Argued: May 15, 2017
from a March 8, 2016 order of the United States District
Court for the Eastern District of New York (Gleeson,
J.) denying the 28 U.S.C. § 2255 petition of
appellant Israel Weingarten, who is currently serving a
thirty-year term of imprisonment 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 traveling in foreign commerce for the purpose of
engaging in sexual conduct with a minor in violation of 18
U.S.C. § 2423. On appeal, Weingarten argues principally
that his trial counsel was constitutionally ineffective for
conceding a statute of limitations defense. In this opinion,
we AFFIRM the portion of the District Court's order
pertaining to that argument; in a summary order filed
contemporaneously, we AFFIRM the balance of the order.
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
Before: Parker, Wesley, and Droney, Circuit Judges.
Wesley, Circuit Judge
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
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
and his now-ex-wife have eight children. Jane Doe, the victim
in this case and their eldest daughter, was born in 1981.
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
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.
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.
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.
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
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.
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).
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). He insisted nevertheless that the
indictment was unconstitutional because he was
"substantially prejudiced" by the delay. J.A. 763.
District Court denied Weingarten's motion in early 2009.
Weingarten was tried before a jury and convicted on all five
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 F.App'x 433 (2d Cir. 2011).
remand, the District Court sentenced Weingarten to thirty
years' imprisonment, which we affirmed and which he is