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To Be Argued By: DAVID B. MASSEY
United States Court of Appeals
FOR THE SECOND CIRCUIT Docket Nos. 08-4211-cr(L), 09-0074-cr(con), 09-0610-cr(con), 09-1493-cr(con), 09-3266-cr(con), 09-3801-cr(con)
UNITED STATES OF AMERICA, Appellee, (caption continued on inside cover) ON APPEAL
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR THE UNITED STATES OF AMERICA
PREET BHARARA, United States Attorney for the Southern District of New York, Attorney for the United States of America. DAVID B. MASSEY, MATTHEW L. SCHWARTZ, ANDREW L. FISH, Assistant United States Attorneys, Of Counsel.
—v.— NIKOLAI NADIRASHVILI, also known as Nikoloz Nadirashvili, also known as Nikush, LEVAN CHVELIDZE, DIMITRIY VOROBEYCHIK, IOSEB KHARABADZE, also known as Soso and CHRISTIAAN DEWET SPIES, also known as David, ARTUR SOLOMONYAN, also known as Alex, Defendants-Appellants, JOSEPH COLPANI, also known as Joe, MICHAEL GUY DEMARE, also known as Michel, ARMEN RAZMIK BARSEGHYAN, SPARTAK VAHAGN YERIBEKYAN, LEVON SOLOMONYAN, ALLAH MCQUEEN, RAJAB CHAVIS, also known as Jabs, also known as Keith Chavis, GAREGIN GASPARYAN, also known as Garik, MICHAEL JIMENEZ, also known as Mike, NIEMAN MYLES, also known as Luis, WILLIAM JESUS THOMAS, VAKHTANG MACHITIDZE, TIGRAN GEVORGYAN, also known Tiko, ARMAND ABRAMIAN, also known as Armo, Defendants.
TABLE OF CONTENTS
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The Government’s Case. . . . . . . . . . . . . . . . . . . . 5 1. Overview of the Two Weapons Trafficking Schemes. . . . . . . . . . . . . . . . . . . . 5 2. The Overseas Weapons Trafficking Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 a. Spies and Solomonyan Offer To Sell Weapons to Davis. . . . . . . . . . . . . . . . . . . 8 b. Kharabadze’s Efforts To Obtain Arms Overseas . . . . . . . . . . . . . . . . . . . . . 9 c. Kharabadze’s Overseas Arms Price List.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 d. The June 2004 Meetings. . . . . . . . . . . . . 11 e. Surplus Weapons in Armenia. . . . . . . . . 13 f. The January 2005 Meeting . . . . . . . . . . . 13 g. Photographs of the Overseas Weapons. . . . . . . . . . . . . . . . . . . . . . . . . 14 h. The March 2005 Meeting. . . . . . . . . . . . 16 3. The Domestic Gun Trafficking Offenses. . . 17 a. Nadirashvili and Chvelidze Agree To Help Solomonyan Obtain Machineguns. . . . . . . . . . . . . . . . . . . . . . 18
. . . . . . . . . . . . . . . . . . . Additional Firearms. . . . . . . . . . . . . . . . . . Pinkerton Liability. . .ii PAGE b. . . . 26 2. . . . . . . Brokering Activities. . . . . . . . . . . . . . . . 23 A RGUMENT: POINT I — The Evidence Was Sufficient to Support the Jury’s Verdicts on the Overseas Arms Trafficking Offenses. . Solomonyan’s Post-Arrest Statement . . . . . . . . . Sufficiency of the Evidence. . . . . . . . . . . Engaging in the Business of Brokering Activities . . . . 35 4. . . . .. . . . . . 23 B. . 22 4. . . . Transportation of a Machinegun or Destructive Device. . . . 20 c. Registration and Licensing Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1. . Vorobeychik Introduces Solomonyan to a Dealer To Obtain Guns. The Defense Case. . . . . . . . 31 d. . . . . . . . . . . . . . . . The Statute and Regulations. . . . . . . . . . . . . 25 A. .. . . . . . . . . 38 . . 33 3. . .. . . . . . . . . . . . . 29 a. . . . . 31 c. . . . . . . . . . . . . Applicable Law. . . . . . . . . . . . 36 5. . . . 29 b. . .. . . . . . . . . . . . . . Foreign Defense Articles: The United States Munitions List. . . . . . . . Aiding and Abetting Liability. . . . .
. 45 4. . . . . . . . . . . . . . Count Two: Aiding and Abetting and Pinkerton Liability. . . . The Duration of Kharabadze’s Participation in the Scheme. . . . . . . . . . . . 51 b. 51 a. . . . Discussion. . . . . . . . . 50 6. . . . 47 5. . . . . . . . . The Government Was Not Required to Prove that Kharabadze Personally Negotiated the Prices of an Arms Deal or that He Had a Financial Stake in the Deal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 . . . . . . . . . . . 55 1. . . 39 1. . . . 54 A. . The Government Was Not Required to Prove that Kharabadze Had Direct Contact with Any Weapons Suppliers in Eastern Europe or Elsewhere. .. . . . . . . . . . . . There Was Sufficient Evidence that the Price List Included Munitions List Items and a Machinegun or Destructive Device. . . . . . . . . .iii PAGE B. . . . . Aiding and Abetting . . . . . . . . . . . . . . . . . . . . Pinkerton. . . . . . . . . . . 53 POINT II — The Evidence Was Sufficient to Support the Jury’s Verdicts on the Domestic Gun Trafficking Offenses . . . Unlicensed Firearms Dealing. . Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 43 3. 40 2. . . . . . . . . . . There Was Sufficient Evidence of Kharabadze’s Intent. .
