Weingarten v. United States

• Decision Date: 27 July 2017
• Docket Number: Docket No. 15-923,August Term 2016
• Citation: 865 F.3d 48
• Parties: Israel WEINGARTEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

865 F.3d 48

Israel WEINGARTEN, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

Docket No. 15-923

August Term 2016

United States Court of Appeals, Second Circuit.

Argued: May 15, 2017

Decided: July 27, 2017

Todd W. Burns , Burns & Cohan, San Diego, CA (Jodi D. Thorp, Clarke, Johnston, Thorp & Rice, San Diego, CA, on the brief), for petitioner-appellant.

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, for respondent-appellee.

Before: Parker, Wesley, and Droney, Circuit Judges.

Wesley, Circuit Judge:

In 2008, petitioner-appellant Israel Weingarten was indicted on five counts of violating 18 U.S.C. § 2423 for sexually abusing his then-sixteen-year-old daughter on three international trips in 1997. Weingarten was convicted on all counts following a jury trial, and he was sentenced on four of those counts after one was vacated on direct appeal. He now appeals from a March 8, 2016 order of the United States District Court for the Eastern District of New York (Gleeson, J. ) denying relief under 28 U.S.C. § 2255. Weingarten's § 2255 petition argued, inter alia , that his trial counsel failed to provide constitutionally effective assistance when they conceded before trial that the charges were timely under the applicable statute of limitations, 18 U.S.C. § 3283 (2003). Weingarten contends his counsel should have argued that (1) the 2003 version of § 3283 does not apply retroactively to his 1997 offense conduct and, alternatively, (2) under the categorical approach, § 2423 charges are subject to the default five-year federal criminal limitations period, 18 U.S.C. § 3282, rather than the extended limitations period for child sexual abuse offenses, § 3283. Because counsel's decision to forgo these arguments was not objectively unreasonable, we AFFIRM the order of the District Court.¹

I.

The facts and procedural history surrounding Weingarten's case are discussed in detail in our opinions in his direct appeals, United States v. Weingarten ("Weingarten I "), 632 F.3d 60, 62–63 (2d Cir. 2011), and United States v. Weingarten ("Weingarten II "), 713 F.3d 704, 707–08 (2d Cir. 2013). We relate here only the events relevant to the narrow statute of limitations issue before us in this opinion.

A.

Weingarten and his now-ex-wife have eight children. Jane Doe, the victim in this case and their eldest daughter, was born in 1981.

The Weingartens lived in Antwerp, Belgium for much of Doe's early life. When Doe was nine or ten years old, Weingarten began to abuse her sexually. Doe started resisting her father's advances when she was thirteen or fourteen years old and eventually complained to her school principal about the abuse.

In April 1997, Weingarten moved his family to Bet Shemesh, Israel as a result of his daughter's compliant. Weingarten continued to abuse Doe in Israel.

In late July 1997, Weingarten took Doe, who was sixteen at the time, on a trip from their home in Israel to visit his ailing father in Brooklyn, New York. Weingarten and Doe stayed in Brooklyn for roughly one month. Weingarten sexually abused Doe during that time.

In August 1997, Weingarten transported Doe from Brooklyn to the old family home in Antwerp, where they remained for approximately a month. While in Belgium, Weingarten sexually abused Doe "night and day, every day." Weingarten I , 632 F.3d at 63 (quoting Trial Tr. 290:14).

Doe returned to Israel in September of 1997 and told her mother of her father's abuse shortly after returning home. Doe's mother helped Doe move to a boarding school in England for the remainder of her secondary education, but no one reported Weingarten's conduct to relevant law enforcement authorities.

Doe eventually immigrated to the United States. Her entire family, including her father, a United States citizen, followed soon thereafter and settled in New York. Weingarten and his wife divorced three years later. Despite allegations from his wife in post-divorce custody proceedings that he sexually abused Doe, Weingarten was awarded sole custody of his minor children in 2004.

B.

Weingarten's 1997 abuse of Doe eventually came to the attention of federal authorities. On August 18, 2008, a federal grand jury in the Eastern District of New York indicted Weingarten for his 1997 trips with Doe on two counts of transporting a minor in foreign commerce for the purpose of engaging in criminal sexual activity in violation of 18 U.S.C. § 2423(a) and three counts of traveling in foreign commerce for the purpose of engaging in sexual conduct with a minor in violation of 18 U.S.C. § 2423(b).

