be nefit” forms for his patients to enable them to receive additional fraudul ent ben efits, and completed addit ional periodic forms to submi t to private insurers to obtain unwarranted bene fits. It was likewi se clear to Bar an, as a former RRB employee, that the scheme would entail m ail ing to the RRB forms reporting the conspirators’ fitness . And for pur poses o f the conspiracy, ve nue may be grounded in any act per formed by any con spirator under taken to further the object of the cons piracy. See Tzolov, 642 F.3d at 319-20.

152

As to the wire fraud convictions, the gover nment proved that unlawfull y obtained disabili ty benefits, wired to participants in the scheme, traveled thr ough

or over waters within the Eastern D istrict, whi ch are s tatutoril y defined to also be part of the Southe rn D istrict. See 28 U.S.C . § 112(b), (c); United States v. RamirezAmaya, 812 F.2d 813, 816 (2d Cir. 1987) (concluding fl ight over “body of water that li es within the joi nt jurisdict ion of the Southernand EasternDistricts of New York . . . was sufficient to make venue in the Souther n District proper ”). Defe ndants conce de that venue lies wher e a wire in further ance of a scheme b egins its course, continues or ends. S ee United States v. Gilboe, 684 F.2d 235, 239 (2d Cir. 1982) (“[T]he pr oceeds of the fraud wer e all transferr ed through New York s o that such commerce moved from, through, or into the Southern District of New York. Ther efore , venue was pr oper in that district.” (i nternal quotat ion marks omi tted)). Their contention is that the wiri ng of ben efits was not in furtherance of the conspiracy, b ut rather occur red after the object of the scheme had b een accomplished. However , “a scheme to defr aud is not compl ete until the pr oceeds have beenrece ived.” United States v. Vil ar, 729 F.3d 62, 95 (2d Cir. 2013) (inter nal

16alteration and qu otation m arks omitted); see United States v. Menn uti, 679 F.2d

1032, 1035 (2d Cir. 1982) (“[A] cons piracy continues untilthe conspirators rece ive their anticipat ed economic bene fits.”). Thi s doctrine has its lim its, but at l east the first wiring (and many m ore) must be de emed in furtheran ce of the cons piracy. For venue purpose s, it therefore matters that the fraudulently obtai ned disability annuity paym ents wer e wired through the SouthernDistrict. 4 3 Also suffici ent was the evidenc e establishing that venue was pro per for the health care fr aud charges . The defen dants themselves may not have be en physicall y pres ent in the Souther n District of New York, b ut their prese nce is

unneces sary for proper venue. S ee United States v. Rommy, 506 F.3d 108, 120 (2d Cir. 2007). Although wi rings through the S outhern D istrict in fact took place during the 4 relevant statue of lim itat ions, the govern ment was not required to so prove for purpose s of establishing that venue was pro per. S ee United States v. Tannenbaum, 934 F.2d 8, 13 (2d Cir. 1991) (“Although the gover nment must prove that each crimehas be en timely prosecuted in the prope r district, we discern no valid reasonto burden the government with proving that the overt act establishing proper venue also must have bee n commi tted within the statute of li mit ations.”). This i s so be cause “[r]ules gove rning venue and li mit ations serve disti nct purpose s.” Id. Statutes of li mit ations “ limit exposureto crimi nal prose cution to a certain fi xed pe riod of tim e” while the rules govern ing venue li mit prose cution to certain ju risdicti ons. Id. (internal quot ation marks omi tted). 17Lesniewski submitted i nsurance claim s to a health insurance company