. 56 B. . . . . . . . The District Court’s Denial of a Severance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nadirashvili and Chvelidze. . . . . . . . . . . . . . . . 58 3. . . . . . . . . Solomonyan and Spies. . . . . . .. . . . . . . . . . . . 76 B. . . . . . . . . . . . . . . 64 1. . 82 . . . . . . . . . . . . . . . . . . . . . . . . . . 56 2. . . . . . . . 74 A. . . Applicable Law. . . . . 64 A. . . . . . . . . . . . . . . . . . . . . . Relevant Facts . . . . . . . . . . . . 64 2. . . . . . . . . . . . . . . . . Discussion. Vorobeychik.. . . . . . . . . . .iv PAGE 2. . . . . . . . . . . Vagueness Challenges. . . . . . . . . . . . . . . . . . .. . . . . . . . 75 1.. Jury Instructions. . . . . . . . . . . . . . The Arms Export Control Act. . . 77 C. Transfer or Possession of a Machinegun. . . Applicable Law. . . . . . . . . . . . . . . . . Discussion. . . . . . 56 1. . . . . . . . 67 B. . . . . . .. . . Discussion. . . . 68 POINT IV — The District Court Acted Within Its Discretion in Denying Nadirashvili’s Severance Motion . . . . . . . . . . . . 63 POINT III — The Arms Export Control Act Is Not Unconstitutionally Vague. . .. . . . . . . . . . . . . . . . . . . . . . 75 2. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Davis’s Availability To Testify at Trial. 99 C. . . Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discussion. . . . . . . . . . . . . . . . . . . . . 84 2. Testimony Concerning Renumeration and Reward. . . . 94 A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Testimony. . . .. Testimony Concerning the Destroyed Recordings. . . . .. . . . . Discussion. . . . . . 89 B. . .. . . . . . . . . . . . The Reconstruction Hearing. . . . . . . . . 100 POINT VII — The District Court Acted Within Its Discretion in Declining To Allow Foreign Language Recordings To Be Played During Trial. . 91 POINT VI — The District Court Properly Denied Kharabadze’s Motion for a Mistrial Based on the Production of Telephone Records. . . . . . . . . . . . . . . . . . .. Relevant Facts. . . . . . . . Relevant Facts. . . . . 87 b. . . . Applicable Law. . . . . . . . . . . . . . . . 89 C. . . . . . 87 3. . . . . . . . . . . . . . . 102 . . . 94 B. . . . . 83 A. . . . . . . . . . . .v PAGE POINT V — The District Court Properly Found that No Due Process Violation Occurred As a Result of Davis’s Destruction of a Small Number of Recordings of His Conversations with an FBI Agent. . 87 a. . 84 1. . . . . . . .
. . . . . . . . . . . . . . 120 C. . . . 103 2. Discussion. Translations Offered at Trial. . . . . . . . . . . . . . . . Discussion. . . . . . . 128 1. . . . . . . . . . . . . . . . . . . . . . . . 128 2. . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 POINT IX — The Jury Instructions Were Proper. . . . . . . . . . . . . . . . Relevant Facts. 123 A. . . . . . . . . . . . . . . Chvelidze’s Expert Witness . . . . . . . . . . . . . . . Kharabadze’s Challenge to the Brokering Instruction. . . . . . . . . . . . . . . . . . . Relevant Facts. . 132 A. . . . . 124 B.vi PAGE A. 113 A. . . . . . . . . . . . . . . 127 C. . . . . . . . . . . . . 103 1. . 133 B.. . . Relevant Facts. . . . . . . . . . . . . . . . . . . . . . 111 POINT VIII — The Government’s Jury Addresses Did Not Deprive the Defendants of a Fair Trial . . . . . Spies’s Challenges. . . . . . . . . . . . .. . . 131 POINT X — The Challenges to the District Court’s Guidelines Calculations Should Be Rejected. . . . . . . . . . Discussion. Applicable Law. . . . . Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 3. . . . . . . . . . . . . . Applicable Law. . 137 . . . .. . . . . . . . 108 C. . 107 B. . Applicable Law. . . . . . . . . . . . . . . 113 B. . . . . . . . . . . . Applicable Law. . . . . . . . . . . Relevant Facts. . . .
The District Court Properly Applied a Leadership Role Enhancement. 140 1. . . . . . . . The District Court Properly Applied an Enhancement Based on the Number of Firearms. Discussion. . . The District Court Properly Applied U. . . . . 153 7. .S. . . § 2X1. . . . . . . . . . . § 2K2. . . . . . . . . . . . . . . . . . .S. 154 . . The District Court Properly Applied Enhancements for Obstruction of Justice. . .1. . . . . . . . 152 c. . . . . . . . .1 To Determine the Base Offense Level for Count One. . . . . Nadirashvili’s Obstruction.S.. Solomonyan’s Obstruction. . . . 144 4. . . . . . . . . . . . . .G. . Sentencing Review Generally. . . . . . . . 150 b. . . . . . The Obstruction of Justice Enhancement. .vii PAGE 1. . .G. . . . Harmless Error. . . . . 137 2. . . .S. . . . . . . . . . 146 5. . . .. . . . . . . . . . 142 3. . The District Court Properly Applied U. . . . . . . . . . . . . . . . . . . . . . . 147 6. . . . . . The District Court Properly Applied a 15-Level Enhancement for Portable Rocket or Missile. . . 139 B. . . . . . . . . . . . . . . . . . . . . . 150 a. . . . . . Review of Guidelines Calculations. 140 2.
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153.3d 65 (2d Cir. . . .3d 334 (2d Cir.. 140 United States v. .. . . . . 357 F. . . . . 111 United States v.2d 1324 (2d Cir. . . . 859 F. . . Vasquez. . Valenzuela-Bernal. . . . . 1997). . 361 F.2d 1037 (2d Cir. . . 858 (1982). ... . . . . . 109. 2004). . . . . . 1988). . . . 153 . . . . . . . 2001). . . . . . . Wilkerson. .. . . . .S. . . 252 F. 83 United States v. 78 United States v.3d 653 (2d Cir. . 458 U. . . . . . . . . 119 F. . . . . . . 2004). 154 United States v. Walsh. . .3d 239 (2d Cir. . 128 United States v.. . . . Turoff. 149. . . 2009). 110. . . .3d 240 (2d Cir. . . 2001). . . Williams. . 1988). . . . White. . . . . Ulerio. . . 141. . . . . 2004). . . 1996). . . 899 F. . . . . Velez.2d 1144 (2d Cir. .3d 127 (2d Cir. . . . . . . 129 United States v. . . . 128 United States v.3d 115 (2d Cir. . 1990). ... . 152. Tropeano. . . . . . . 79 F. 142 United States v. . . . . . White. . . .xxii PAGE United States v. . . . . 389 F. . . .. .. . . . 853 F. . Villegas. . . . 156 United States v. . . . .. . . . . 90 United States v. .3d 717 (2d Cir.. . 240 F. 552 F. . .
