United States v. Kalish
403 F. App'x 541
| 2d Cir. | 2010Background
- Kalish convicted on three-count indictment: conspiracy to commit wire and mail fraud, wire fraud, and mail fraud related to The Funding Solution (TFS).
- TFS allegedly induced hundreds of borrowers to pay refundable advance fees with promises of loan assistance; fees not refunded when loans failed.
- Undercover FBI evidence via the Quick Bites loan scheme supported the fraud counts.
- Indictment broadly described schemes over several years; Kalish challenged it as constructive amendment and duplicity claims.
- TFS tombstones and other trial evidence were admitted; 404(b) evidence from Kalish's FCA involvement admitted with limiting instructions; defense summation interruptions occurred; Kalish challenged sentence as unreasonable.
- Court affirmed district court’s judgment and rejected Kalish’s challenges on indictment, sufficiency of evidence, evidentiary rulings, summation interruptions, and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment constructively amended? | Kalish maintains trial evidence altered essential elements. | Kalish argues overbreadth/duplicitousness. | No constructive amendment; indictment adequate. |
| Sufficiency of the evidence to prove intent to defraud | Evidence shows fraudulent intent through victims’ testimony. | Contractual fee language limits intent. | Sufficient circumstantial evidence supported intent. |
| Admission of tombstones (403 balance) | Tombstones probative of intent; not unfairly prejudicial. | Excessive and prejudicial. | Admissible; probative and not unduly prejudicial. |
| Admission of 404(b) evidence about FCA conduct | Prior conduct shows knowledge and intent to defraud. | Unfair prejudice and improper propensity evidence. | Proper under 404(b); proper purpose and limiting instructions given. |
| Interjections during defense summation | Court interruptions were within bounds. | Interruptions denied fair advocacy. | Interventions within outer constitutional bounds; no reversible error. |
Key Cases Cited
- United States v. Clemente, 22 F.3d 477 (2d Cir. 1994) (constructive amendment standard; indictment must not modify essential elements)
- United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (indictment specificity; track statute language with necessary detail)
- United States v. Carr, 582 F.2d 242 (2d Cir. 1978) (indictment sufficiency; time/place flexibility)
- United States v. Margiotta, 646 F.2d 729 (2d Cir. 1981) (duplicitous indictments; prejudice requirement)