15‐923
Weingarten v. United States
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 27th day of July, two thousand seventeen.
PRESENT: BARRINGTON D. PARKER,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________
ISRAEL WEINGARTEN,
Petitioner‐Appellant,
‐v.‐ 15‐923
UNITED STATES OF AMERICA,
Respondent‐Appellee.
______________________
FOR APPELLANT: TODD W. BURNS, Burns & Cohan, San Diego, CA (Jodi
D. Thorp, Clarke, Johnston, Thorp & Rice, San Diego,
CA, on the brief).
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FOR APPELLEE: JENNIFER M. SASSO, Assistant United States Attorney
(Jo Ann M. Navickas, Assistant United States Attorney,
on the brief), for Bridget M. Rhode, Acting United States
Attorney for the Eastern District of New York,
Brooklyn, NY.
Appeal from the United States District Court for the Eastern District of
New York (Gleeson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order of said District Court be and it
hereby is AFFIRMED.
Petitioner‐Appellant Israel Weingarten, currently serving a thirty‐year
sentence following convictions of two counts of transporting a minor in foreign
commerce for the purpose of engaging in criminal sexual activity and two counts
of travel in foreign commerce for the purpose of engaging in sexual conduct with
a minor in violation of 18 U.S.C. § 2423, appeals the District Court’s denial of his
petition for relief under 28 U.S.C. § 2255. In an opinion also issued today, we
affirm a portion of the District Court’s order pertaining to Weingarten’s statute of
limitations defense. We AFFIRM the remaining issues on appeal1 in this
1 In addition to the statute of limitations issue, this Court granted Weingarten’s motion for a
certificate of appealability to address: (1) whether trial counsel rendered ineffective assistance in
failing to prepare for trial and failing to object to the District Court’s consideration of
Weingarten’s pro se cross‐examination conduct in imposing sentence, and (2) whether alleged
government misconduct deprived Weingarten of a fair trial.
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summary order. We assume the parties’ familiarity with the underlying facts
and the procedural history, which we reference only as necessary to explain our
conclusions.
I. Standard of Review
We review de novo ineffective assistance of counsel claims on an appeal
from a denial of relief under § 2255. Puglisi v. United States, 586 F.3d 209, 215 (2d
Cir. 2009). We also review de novo prosecutorial misconduct claims on an appeal
from a denial of relief under § 2255. See United States v. Cuervelo, 949 F.2d 559,
567 (2d Cir. 1991).
II. Trial Counsel’s Preparation
Weingarten argues he was denied his Sixth Amendment right to counsel
because the District Court forced him to choose between proceeding to trial pro se
or with trial counsel with whom Weingarten could not effectively communicate.
We resolved whether Weingarten was entitled to eve‐of‐trial relief of counsel in
his first direct appeal. We concluded that “the district court conducted a detailed
inquiry into Weingarten’s concerns, and after reviewing his complaints and
hearing from counsel, adequately satisfied itself that there was neither a
complete breakdown of communication nor an irreconcilable conflict.” United
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States v. Weingarten, 409 F. App’x 433, 436 (2d Cir. 2011). We also held that there
was no evidence to suggest the District Court should have granted Weingarten’s
belated request for a continuance or relief from counsel after they had
represented him ably for months. Id. at 435–36. The arguments Weingarten
raises here either were resolved or are implicitly covered by the reasoning of that
prior decision. The “law of the case” doctrine therefore bars us from considering
their merits on collateral attack. See Yick Man Mui v. United States, 614 F.3d 50, 53
(2d Cir. 2010) (noting that, at the appellate level, “the law of the case rule” bars
re‐litigation of issues on collateral attack that were “already decided on direct
appeal”).
Weingarten also argues that trial counsel were constitutionally ineffective
because they did not adequately investigate the facts underlying the allegations
in the indictment and otherwise failed to prepare for trial. As the Supreme Court
has explained, “counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.”
Strickland v. Washington, 466 U.S. 668, 691 (1984). In the context of an
ineffectiveness claim, “a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure
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of deference to counsel’s judgments.” Id. Here, the record does not establish that
counsel’s conduct in preparing for trial was objectively unreasonable. Counsel
litigated Weingarten’s case vigorously ahead of trial, and they made reasonable
efforts to work with Weingarten to rebut the government’s case, especially in
light of the unique difficulties and circumstances of this trial. See Weingarten, 409
F. App’x at 436 (noting that “Weingarten and his supporters—the persons he
referred to throughout trial as ‘his people’—shared much of the blame for any
disharmony between Weingarten and his attorneys”). Contrary to Weingarten’s
arguments on appeal, the duty to investigate does not “compel defense counsel
to investigate comprehensively every lead or possible defense,” nor are counsel
required “to scour the globe on the off‐chance something will turn up.” Greiner
v. Wells, 417 F.3d 305, 321 (2d Cir. 2005).