.S. . . . . . 1 (1985). . 80. . .. . . . .3d 112 (2d Cir. . . . 500 U. . . 78. . . . . . . .. . Flipside. . . .. . . . . . . 506 U. . . . . . . . . . . . . 84 United States v. . 428 F. . . . . 541 F. 776 F. . . . . 945 F. 121 United States v. . 1991). § 2(a). . . . . . . . Rules & Other Authorities 18 U.xxiii PAGE United States v. Zafiro. . . Inc. Hoffman Estates.3d 56 (2d Cir. .. 49 United States v. . . .S. . . . . . . . .S. 80 Statutes. . . . 470 U. .. . 327 F. . . 2003). . 534 (1993). . Yakou. . . . . . . . . . . . . . . 55 . . . Yannotti. . . 489 (1982). . . . 1997). . § 921. . . . . . .. . . . aff'd. . . . . . . . . Young. . . . . . . . . . 71 United States v. . . 79. . . . . . Zambrano. . . . . . . . . 36 18 U. . . .3d 241 (D. . 65 Yates v. . . 391 (1991). 2008). . . . . . . . . .S. . .2d 881 (7th Cir. . . . . . United States. . . Zagari. 111 F. . . . Cir. . . 506 U. .S. . .. . . . . . . . .S. . . . . . . . . Yousef. . Evatt. 534 (1993). . . . 455 U. . . .C.S. . .2d 1091 (2d Cir. . . . . . . . . . . . . 37 Village of Hoffman Estates v.. . . . . . . . . . 1985). . 151 United States v. .3d 307 (2d Cir. . . . . . . 79 United States v. . . . 111 Zafiro v. .C. . . . .. 2005).C. .
. § 129. .S. . . . § 2778. .F. . 143 22 C. . . . . . . . . 36. . .1. . . .1. .xxiv PAGE 18 U. . . . . . .R. . . . . . . . . . . . . . . 134 U. . . . . . . . . . . .R. . . § 120. . . . . . . . § 120.6. Crim. . . . . . . . . . .R. . . . . . . § 3C1. Crim. . . . . . . . . . . R. . . . . . 16. . . . . . .F. . . 33. 100 Fed. § 129. .2. . . . 71 18 U. . . .R. 140. . . . . . . . . . . . . . § 922(o). . . 47. . 69. . . . .1. . . .S. 132 22 C. 32 22 C. . . . . . .1. 33 22 C.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35. . . . . . . . . . . . . . . . . . . . . . . . .F. . . . . . . 36. . . .7. . . . . 54. . . . P. . . . . .G. . . . . . . . . . . .G. . . . . . . . . . .6. . . . . . . . . . . . . . . . . . . . 110 U. . .1. . . . § 922(a). . . . .F. . . . . . . 31. . 54. . . . . . . . . . . . . . . . § 5845(f). . . . . . . . . . .R. . 150. . R. . . . . . 56 22 U. .F. . . . . . .F. . .C. . . § 127.C. . . .S. . .G.S. . .S. . . . . . . . . § 120. . . . .S. § 121. . . . 133. . . . 52(a). . . . . . . . . . 35 Fed. . . . . . § 2X1. . . § 3B1. . . . .3. 78 Fed. . R. .C. . . . . . .S. P. . 32 22 C. 147 U. . .R. . . . . . .S. . . . . . . . . . . . . . . . . . . . . . . . . . . § 129. . . . . . 151 . 33 22 C. . . . . 14. . .S. . . . .F. . . . . . . . . . .R. . . . § 5845(b). . . . . . . . .20. . . .G. . . . . 33. . . 34 22 C. . . . P. . . . passim 26 U. . .R. . 31 22 C. . . . . . . . . . . . . . . . . . .S.S. .S. . 141 U. . . . . . . . . . .F. . . . . . . . . . . . . . .R. . . . . . 56 26 U. . . . . . . . .C.S. § 1B1. 34 22 C. . . . .F. . . . . . . . .1. . .C. . . Crim. . . . . § 129. . .
. . . . . . . . .G. . .2.xxv PAGE U. . . 156 . § 5G1. . . . . . . . .S. . . . . . .S. . . .
Appellee. also known Tiko. L EVON S OLOMONYAN. also known as Nikush. W ILLIAM J ESUS T HOMAS. G AREGIN G ASPARYAN.N IKOLAI N ADIRASHVILI. 09-3801-cr(con) U NITED S TATES OF A MERICA. 09-0074cr(con). J OSEPH C OLPANI. also known as Nikoloz Nadirashvili. -v. A RTUR S OLOMONYAN. also known as David. also known as Mike. also known as Michel. 09-0610-cr(con). T IGRAN G EVORGYAN. also known as Alex. V AKHT ANG M ACHITIDZE. L EVAN C HVELIDZE. also known as Soso and C HRISTIAAN D EWET S PIES. 09-1493-cr(con).S PARTAK V AHAGN Y ERIBEKYAN. IOSEB K HARABADZE. R AJAB C HAVIS. also known as Jabs. also known as Joe. also known as Luis. also known as Garik. A LLAH M CQ UEEN. N IEMAN M YLES. Defendants-Appellants. 09-3266-cr(con). also known as Keith Chavis. . M ICHAEL J IMENEZ. A RMEN R AZMIK B ARSEGHYAN.FOR THE SECOND CIRCUIT Docket Nos. M ICHAEL G UY D EMARE. D IMITRIY V OROBEYCHIK. 08-4211-cr(L).
The Indictment charged the Appellants and others with various weapons trafficking offenses that may be divided into two categories. and other military arms from Eastern . 2009 (Vorobeychik). BRIEF FOR THE UNITED STATES OF AMERICA Preliminary Statement Artur Solomonyan. 327 (RJH) (the “Indictment”) was filed on January 29. Solomonyan. Defendants. and Kharabadze were charged in Counts One and Two with military arms trafficking offenses involving a plot to import rocket-propelled grenades. April 8. Holwell. 2008 (Chvelidze). United States District Judge. 2008 (Nadirashvili). 2009 (Kharabadze and Solomonyan). February 13. 2009 (Spies). Nikolai Nadirashvili. surface-to-air missiles. also known as Armo. December 29. Ioseb Kharabadze. Christiaan Spies. and July 28. Spies. in seven counts. machine guns. Indictment S1 05 Cr. the “Appellants”) appeal from judgments of conviction entered on August 20. following a five-week trial before the Honorable Richard J. and a jury. Dimitry Vorobeychik. and Levan Chvelidze (collectively. 2007. in the United States District Court for the Southern District of New York. In the first category.2 A RMAND A BRAMIAN.