(and rec eived payments) in connection with medi cal visi ts and proce dures undertaken fo r no r eason othe r than to dece ive the RRB. These payments wer e made by wire, and traveled thr ough the waters ove r which the Souther n and Eastern D istricts share jurisdiction. The submi ssion of fraudulent health care reimbursement claims li es at the cor e of conduct criminali zed by § 1347. Clients of Ruti gli ano and of Baranvisit ed doctors in the S outhern D istrict, and at least one cooper ating wi tness b olstered his fraudulent claimby visiti ng a medicalpractice that sent bills for the unnece ssary pr ocedure s from its office in the Souther n District. Ruti gli ano and Baran’s clients then li sted these visit s on their disabili ty appli cations. We there fore con clude that the government pres ented sufficient evidence that the “acts cons tituting” the subs tantive health care fr aud crime, and the conspiracy to commit that crime, i mpli cated the Southern, as well as the Eastern, D istricts. Unit ed States v. Ree d, 773 F.2d 477, 480 (2d Cir. 1985). B Defe ndants did not argue manufactured venue below, and cannot succe ed on plain error review. Se e Rommy, 506 F.3d at 127 (“[T]his court has neve r 18vacated a conviction on the basis of manufactured venue.”). In ar guing

manufactured venue, de fendants impli citly concede that their acts e xtended into the Souther n District whil e arguing in effect that the Cour t should disregard these acts b ecause the government induced them to be made in the So uthern District. Other circuit courts have e xplici tly rejected the manufactured venue doctrine and concluded that a defend ant’s “interests ar e fully protected by Fed. R. Crim. P. 21(b).” United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir. 2006) (“The e ntrapment doctrine pr otects the defe ndant against manufactured offense s . . . it does not lim it venue.”); see also United States v. AlTalib, 55 F.3d 923, 929 (4th Cir. 1995) (“Ther e is no such thing as ‘manufactured venue’ or ‘venue en trapment.’”). We have, h owever, p reviously recognized the possibili ty that, under certain circumstances, ven ue manipul ation mi ght be improper. Se e United States v. Myers , 692 F.2d 823, 847 n.21 (2d Cir. 1982) (obser ving that venue mi ght not be pro per whe re the p rose cution “l ures a defendan t to a distantdistrict for some minor eve nt simpl y to establish venue” in a prefe rre d jurisdict ion).

19“Venue in fede ral crimi nal cases is controlled by a complicated interplay of

constituti onal provisions, statutes, and rules.” United States v. Rowe, 414 F.3d 271, 277 (2d Cir. 2005) (internal alteration and quotation marks omi tted). Even if, in our Circuit, the manufactured venue doctrine pr ovides an additional safeguard against “bias and inconven ience,” id., in a prosecution of a continuing offense , “[t]he concer n over a distant district is crit ical, as the provision for trial in the vicini ty of the crime is a safeguard against the unfairness and hards hip involved when an accused is pr osecuted in a remote place.” United States v. Spriggs, 102 F.3d 1245, 1251 (D.C . Cir. 1996) (alterations and internal quotat ion marks omitt ed); see also United States v. Cabr ales, 524 U.S. 1, 6 (1998) (obs erving our Nation’s founder s’ “complai nts against the King of G reat Britain, li sted in the Declaration of Independe nce, included his transpor tati on of colonists ‘beyond Seas to b e tried’”). Here , the rec ord sugges ts that the coconspirators s ent disabili ty recertificati on mail ings into the Southern D istrict in order to ensure that they continued to receive fraudulent be nefits; they were not lured to a faraway land. Trial T r. at 991; see also Spriggs, 102 F.3d at 1245 (“[O]bviously there is nothing distant about the District vi s-a-vis its Maryland and Virgi nia suburbs.”). An d

