United States v. Kirik

25-796-cr United States v. Kirik 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 9th day of November, two thousand twenty-six. Present: EUNICE C. LEE, ALISON J. NATHAN, Circuit Judges, MARY KAY VYSKOCIL, District Judge. * _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 25-796-cr TONY KIRIK, A/K/A ANATOLIY KIRIK, Defendant-Appellant. _____________________________________ For Appellee: SEAN C. ELDRIDGE, Assistant United States Attorney (Monica J. Richards, * Judge Mary Kay Vyskocil, of the United States District Court for the Southern District of New York, sitting by designation.  Assistant United States Attorney, on the brief), for Michael DiGiacomo, United States Attorney for the Western District of New York, Buffalo, NY. For Defendant-Appellant: JOEL M. COHEN, White & Case LLP, New York, NY. Appeal from a March 26, 2025 judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant-Appellant Tony Kirik appeals from a judgment convicting him of seven counts: conspiracy to defraud the United States and the Federal Motor Carrier Safety Administration (“FMCSA”), in violation of 18 U.S.C. §§ 371, 1001(a), and 1519 (Count 1); knowingly making and using materially false and fraudulent documents, in violation of 18 U.S.C. § 1001(a)(3) and 18 U.S.C. § 2 (Counts 2 and 4); falsifying records with the intent to impede, obstruct, or influence a federal investigation, in violation of 18 U.S.C. § 1519 and 18 U.S.C. § 2 (Counts 3 and 5); and making false statements to and concealing a material fact from the FMCSA in violation of 18 U.S.C. §§ 1001(a)(1), (2) and 18 U.S.C. § 2 (Counts 6 and 7). Following a jury trial, the district court sentenced Kirik to concurrent terms of 45 months on each of the seven counts, to be followed by an aggregate two-year term of supervised release. Kirik’s criminal charges arose out of his attempt to defraud the FMCSA, an agency within the Department of Transportation. Kirik was accused of creating a “chameleon” company, Dallas Logistics, to avoid the adverse financial consequences that came with the poor safety ratings his other trucking companies had received. Gov. App’x 650. The government alleged that, after the 2 FMCSA opened an investigation into Dallas Logistics, Kirik submitted or caused to be submitted a fraudulent MCS-150 form and letter and also caused his employee to make false statements during an FMCSA audit. On appeal, Kirik argues that there was insufficient evidence for the jury to convict him on each count and that his trial attorney was constitutionally ineffective for a multitude of alleged failures. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. * * * I. Sufficiency of the Evidence “We review sufficiency of evidence challenges de novo, but defendants face a heavy burden, because our framework for evaluating such challenges is exceedingly deferential.” United States v. Ho, 984 F.3d 191, 199 (2d Cir. 2020) (citation modified). This standard requires us to “sustain the jury’s guilty verdict if viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” and “we must credit every inference that could have been drawn in the government’s favor, because the task of choosing among competing, permissible inferences is for the jury, not for the reviewing court.” Id. (citation modified). Kirik argues that the government’s evidence was insufficient as to each count of conviction. His arguments largely rest on his position that the testimonies of Amanda Burgess and James Zambito—Kirik’s employees and co-conspirators—were incredible as a matter of law. Kirik argues that both witnesses had an interest in testifying to avoid their own criminal liability, made certain prior inconsistent statements, and gave testimony that conflicted with that of other witnesses or with exhibits. Although this was certainly “relevant to the weight the jury should 3 accord to the evidence,” United States v. Truman, 688 F.3d 129, 140 (2d Cir. 2012) (quoting United States v. Coté, 544 F.3d 88, 100 (2d Cir. 2008)), it is not grounds for dismissal on appeal, given the high bar for this Court to override a jury’s credibility determination on sufficiency review. See id. at 139 (“[T]he testimony of a single accomplice witness is sufficient to sustain a conviction, provided it is not incredible on its face, or does not defy physical realities.”) (citation modified). Moreover, Kirik largely ignores overwhelming corroborating evidence that showed he was behind the scheme to form Dallas Logistics as a way to avoid the negative consequences of the “Conditional” safety rating given to his other trucking companies. Kirik does not contest that he had complete and sole financial control over Dallas Logistics’s bank accounts—which he used to direct over $2.8 million in checks to his family members’ companies in 2015 and for personal expenses—nor that, upon firing Zambito, Kirik received all of Zambito’s Dallas Logistics shares in exchange for no payment whatsoever. Nor does Kirik rebut the evidence that showed Dallas Logistics was being run out of Kirik’s business address and shared finances, drivers, office staff, and trucks, with Kirik’s other companies. Viewing the evidence in the light most favorable to the government, the conclusion that Dallas Logistics was fraudulently formed and that Kirik was running it was inescapable. Thus, as to the conspiracy charge (Count 1), the charges arising out of the fraudulent letter submitted to the FMCSA on April 26 (the “April 26 Letter”) (Counts 4 and 5), and the charges arising out of the false statements given during the FMCSA audit (Counts 6 and 7), Burgess’s and Zambito’s well-corroborated testimonies directly implicating Kirik in those crimes were more than sufficient to sustain those convictions. 4  As to the charges arising out of the filing of the fraudulent MCS-150 form with the FMCSA on April 25 (Counts 2 and 3), Kirik claims that the evidence was insufficient because no one testified that he directly created or filed it. However, Kirik was charged under 18 U.S.C. § 2, which makes punishable as a principal anyone who “aids, abets, counsels, commands, induces or procures,” the commission of a federal offense. Here, where Kirik’s personal information was used to file a fraudulent MCS-150 form, there was sufficient evidence that Kirik at least commanded, induced, or procured its filing, even if he did not file it himself. Accordingly, the evidence was sufficient as to all counts. II. Ineffective Assistance of Counsel Kirik contends that his trial counsel made numerous errors that, collectively, rendered his performance ineffective under Strickland v. Washington, 466 U.S. 668 (1984). “When faced with a claim for ineffective assistance of counsel on direct appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us.” United States v. DeLaura, 858 F.3d 738, 743 (2d Cir. 2017) (quoting United States v. Adams, 768 F.3d 219, 226 (2d Cir. 2014) (per curiam)). “Though it is not a rigid rule, this circuit has a baseline aversion to resolving ineffectiveness claims on direct appeal.” United States v. Willis, 14 F.4th 170, 187 n.6 (2d Cir. 2021) (citation modified); see also Massaro v. United States, 538 U.S. 500, 504 (2003). However, we will resolve the claim on direct appeal if its “resolution is beyond any doubt or to do so would be in the interest of justice” United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (citation modified). 5  As the record is not sufficiently developed to rule on Kirik’s ineffective assistance claim, we decline to address it. Instead, Kirik may raise this claim in a motion under 28 U.S.C. § 2255. We have considered Kirik’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 6