Vorobeychik. Count Four charged Solomonyan. Nadirashvili. Spies.S. § 922(a)(4).3 Europe to the United States (hereinafter. and Chvelidze were charged in Counts Three through Seven with firearms trafficking offenses involving the acquisition of firearms. Vorobeychik.C.S.S. and (b) to transfer and possess a machinegun in violation of 18 U. and Chvelidze with interstate travel to engage in firearms dealing in violation of 18 . § 2778 and (b) to transport in interstate and foreign commerce a destructive device and a machine gun. Spies.S. § 371 by conspiring (a) to engage in the business of brokering activities with respect to the import and transfer of foreign defense articles that are on the United States Munitions List. and Kharabadze with violating 18 U. in violation of 22 U.C.C. in violation of 18 U.C. Count One charged Solomonyan. Nadirashvili.S. § 371 by conspiring (a) to engage in the business of dealing in firearms without a license in violation of 18 U. Vorobeychik. § 2. Spies. Nadirashvili. such as machine guns and semi-automatic assault rifles. Count Two charged Solomonyan. Solomonyan. § 2778 and 18 U.C. and Chvelidze with unlicensed firearms dealing in violation of 18 U.C. and Chvelidze with violating 18 U. the “Overseas Arms Trafficking Offenses”).S.S. in violation of 22 U. and Kharabadze with engaging in the business of brokering activities with respect to the import and transfer of foreign defense articles that are on the United States Munitions List. In the second category of offenses. § 922(o).S. the “Domestic Gun Trafficking Offenses”). Count Five charged Solomonyan. that were already in the United States (hereinafter.C.S. Nadirashvili. Spies. Spies. § 922(a)(1)(A).C. Count Three charged Solomonyan. Spies. §§ 922(a)(1)(A) and 2.C. Vorobeychik.
to be followed by three years’ supervised release. Count Six charged Solomonyan and Spies with the illegal transfer or possession of a machinegun in violation of 18 U. Judge Holwell sentenced Solomonyan to a term of 264 months’ incarceration. in violation of 18 U. and ended on July 24. On July 17. 2007. 2009. Spies was convicted on Counts One through Seven.000 fine. 2007.C. 2009. Prior to submitting the case to the jury. Nadirashvili. §§ 922(o) and 2. to be followed by two years’ supervised release. to be followed by three years’ supervised release. a $5. and a $200 special assessment. §§ 924(n) and 2. On January 30.C. when Solomonyan was convicted on Counts One through Seven. 2008. and Chvelidze were convicted on Counts Three and Four. and Vorobeychik.S. 2008. Trial commenced on June 20. the Government elected not to proceed against defendants Vorobeychik and Chvelidze on Count Five. to be followed by three years’ supervised release. §§ 922(g)(5) and 2. and a $200 special assessment.S. On October 31.S. Kharabadze was convicted on Counts One and Two. Judge Holwell sentenced Chvelidze to a term of 34 months’ incarceration. Count Seven charged Solomonyan and Spies with being illegal aliens in possession of a firearm. Judge Holwell sentenced Nadirashvili to a term of 41 months’ incarceration. and a $700 . Judge Holwell sentenced Vorobeychik to a term of 33 months’ incarceration. Nadirashvili was acquitted on Count Five. and a $200 special assessment.C. On March 6.4 U.
Vorobeychik. The first of these schemes — the Overseas Arms Trafficking Offenses — occurred as follows: From February 2004 to March 2005. to be followed by 3 years’ supervised release. machine guns. Spies and Kharabadze are currently serving their sentences. and imposed a $200 mandatory special assessment. and imposed a $700 mandatory special assessment. Statement of Facts A. 2009. Nadirashvili and Chvelidze have completed their terms of imprisonment and are currently on supervised release.5 special assessment. The Government’s Case 1. 2009. Overview of the Two Weapons Trafficking Schemes The evidence established that Solomonyan and Spies — illegal aliens from Armenia and South Africa — and certain co-conspirators participated in two overlapping weapons trafficking schemes. Solomonyan. surface-to-air missiles (“SAMs”). On March 11. Solomonyan and Spies believed that a man named Kelly Davis was an illegal arms trafficker who wanted to buy surplus rocketpropelled grenades (“RPGs”). On April 16. and other weapons from Eastern . Judge Holwell sentenced Kharabadze to a term of 108 months’(nine years’) incarceration. to be followed by 3 years’ supervised release. Judge Holwell sentenced Spies to a term of 240 months’ (20 years’) incarceration.
a Georgian national who lived in Manhattan. Kharabadze agreed to help Solomonyan obtain RPGs.6 Europe. the Government also intercepted telephone conversations between Solomonyan and several individuals whom he contacted for the purpose of obtaining these weapons. The vast majority of these conversations were recorded either by the Federal Bureau of Investigation (the “FBI”) pursuant to court-ordered wiretaps. in June 2004. Davis was a confidential source working for Government. Solomonyan’s conversations focused on surplus weapons in Leninakan. and other weapons. Kharabadze provided Solomonyan with a price list of RPGs. SAMs. and other weapons for Davis. discussed this list at length over a two-day period in June 2004. SAMs. or by Davis at the direction of the FBI. In fact. Two months later. In April 2004. Spartak . and other weapons from Eastern Europe. Solomonyan and Davis. Through its wiretap investigation. one of Solomonyan’s overseas weapons contacts. Solomonyan and Spies engaged in a lengthy series of discussions and negotiations with Davis concerning a proposed deal in which they would obtain these weapons from overseas and sell them to Davis. in the presence of Spies. One of these individuals was Kharabadze. In February 2005. Solomonyan also asked several other individuals to help him obtain RPGs. Kharabadze told Solomonyan by telephone that their efforts to obtain such weapons were being delayed by Russian military exercises occurring in the area where the weapons were stored. so that Solomonyan and Spies could provide prices to Davis. a city in Armenia with an active Russian military base. SAMs.
In total. Solomonyan and Spies then enlisted the help of several individuals.7 Yeribekyan. Chvelidze. Davis. Solomonyan. In the course of Davis’s negotiations with Solomonyan and Spies concerning the RPGs and SAMs. Nadirashvili. . including Nadirashvili. Thereafter. Chvelidze. although they did not obtain any in the end. and other high-powered military weapons that were for sale. The second scheme — the Domestic Gun Trafficking Offenses — arose from and overlapped with the Overseas Trafficking Offenses. offered to buy from Solomonyan and Spies machineguns and semiautomatic rifles that were already located in the United States. anti-tank missile systems. After this meeting. to help them obtain illegal guns for Davis. Solomonyan asked Nadirashvili and Chvelidze to help him obtain machineguns in September 2004. Solomonyan and Spies showed the photographs to Davis at a meeting in New York in March 2005. at the direction of the FBI. Nadirashvili and Chvelidze each took affirmative steps to obtain machineguns for him. Solomonyan and Spies sold one machinegun and seven semi-automatic firearms to Davis. Solomonyan and Spies were arrested. provided photographs of SAMs. Based on this conduct. Allah McQueen. and Vorobeychik were charged with the Domestic Gun Trafficking Offenses. Vorobeychik agreed to help and introduced Solomonyan to another supplier. Solomonyan also called Vorobeychik to help him obtain illegal guns for Davis. and Vorobeychik. who ultimately provided three illegal guns to Solomonyan and Spies. They agreed to help. Spies.