20there is no b asis to conclude that the government pre ferr ed to try these

defendan ts in the Southern D istrict (i nstead of the Eas tern D istrict), or that any unfair advantage was obtained, or that the “con venience of the parties” or the “interest[s] of justice” was subve rted by pr osecution. Fed. R. Crim. P. 21(b). Accordingly, even if the re-ce rtificat ion mai li ngs wer e sen t to the Southern District at the government’s initi ative, defendants canno t sustain their burden of showing err or, much less plain error . See Romm y, 506 F.3d at 127; see also United States v. Bastian, 770 F.3d 212, 220 (2d Cir. 2014) (“We typicall y do not find plai n err or wher e the ope rative legal q uestion is unsettled.” (int ernal quotat ion marks omi tted)). C Defe ndants argue that, eve n if the continui ng offense s for which they wer e convicted occurre d in the Southern D istrict of New York, venue is ne vertheles s improper be cause their conduct did not have “subs tantialcontacts” with the SouthernDistrict. True, “[o]n occasion we have supplemented our ven ue inqui ry with a ‘substantialcontacts’ test that takes into account a number of factors,” including the “site of the defe ndant’s acts” and “the locus of the e ffect of the criminalconduct.” United States v. Coplan, 703 F.3d 46, 80 (2d Cir. 2012) (s ome 21internal quot ation marks omi tted). As we have r ecently explained, howeve r, that

inqu iry is made only i f “the defen dant argues that his pros ecution in the contested district wil l result in a hardship to him, prejudice him, or undermine the fairness of his trial.” I d. (internal quot ation marks and alterations omi tted). Otherwise, pr osecution for a continuing offense, “committ ed in more than one district,” m ay occur “in any district i n which such offens e was be gun, continued, or completed.” 18 U.S.C. § 3237(a) ; see Un ited States v. Johnson, 323 U.S . 273, 275 (1944) (recogn izing that “Congre ss may, to be sure , provide that the locali ty of a crime shall extend over the whole area thro ugh which force pr opelled by an offender operates ”). Here , “we nee d not be conce rned ab out jeopardizing the valu es under lyi ng the substantial contacts tests because [the defen dants cannot] argue that be ing prose cuted in the Southern D istrict i mposed an additionalhardsh ip on [them], prejudiced [them], or under mined the fairness of [the ir] trial.” R amirez, 420 F.3d at 143 (internal qu otation m arks omitted). Accordingly, we i dentify no err or in the district court’s ruling declining to gi ve the “subs tantialcontacts” jury instruction requested by the defe ndants.

22II

Ruti gli ano argues that his pr osecution (other than with res pect to one count of mailfraud, one count of wire fr aud, and the false statements offen se) was barr ed by the s tatute of l imi tati ons be cause the gove rnment failed to prove that he, or one of his coconspirators , commi tted an overt act in furtheran ce of the conspiracy within the li mit ations period. 5 We re view de novo a legal chall enge to whethe r an ongoing consp iracy extende d into the li mit ations period and to whether conduct constitutes an overt act in furtherance o f the conspiracy, s ee United States v. LaS pina, 299 F.3d 165, 173-74 (2d Cir. 2002); but a factual suffici ency challenge is reviewed in the light most favorable to the pros ecution, see United States v. S alameh, 152 F.3d 88, 151 (2d Cir. 1998). We will affi rm the jury’s guilty verdict if any rationaltrier of fact could have found the ess ential elem ents of the ch arged cr ime beyond a

reaso nable doubt.” United States v. De snoyer s, 637 F.3d 105, 109 (2d Cir. 2011).

The original i ndictment was returned on D ecember 19, 2011 and the statute 5 of lim itat ions for all offenses of wh ich Ruti gli ano was convicted is five years. S ee 18 U.S.C. § 3282 (“Ex cept as other wise provided by law, no per son shall be prose cuted, tried, or punished for any offense , not capital, unless the indictment is found or the information is i nstituted wi thin five years nex t after such offe nse shall have beencommi tted). 23Ruti gli ano invokes United States v. Grimm, 738 F.3d 498 (2d Cir. 2013), to