Finally, the District Court did not err in denying Weingarten’s § 2255
petition without holding an evidentiary hearing. The parties’ extensive written
submissions and supporting materials were sufficient for the District Court to
adjudicate Weingarten’s claims of ineffective assistance. See Puglisi, 586 F.3d at
215.
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III. Counsel’s Failure to Object at Sentencing
Weingarten argues his counsel at sentencing was ineffective because she
failed to object when the District Court, in Weingarten’s view, punished him for
proceeding pro se and for exercising his constitutional right to confront the
witnesses against him. In fact, the District Court did not punish Weingarten for
proceeding pro se or for cross‐examining the Government’s witnesses in
fashioning its sentence. Rather, the court cited the abusive manner in which
Weingarten exercised his right of self‐representation as context for its sentencing
decision. It was reasonable for Weingarten’s counsel to believe that it was
proper for the District Court to consider that information. See Strickland, 466 U.S.
at 687–88.
IV. Government Misconduct
Finally, Weingarten argues the Government violated Brady v. Maryland,
373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), by admitting into
evidence a handwritten repentance letter found in Weingarten’s pocket, by
suggesting to the jury that two members of Weingarten’s religious community,
Principal Stauber and Rabbi Weis, corroborated the claims of sexual abuse, and
by failing to disclose information about this evidence to the defense.
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For Weingarten to prevail on his Brady claim, he must show that (1) the
Government suppressed (2) evidence in its possession favorable to the defense
(3) resulting in prejudice to his defense. See Banks v. Dretke, 540 U.S. 668, 691
(2004).
Weingarten argues the Government did not comply with its Brady
obligations with respect to the handwritten letter because (a) he told the
Government and the Court that he did not write the letter and (b) because the
Government did not disclose to Weingarten a second page of the letter.
Weingarten cannot make out a Brady claim on a theory that the Government
suppressed statements Weingarten himself made. See DiSimone v. Phillips, 461
F.3d 181, 197 (2d Cir. 2006) (“Evidence is not ‘suppressed’ if the defendant either
knew, or should have known, of the essential facts permitting him to take
advantage of any exculpatory evidence.”). Weingarten’s contention that the
Government failed to disclose a supposedly exculpatory second page of the letter
is speculative and lacks evidentiary support. He merely states that, because the
Government has an affirmative duty to investigate fully each prosecution, “[i]t
seems likely the [G]overnment . . . learned that Weingarten did not write the
letter.” Appellant’s Br. 70. That cannot support a Brady claim. See United States
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v. Graham, 484 F.3d 413, 417 (6th Cir. 2007) (“Brady clearly does not impose an
affirmative duty upon the [G]overnment to take action to discover information
which it does not possess.” (quoting United States v. Beaver, 524 F.2d 963, 966 (5th
Cir. 1975)); see also Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (“[T]he
[G]overnment has the obligation to turn over evidence in its possession that is
both favorable to the accused and material to guilt or punishment.” (emphasis
added)).
Weingarten also contends the Government violated Brady by failing to
disclose that Principal Stauber and Rabbi Weiss told FBI agents they doubted
Weingarten’s daughter’s allegations. “Suppressed impeachment evidence is
material if the witness whose testimony is attacked supplied the only evidence
linking the defendant(s) to the crime, or where the likely impact on the witness’s
credibility would have undermined a critical element of the prosecution’s case.”
United States v. Diaz, 176 F.3d 52, 108 (2d Cir. 1999) (internal quotation marks
omitted). Importantly, neither Principal Stauber nor Rabbi Weiss testified at
trial, and any suggestion by the Government that these individuals had
corroborated the claims of sexual abuse was not the sole evidence linking
Weingarten to the abuse. Nor are we persuaded that these two uncorroborated
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statements would have sufficiently undermined Weingarten’s daughter’s
testimony regarding his sexual abuse.
To prevail on his Napue claim, Weingarten must prove, inter alia, the
Government knowingly allowed false evidence to be admitted. See United States
v. Vozzella, 124 F.3d 389, 393 (2d Cir. 1997). As noted above, Weingarten provides
only speculation—not proof—that the Government knew he did not write the
handwritten repentance letter. And Weingarten fails to show the record
evidence pertaining to Principal Stauber and Rabbi Weiss was false.
V. Conclusion
We have considered Weingarten’s remaining arguments and identify no
basis for reversal. The order of the District Court is therefore AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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