The Overseas Weapons Trafficking Offenses a. “GX” refers to a Government Exhibit offered in evidence. In April 2004 and thereafter. 87-90. and a second time at a spa in Brooklyn. (Tr. Davis met with Solomonyan and Spies twice in March 2004: once at a restaurant in midtown Manhattan (Tr. The first recorded call took place on February 10. through another person later identified as Solomonyan. Davis asked Spies to set up a meeting with Solomonyan. Davis and Spies resumed a conversation that they previously had concerning Spies’s efforts to obtain RPGs for Davis. On this call. Two days later. 239). “Russian made” RPGs from overseas. “SA” refers to the supplemental appendix filed with this brief. 121. “[Name] Br. Neither of these meetings was recorded. (SA 141). and Spies agreed. 117.” and “[Name] A. Specifically. Spies and Davis discussed Spies’s efforts to obtain. (Tr. * . 81-83. 108).” refers to the named defendant’s brief on appeal and appendix. 239).* After Davis provided this information. 2004. 98. (SA 135-36). 108-09). Spies and Solomonyan Offer To Sell Weapons to Davis The Government’s investigation began in February 2004 when Kelly Davis provided information about Spies to state and federal law enforcement agents in Texas.” refers to the trial transcript. (Tr. 92). Davis agreed to make a consensually-recorded call to Spies. (Tr.8 2. the FBI obtained court authorization to wiretap the cellular telephones of Spies “Tr.
(Tr. so that he and Spies could sell them to Davis. (Kharabadze A. Shortly thereafter. and other weapons. and Kharabadze agreed. and other military-grade weapons from military bases in Eastern Europe and sell the weapons to Davis. SAMs. 2004. and others concerning a proposed deal in which Solomonyan and Spies would acquire surplus RPGs. Kharabadze advised Solomonyan that their efforts to obtain arms “has been temporarily put on hold” because “the Russian side” was “closing the borders” and “clearing minefields in those parts. Kharabadze attributed the problem to “the peacekeeping Kantemirovskaya Division” and noted that “there’s no making a deal with them”. On April 23. These recorded calls established that Solomonyan contacted several individuals in the United States and overseas to help him obtain such weapons. 253). Solomonyan asked Kharabadze to help him obtain RPGs.9 and Solomonyan. these particular Russian troops could not be bribed to obtain the weapons. Specifically. Spies. Over the next several months. (Tr. Kharabadze advised Solomonyan by telephone that their efforts to obtain such weapons were being delayed by Russian military exercises occurring in the area where the weapons were being stored. Solomonyan. in other words. Kharabadze’s Efforts To Obtain Arms Overseas Kharabadze was one of the individuals Solomonyan contacted. 252). the FBI recorded dozens of calls between and among Davis. SAMs. b. 115-17). and Spies told Davis. 239-40). Solomonyan nevertheless remained optimistic that Kharabadze or one of his . Solomonyan reported Kharabadze’s news of the “obstacles” to Spies.” (Tr.
” even in “coded” language. On June 8. Kharabadze A. including the prices and quantities of particular weapons. Davis. (Kharabadze A. and he referred to prices on “Russian bases. 887-92. Kharabadze’s Overseas Arms Price List After the Texas meeting. because Kharabadze was using his “house phone. and the timing of a deal. and other weapons that were available in Eastern Europe to show to Davis. (Tr. SAMs. c.” (SA 148-49). shipping routes.” (Kharabadze A. Solomonyan advised Davis that he was having difficulty communicating with Kharabadze because Kharabadze would not “speak over the phone much. 2004. 2004. “at least . the negotiations took a significant step forward when Solomonyan sought and obtained from Kharabadze a price list of RPGs. 901). At this meeting.” (Tr. Solomonyan and Spies continued to negotiate with Davis concerning an arms deal at a face-to-face meeting in Texas on May 12. 2004. Solomonyan specifically asked Kharabadze to create a “price list” of the items they had discussed in person during a previous meeting. methods of packing and shipping. 152).10 other possible suppliers would eventually deliver the weapons: On April 28. Solomonyan told Spies that Kharabadze and the other possible suppliers were “very serious” people with whom Solomonyan had previously done “business” that “went perfect. Notably. Solomonyan and Spies addressed several aspects of the proposed deal. 130-58). (Tr. Solomonyan told Kharabadze the purpose of the price list was to show his customer. 901). 12758). Kharabadze agreed to provide a list of “approximate” prices.
211-12. (Tr. 207-08. (Tr. provide the price list to Solomonyan. Solomonyan and Davis discussed. among other things. (Tr. 907. d. Solomonyan traveled to a hotel in Manhattan for the first of two days of discussions with Spies and Davis concerning the proposed arms deal. The following day. The June 2004 Meetings Having obtained Kharabadze’s price list. Solomonyan wrote Kharabadze’s price list from memory on a piece of paper. “Flyer. but was submitted to the District Court for the sentencings of Solomonyan. Spies.” referring to Stinger SAMs. 161-63. Solomonyan handed the paper to Davis and asked Davis to memorize it. the range Davis’s writing (GX 17) was not admitted into evidence at trial (Tr. Davis’s writing included the words “AK47". “Stinger.” and “Rockets. “Ground to ground. Davis nevertheless made his own handwritten document* from Solomonyan’s writing.11 something real. (Tr. (Tr. and Kharabadze. Kharabadze agreed to. 923-929).” (Tr.” shorthand for RPGs. 1084). law enforcement agents saw Solomonyan enter Kharabadze’s apartment building on the Upper West Side of Manhattan and leave about an hour later. * . 181-82). in the presence of Spies. 915-16. (Kharabadze A. 901-02). 905-06). the types of weapons on the list. 915-16). During this meeting. 2004 — the meetings were recorded on video and audio. At the June 9 meeting. 948-49). 25457). On both days — June 9 and June 11.” (SA 121). and did.