argue that his passive re ceipt of fraudulently obtai ned disability pension payments during the lim itat ions period is insuffici ent to support pr osecution. The narr ow excep tion articul ated in Grim m, however, has no applicabil ity here. The conspiracy in Grimmwas to manipul ate the interes t rate set in a specific type of munici pal investment contract that, by regulati on, was suppose d to be se t by competiti ve bidding. We held that interest payments made by wire over an indefinite and prolonged p eriod even tuall y ceased to b e over t acts in furtheran ce of a consp iracy. Id. at 499. The C ourt thus recogn ized an exce ption to the ordinary rule se t out i n United States v. Salmonese, 352 F.3d 608 (2d C ir. 2003), that a conspirator’s r eceipt of anticipat ed ben efits within the lim itat ions period can, by itself, constitute an overt act in furtherance of an ongoing conspiracy. Id. at 617. Consistent with prece dent in and outside this Circuit, G rimm explai ned that “a conspiracy ends n otwithstanding the rece ipt of anti cipated profits where the payoff mere ly consists of a lengthy, indefini te ser ies of ordinary, typicall y noncriminal, u nilat eral actions andthere is no e vidence that any concer ted activi ty posing the special societal dangers of conspiracy is stilltaking pl ace.”

24738 F.3d at 502 (internal quotati on marks and alterations omitt ed).

No exc eption to Salmonese is justi fied here . Ruti gli ano and his coconspirators engaged, within the li mit ations period, in “measures of concealment” and “other cor rupt intervention.” Id. at 503. Thus, Rut igl iano and his coconspirators mailed false disabili ty re-cer tifi cation forms to the RRB i n order to secure c ontinued payments; cooperating witnesses te stified that they fill ed out the re-c ertificati on form becaus e it was “required to continue to get your railroad disabili ty,” TrialTr. at 991; and evidence at trial suffici ently demonstrated that the cocons pirators wer e aware o f their continuing duty to keep the RRB appr ised as to their ability to work and physical conditi on, id. at 1360. Allformer r ail road employees r eceiving RRB di sability payments rece ived a yearly notice setting forth their obligati on to inform the RRB of any improvement in their physical condi tion. In li ght of the continuing duty to re-cer tify eli gibil ity, the re ceipt of the disabili ty pension payments cannot be viewed as merely the “re sult” of a completed conspiracy. Grimm, 738 F.3d at 503. In any event, conduct arguably constituting additi onal overt acts were commi tted within the lim itat ions period:

25• Cer tain of Rut igl iano’s cli ents first applied for fraudulent disabili ty pension be nefits in 2007;

• Lesniewski continued to see patients and signed false medical narratives thr ough at least 2008;

• Baran did not even b egin providing her se rvices as a “facilitat or” until2008; and

• Coope rating coconspirators tes tifi ed about visits to doctors compli cit in the fraud within the limi tati ons per iod. Finall y, Ruti gli ano’s conce alment from the RRB that he was wor king (albeitas a disabili ty-fraud “consultant”) is a “deliber ate omission” suffici ent to “constitute an overt act for p urposes of the statute of lim itat ions.” United States v. Ben Zvi, 242 F.3d 89, 97 (2d Cir. 2001). Accordingly, the features of the ordinary, noncr iminal payments in G rimm are not pr esen t here an d the conspirators ’ rece ipt of di sability bene fits are proper ly vi ewed as con duct in furtherance of the conspiracy that occurr ed within the lim itat ions period. * * *

26Although Rutigl iano premises his statute-of-lim itat ions challenge on

Grim m--which concerne d only the boundaries of whe n a ser ies of payments can constitute overt acts in furtherance of a conspiracy for statute of li mit ations purpose s--he s umm arily argues that the substantive counts of conviction (except one mail fraud count and the false statement count relati ng to his submission of the re- certificati on form) should also be dismissed. We reject this argument because each of the s ubstantive offense s was base d on a mail ing or wire withi n the applicable li mit ations period. See , e.g., United States v. Eisen, 974 F.2d 246, 263 (2d Cir. 1992) (“[T]he s tatute of l imi tati ons in a mailfraud case r uns from the date of the char ged mail ing.”). III Defe ndants challenge the district court’s instructions to the jury on the conspiracy char ge and on the meaning of “occupational disabil ity.” When a defendan t makes a sufficient objecti on below, “[w]e r eview challenged instructions de novo but willreve rse o nly if al l the instructi ons, taken as a who le, caused a defe ndant prejudice.” United States v. Applins, 637 F.3d 59, 72 (2d Cir. 2011) (internal quot ation marks omi tted). “The defen dant bears the burde n of showing that the requested instruction accurately repr esen ted the law in every