On November 26, 2008, Weingarten moved to dismiss the indictment on two grounds relevant to this appeal. First, Weingarten argued that Count Three of the indictment, which involved Weingarten's April 1997 trip from Belgium to Israel, should be dismissed because it lacked a territorial nexus with the United States. Second, Weingarten argued the entire indictment should be dismissed because the eleven-year delay between his offense conduct and the indictment violated the Due Process Clause of the Fifth Amendment to the United States Constitution. In arguing pre-indictment delay, Weingarten explicitly conceded that his indictment was timely because it was subject to the 2003 version of 18 U.S.C. § 3283, which permitted the prosecution of "offense[s] involving the sexual ... abuse ... of a child under the age of 18 years ... during the life of the child." PROTECT Act, Pub. L. No. 108–21, § 202, 117 Stat. 650, 660 (2003).² He insisted nevertheless that the indictment was unconstitutional because he was "substantially prejudiced" by the delay. J.A. 763.

The District Court denied Weingarten's motion in early 2009. Weingarten was tried before a jury and convicted on all five counts.

Weingarten appealed his convictions to this Court. Weingarten I , 632 F.3d 60. He argued, inter alia , that the District Court erred in denying his motion to dismiss Count Three for want of a territorial nexus with the United States. See id. at 63. He did not raise a statute of limitations argument. We agreed that § 2423(b) requires a territorial nexus with the United States and that Weingarten's Antwerp-to-Israel trip did not satisfy that requirement. As a result, we vacated Weingarten's conviction on Count Three, affirmed Weingarten's remaining counts of conviction, and remanded for resentencing. See id. at 64–71 ; United States v. Weingarten , 409 Fed.Appx. 433 (2d Cir. 2011).

On remand, the District Court sentenced Weingarten to thirty years' imprisonment, which we affirmed and which he is currently serving. Weingarten II , 713 F.3d at 708–16.

C.

Weingarten timely petitioned the District Court for relief under 28 U.S.C. § 2255, represented for the first time by present counsel. Weingarten argued, inter alia , that he was denied effective assistance of counsel because trial counsel conceded the indictment was timely under 18 U.S.C. § 3283 (2003). The District Court denied Weingarten's petition, stating:

I think the [G]overnment is correct that the proper statute of limitations was [§] 3283. I agree that transporting a minor with the intent to engage in criminal sexual activity involved sexual abuse of a minor. I also agree that the post-2003 version of the statute applies to this case.

Special App. 29. We issued Weingarten a certificate of appealability to contest that decision.

II.

As noted, Weingarten argues he was denied his Sixth Amendment right to counsel because his trial counsel conceded the indictment was timely. He offers two arguments that he believes counsel should have made instead of conceding timeliness. First, Weingarten asserts counsel should have argued the shorter limitations period in the 1994 version of § 3283 applied to his 1997 offense conduct because Congress did not intend the longer period in the 2003 version of § 3283 to apply retroactively. Second, Weingarten asserts counsel should have argued the standard five-year limitations period for federal crimes provided in 18 U.S.C. § 3282 applied to his conduct because, under the categorical approach, § 3283 does not apply to 18 U.S.C. § 2423 offenses. Neither argument warrants relief under § 2255.³

A.

There is "a strong presumption that counsel's conduct fell within the wide range of professional assistance." Lynch v. Dolce , 789 F.3d 303, 311 (2d Cir. 2015) (brackets omitted) (quoting Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To overcome that presumption, a petitioner must establish two elements. First, the petitioner must show that counsel's performance was deficient by demonstrating that the representation "fell below an objective standard of reasonableness." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. Second, the petitioner must show that counsel's deficient representation was prejudicial to the defense by establishing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

B.

Weingarten's trial counsel submitted a sworn affidavit in the § 2255 proceeding in which they justified the decision to forgo a statute of limitations defense as "a technique of writing and of ... strategy." App. 447. Weingarten's counsel considered the statute of limitations defense "tenuous" and believed it would "clutter" the motion to dismiss and distract from the motion's other "strong point[s]." App. 448. That decision was reasonable under the circumstances of this case.

The Supreme Court long ago made clear that the Sixth Amendment does not require counsel to raise every non-frivolous argument a client requests. See Jones v. Barnes , 463 U.S. 745, 753–54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).⁴ It is the very function of an effective legal counselor to select among the available arguments and...