” among other weapons.” referring to the use of uranium as a weapon of mass destruction. * . experienced a “flare-up in military activities. Davis ordered from Solomonyan and Spies 100 RPG launchers and 100 machineguns. Solomonyan agreed to provide exact dimensions to Davis. (Kharabadze A. Solomonyan sketched the dimensions of the shipping crates that would be used to transport RPGs. testified that. 218). (Kharabadze A.12 and firepower of the weapons. Solomonyan explained that his ability to acquire the weapons was being delayed by political unrest near the border of Russia and Georgia. in the summer of 2004. 223-24). 213-26). Solomonyan and Davis continued their negotiations on June 11 in the same hotel room. (Kharabadze A. For example. “Stinger[s]” and “mines.” (Tr. 1154-56). (Kharabadze A. who had overstayed his visa. among other things. Kharabadze A. South Ossetia. Alexander Melikishvili. (SA 122. 233-34). With respect to the timing of the deal. In addition. this border region. During this meeting. 162216). which Solomonyan said could be used in “[t]rain stations.* An Government expert witness. Near the end of the June 9 meeting. again in the presence of Spies. Solomonyan and Davis discussed in detail the price that Solomonyan had quoted for Stinger shoulder-fired SAMs. 225). and the dimensions of the containers that would be used to ship the weapons. Solomonyan raised the possibility that Davis could obtain a “green card” for Solomonyan. (Kharabadze A. Solomonyan also offered to sell uranium to Davis. the logistics of shipping and delivery.
(Tr. (Tr. who was in Karabakh. Surplus Weapons in Armenia Having received Davis’s initial order on June 11. 266). (Tr. 265). 2004. 2004. a city in Armenia with an active Russian military base that housed 4. where military exercises were then taking place. Solomonyan further stated.” meaning weapons. (Tr. Specifically.” (Tr. “If need be. Solomonyan called a man named Artur Barseghyan to discuss weapons that were available in Leninakan. . on June 25. 381-82). from Leninakan. Solomonyan requested Baregamyan’s help in obtaining “merchandise.13 e. One source of frustration for . 380-81). Armen Baregamyan.” (Tr. (Tr. 2004.000 Russian soldiers. 1159). their man will go there . f. a mountainous region in Azerbaijan. on December 27. Several months later. Solomonyan explained to Baregamyan that the weapons would be shipped from Leninakan to the Republic of Georgia and then to the United States by ship. . 380-81). he’ll stay there with them until everything is taken care of. 1152-54). 265-66). Solomonyan spoke by telephone with another man. Solomonyan told Barseghyan that he had learned from a “Georgian” that “[e]verything that Georgia owned was being dumped” in Leninakan and that the arms were “being written off” and “actively taken out of there. 376. in the days and months thereafter. The January 2005 Meeting A constant theme throughout Davis’s discussions with Solomonyan and Spies concerning the RPG and SAM deal was the slow pace of developments toward obtaining the RPGs and SAMs. Solomonyan spoke by telephone with two individuals concerning a specific plan to obtain surplus weapons from Leninakan (Tr.
Solomonyan assured Davis that they were all proceeding “according to the plan” and that “first” deal was “the most important and hardest[. “I’m working my ass off to get you some things. he spoke by telephone with a man named Spartak Yeribekyan located in or around Armenia to enlist his help in obtaining weapons. on January 26. 383). 268-69). Solomonyan achieved a breakthrough in his efforts to obtain weapons. 389). met with Solomonyan and Spies and gave them a two-week deadline within which to complete a deal for “shoulder fired missiles” and “rockets. 278-80). Davis. Solomonyan reported to Davis that Kharabadze was prepared to have such a meeting.” (Kharabadze A. (Tr. Solomonyan told Davis. 281-82.” (Kharabadze A. 2005. 280-81. 260. 2005. the meeting never occurred because Solomonyan had trouble reaching Kharabadze (Kharabadze A. Tr. Tr. However. On January 28. 2005. and because Kharabadze’s wife interfered. 383-404). Solomonyan told Yeribekian that Davis wanted to spend $2 million on . acting at the direction of the FBI. 387. To speed up the negotiations. Tr. (Kharabadze A. 284). 336). Also during this meeting. Davis showed to Solomonyan and Spies the green cards that he had obtained for them. On January 7. (Kharabadze A. but told them that they could not have the cards until more progress was made toward a deal. (Kharabadze A. 1057).14 Solomonyan was his inability to arrange a meeting between Davis and Kharabadze.]” (Kharabadze A. g. Photographs of the Overseas Weapons Shortly after this meeting.
” referring to RPGs. 403). Referring to the pressure that Davis was applying to complete the deal. and advised that Davis wanted 200 of them.” (Tr. Solomonyan asked Yeribekyan to “get closer” to a particular Russian individual who had access to the weapons. or to identify a soldier with “[a]ny rank. Solomonyan and Yeribekian agreed that Davis had considerable leverage on Solomonyan because Davis could use the same information that he had used to obtain the green card — Solomonyan’s fingerprints and other identifying information — to “twist your [immigration] papers to reduce you to a complete zero” and cause Solomonyan to be arrested. (Tr. 389-91). 402-03). Solomonyan said.” (Tr. as long as he has access to the warehouse” where the RPGs were stored.” (Tr. 397) and that the proposed deal with Davis was “quite serious. (Tr. Solomonyan told Yeribekyan. Let’s see how long this game goes on. I’ve been playing it for the past year. Solomonyan wanted to obtain surplus weapons that were being moved “to the area around Leninakan. 2005. Solomonyan advised.* For the proposed deal.15 arms (Tr. 391). Several days later. * .” where “[a] lot of overstock goes out unaccounted for under the pretense of [military] exercises. a fake one. 399). 387-89). Solomonyan and Yeribekyan spoke again to discuss arrangements for Solomonyan also told Yeribekyan that Davis had obtained a green card for Solomonyan but had refused to give it to him unless there was progress on the arms deal. 395-96). “He’s probably bluffing. In particular. on February 2. (Tr. I’ll wait and bluff him too. the deal would involve “those buckets that you put on your shoulders. (Tr.