27resp ect and that, viewing as a whole the charge actually gi ven, he was

prejudiced.” Id. (internal alt erations and quotati on marks omitt ed). “A jury instruction i s err oneous if it mi sleads the jury as to the cor rect legal standard or does not adequately inform the jury on the law.” I d. (internal quot ation marks omit ted). A At the charging confer ence, Le sniewski asked the court not to instruct the jury that “it

is rare that a cons piracy can be pr oven by dire ct evidence of an explicit ag ree ment.” TrialTr. at 2605. Lesniewski concede d that this statem ent “may be true,” but argued that the instruction was “almost li ke marshaling the evidence in a cer tain way.” I d. The court rejected this request. The court did, however , grant Lesn iewski’s request that it change the wor d “often” to “sometim es” in the se ntence: “S ometim es, the on ly evidence that is avai lable with resp ect to the existence of a conspiracy is that of disconnected acts onthe part of the alleged indi vidualconspirators.” Id. at 2606. Lesniewski’s challenge fails because the instr uctions were not er roneous . Cf. United States v. Kopstein, 759 F.3d 168, 172 (2d Cir. 2014) (“Instructions are

err oneous if they mislead the jury as to the corre ct legal standard or do not

28adequately inform the jury of the law.” (internal quot ation marks omi tted)). A

“jury’s verdict may be base d entirely on circumstanti al evidence.” United States v. Goffer, 721 F.3d 113, 124 (2d Cir. 2013). And it is true that “the conspiratorial agreemen t . . . may be established by pr oof of a tacit understanding among the participants, rather than b y proof of an e xplici t agreement.” United States v. Santos, 541 F.3d 63, 71 (2d C ir. 2008). B Explaining that it di d not want to go “beyond the [r egulatory] definiti ons,” Trial T r. at 2860, of “occupational di sability,” the district court denied Ruti gli ano’s re quest to tel l the jury that the RRB defined “occupati onal disabil ity” in various ways less oner ous than as se t forth in the governing re gulati on. See 20 C.F.R. §§ 220.10, 220.13; see also TrialTr. at 2959. Ruti gli ano asse rts that the court’s “occupational di sability” charge gave insuffici ent guidance, and improperly all owed the jury to conclude that a retiree h ad to be incapacitated in order to qual ify for bene fits. Rut igl iano’s challenge to this i nstruction is without merit. He cannot demonstrate that his re quested charge “accur ately repre sented the law in every re spect.” Applins, 637 F.3d at 72. And, in any event, the “occupational di sability” instruction gi ven was not er roneous . 29In his closi ng argument, Rutig li ano’s counse l argued that an occupational

disabili ty could m ean as littl e as “[w]e don ’t want you on the train if you are not a hundred p erce nt.” Ruti gli ano App. at 346. The point defens e counse l sought to make through the re quested instruction and his cl osing argument, if true, is that the fraudulent disabili ty pension applicati ons did not actuall y deceive the RRB, or that the RRB was compli ant, or complici t, or tacitl y in on the conspiracy. Fraud at the LIRR was epidemi c; the evidence s howed that a whopping 79 perce nt of LIRR empl oyees r etired on disability; this number contrasts with 21 perce nt for employees of Metr o-North, a commuter railroad comparable to the LIRR except with respect to its retirement plan. Trial Tr. at 1039. I t is therefore remarkable, as the defen dants argued, that these perce ntages raised n o red flags for the member s of the RRB. However, this is no defense to the defendan ts’ fraud. If the RRB members wer e stupefied, then the y were de frauded; if they

were c ompli cit (or coconspirators), that would have bee n a ground for prose cution, not a defense. CONCLUSION For the for egoing reason s, and those s et forth in the summary order , we affirm the judgm ents of conviction.

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