2005. a FBI special agent bomb technician and an expert in explosive devices (Tr. (SA 253-54). Kharabadze A. The FBI obtained this information. Over the next several weeks. 404-06. on March 14. h. Spies. Solomonyan. and that Solomonyan would deliver them through an e-mail account. 120103). 1205-06).16 Solomonyan to send a digital camera to Yeribekyan in Armenia. 1116-17). 408. 420-22. and printed the photographs. (Tr. 1090. (Tr. 1133-35). a shoulder-fired heat-seeking anti-aircraft missile system (Tr. (Tr. 2005. SA 24446. 249-51). as a mortar launcher (Tr. 1132-33). a recoilless artillery and anti-tank gun (Tr. (Tr. and Kharabadze never applied for. 416-19. 1137-38). (Tr. Solomonyan told Davis that the photographs had been taken by a camera that Solomonyan had sent to a friend overseas — a reference . Solomonyan told Davis the photographs were forthcoming. or received. The March 2005 Meeting Solomonyan discussed these photographs in detail with Davis at their final meeting. accessed the e-mail account. The photographs depicted weapons systems that were identified at trial by Richard Stryker. These weapons systems were on the United States Munitions List in 2004 and 2005. 1125-27). (Tr. SA 123-34). 1130). Solomonyan provided the password and other information concerning this account by fax on February 25. registrations or licenses from the Department of State to broker transactions in such weapons. and an anti-tank guided missile launcher and wire-guided missile (Tr. so that pictures of the available weapons could be taken. 342-43). at a hotel room in Manhattan that was wired to record audio and video.
On one photograph. Chvelidze. 422). Solomonyan and Spies deliv- . SA 134). Solomonyan showed the photographs to Davis and made handwritten notes on many of them. who provided several guns to Solomonyan and Spies. through this scheme. 342-43). In total. Vorobeychik introduced Solomonyan to a man named Allah McQueen. Solomonyan recruited Nadirashvili and Chvelidze to help him obtain five machineguns for Davis in September 2004. Solomonyan called Vorobeychik to help him obtain guns. 338-42.17 to Yeribekyan. Kharabadze A. Also in September 2004. Davis. at the direction of the FBI. and Vorobeychik. 420-22. 344-50. During the meeting. indicating the quantities that he would be able to provide. Davis gave to Solomonyan and Spies the green cards that he had previously shown them. Nadirashvili and Chvelidze each spoke several times with Solomonyan concerning their efforts to obtain these weapons. asked Solomonyan and Spies if they could also sell him machineguns and semi-automatic rifles that were already located in the United States. 3. Solomonyan wrote “Armenia ÿ Georgia” to indicate the route that would be used to ship the weapons. the FBI arrested Solomonyan and Spies. but in the end they did not obtain any for him. (Kharabadze A. (Tr. Solomonyan and Spies agreed to do so. In the presence of Spies. (Tr. and they enlisted the help of several individuals — including Nadirashvili. (Tr. 327-335. The Domestic Gun Trafficking Offenses Several months after Solomonyan and Spies began negotiating with Davis to sell him RPGs and SAMs from overseas. After the meeting ended. 435).
Immediately thereafter. 294). 291. met with Solomonyan in Manhattan and gave him money to buy guns. Solomonyan asked Nadirashvili to help him find a supplier for the guns. Nadirashvili called Levan Chvelidze and used the same code words — “cars” with “automatic transmissions” — to enlist Chvelidze’s assis- . Solomonyan and Spies used coded language to discuss their efforts to obtain new and used machineguns to sell to Davis. Nadirashvili and Chvelidze Agree To Help Solomonyan Obtain Machineguns As early as July 17. (Tr. 2004. Specifically. which Solomonyan described in code as “cars” with “automatic transmissions. 2004.18 ered to Davis eight firearms. (SA 157-62). Solomonyan enlisted the help of Nadirashvili. among others. Chvelidze.” but Nadirashvili did not believe that the weapons could be obtained that night. Solomonyan suggested that Nadirashvili call “Levan” Chvelidze to see if “[u]p to five pieces” could be obtained that night. a.” (Tr. (Tr. Nadirashvili understood Solomonyan’s code almost immediately. 293-94). acting at the direction of the FBI. These efforts began in earnest on September 11. 289). (Tr. (Tr. 291). 291). (Tr. and Vorobeychik. including one machinegun. 2004. on September 11. Solomonyan called Nadirashvili and explained that “a friend” — a reference to Davis — had given Solomonyan money earlier that day to buy five machineguns. Following the meeting. 290-92). to obtain these weapons. when Davis. Nadirashvili agreed and said that Chvelidze has “good contacts.
“Tell me if you want to place an order or something. and gave Chvelidze’s telephone number to Solomonyan. reported Chvelidze’s advice that guns could not be obtained that day (Tr. 297). 299). Solomonyan called Chvelidze several minutes later. Ultimately. 305). and Chvelidze agreed to ask his supplier for this kind in particular. Chvelidze agreed to call a particular supplier right away. (Tr. assured Solomonyan that he would “keep looking .” meaning firearms. Solomonyan clarified that he needed “automatic” firearms. (Tr. (Tr. Chvelidze. (Tr. Chvelidze told Solomonyan that he would need “a couple of days” to get the “cars. Nadirashvili assured Solomonyan. the guns could not be obtained that day. 306). In one conversation. Nadirashvili called Solomonyan (Tr. 303-04). neither Nadirashvili nor Chvelidze obtained . Nadirashvili and Chvelidze had several additional conversations with Solomonyan detailing their efforts to locate firearms for him. see also Tr. 313-16. 308. “I’m gonna walk around Brighton [Beach. 2004. (Tr. for his part. SA 164-65). Once he understood the code. but he warned that he was not sure if the supplier had “automatic” firearms. it took Chvelidze approximately 30 seconds to understand that Nadirashvili was talking about guns. . 325-27. 1503-04. . in any event. 298). Chvelidze further stated. okay?” (Tr. on September 12.] I have a couple of people there and we’ll see if there’s anything there. Over the next several days.19 tance. (Tr. 307-09. 1496-97). to find out something” and would “try hard” (SA 165). 1470). 295-97. 294-95). (Tr. 298).” (Tr. A few minutes later. Whereas Nadirashvili had understood Solomonyan’s use of the code almost immediately. and that.
324). Vorobeychik called Solomonyan (Tr. and asked. 2004. on September 12. on September 12. 323).” (SA 167).m. Solomonyan called McQueen and told him that he needed a “few big trucks with fully automatic transmission. Solomonyan was more successful in obtaining guns from another source: Vorobeychik.m. Vorobeychik called McQueen. right? . McQueen initially did not understand Solomonyan’s code. 319-20. 324).m. Immediately thereafter. (Tr. (Tr. and told Solomonyan. Vorobeychik called Solomonyan again and confirmed that he “talked to him [McQueen]. Don’t be afraid of what he’s gonna talk to you about. 321-23). One minute later. A few minutes later. ‘Artur will call you. at 11:46 p. Specifically. Vorobeychik Introduces Solomonyan to a Dealer To Obtain Guns Around the same time (mid-September 2004).” (Tr.” (SA 168). I don’t know if you are talking about subliminally something else or you are talking about vehicles to drive. 319). McQueen then acknowledged that he understood what . 319-20. (Tr. 323). . 323). “[Y]ou are talking about trucks. 324). at 11:41 p. I told him. . Solomonyan replied.’” (Tr.20 guns for Solomonyan. 2004 (Tr. b. at 11:47 p.” (SA 168). gave McQueen’s telephone number to Solomonyan. . of course I am not talking about vehicles. “Listen. “I’ll just call him [McQueen] so that he understands who’s who and what’s what. (Tr. Vorobeychik introduced Solomonyan to a man named Allah McQueen for the purpose of obtaining guns.
2004. 2004. Vorobeychik spoke by telephone with Solomonyan to follow up on Solomonyan’s dealings with McQueen.” (Tr. . 333). (Tr. and they agreed to propose an ongoing arrangement with “Allah” in which Solomonyan would buy guns directly from McQueen. . We have to build the empire again. . 2004. On September 19. I only need two pieces[. A few days later. Solomonyan and McQueen spoke by telephone. 2004. (Solomonyan A. 338-39). Vorobeychik refused to answer what he meant by using the word “it. (Solomonyan A. One September 19 and 22. 336-38) (emphasis added). I once had a good empire. on September 22. But . Solomonyan and McQueen agreed in principle to trade handguns for rifles. Vorobeychik and Solomonyan spoke again about McQueen and his ability to provide guns. (Tr. (Solomonyan A. 33035. 2004. 361-63). Vorobeychik asked Solomonyan. On September 30. . In a statement to law enforcement agents after he was charged in this case. McQueen and Solomonyan discussed a trade of two handguns in exchange for an “AK” rifle.]” (Tr. 337-44). 330. . On October 8. “Well. (SA 168). using code. and a trade of two handguns in exchange for an “Israeli” Uzi. about Solomonyan’s desire to obtain guns. On this call. Vorobeychik admitted that the word “they” in this passage referred to Allah McQueen. 341). . “Can they really get it?” and Solomonyan responded. Solomonyan further advised Vorobeychik that he gave “a few pieces” to McQueen in a trade. Vorobeychik stated. Artur. 337-40).21 Solomonyan was talking about.
1329-32. [I]f you have a good turnover in three. four months. I already know it. 185-86. large income. Additional Firearms From September through December. 363). * . 2004. 2004. your income — Let’s take me for example. Solomonyan and Spies purchased five additional firearms for Davis in California and Florida. GX 195-97). which Spies deposited on October 2. Solomonyan obtained an automatic SKS machinegun in California in September 2004 (Tr. 2004 in a mini-storage locker location in Manhattan using a passcard and locker key that Davis had provided to him. 350-53. Vorobeychik said. (Tr. 364. Solomonyan and Spies ultimately obtained three firearms from McQueen. . 363). 344. 287. and it will be fucking great for him. 1262-68. 443-44). SA 180-81. c. 287. 362-63). Vorobeychik and Solomonyan further agreed that Vorobeychik would “discuss finances” with McQueen.” (Tr. 287). 367-71. (Tr. 287. . he’ll get 25 percent from us. They bought the first two in October 2004: a Norinco NHM 91 Long Gun and an Israeli-made Uzi Pistol. 188-93). I never made less than 30. (Tr. . (Tr. 513. (Tr.* Solomonyan and Spies purchased the third gun from McQueen — a “TEC 9" Interdynamic KG-9 9mm semiautomatic pistol — in Brooklyn on November 4.22 this one will provide permanent income. “Yeah. SA Spies was carrying this locker key at the time of his arrest. (Tr.
(Tr. In Florida. Vepkhia Jmukhadze testified that he competed with Kharabadze in powerlifting in the Republic of Georgia and in the United States. Boriz Saralitze testified that he was also a powerlifting acquaintance of Kharabadze. (Tr. 201-10). and (3) that he purchased semi-automatic guns in California because he wanted them for protection. 1208-14). 837-49. but he was not certain. 1549-53). 287. but no machinegun. Both wit- . Ultimately. (SA 213-14. 216). Spies. (2) that he never made any calls overseas to discuss obtaining weapons. B. Spies asked a man named Joseph Colpani to provide machineguns. (Tr. The Defense Case Kharabadze called two character witnesses in his defense case. and that it could have been weapons. 438-39). among other things. (1) that he did not know what kind of items Davis wanted him to purchase. (Tr. and two semi-automatic rifles in November 2004. Vorobeychik. SA 211-12. Colpani obtained for Spies two semi-automatic assault rifles. (Tr. Solomonyan stated to law enforcement agents. and that none of them had registered any machineguns or destructive devices. 287. 1300-09).23 176). and Chvelidze were not licensed firearms dealers. 1539-43. 1545-46). 2005. Nadirashvili. 222). Solomonyan and Spies were illegal aliens as of November 2004. Solomonyan. (Tr. SA 198-200. but he threw them out in the middle of the street because it was too risky to have them. 4. (Tr. Solomonyan’s Post-Arrest Statement Following his arrest on March 12.
Vorobeychik offered a certificate of naturalization stating that he became a U. (Tr. (Tr. there were “a few faults” in them. (Tr. which she then identified for the jury. Nadirashvili described his background and the nature of his relationship with Solomonyan. Chvelidze also offered certain “line sheets” (summaries of intercepted telephone calls) indicating that telephone calls were made by Solomonyan to Chvelidze in September 2004. New Jersey. Nadirashvili testified in his defense at trial. (Tr. 2004.S.” did not believe Chvelidze could possibly obtain firearms. (Tr. integrity and honesty. 1411-22). Nadirashvili then explained how he became involved in Solomonyan’s efforts to obtain firearms for Davis. The expert testified that while the three translations were generally accurate. The expert’s testimony focused on three of the Government’s translations of foreign language telephone calls. and was lying to Solomonyan when he agreed to search for weapons. 1594-96). (Tr. Kharabadze also offered a picture depicting him with Jmukhadze at a 2004 world championship powerlifting event in Atlantic City.24 nesses testified that Kharabadze had an excellent reputation in the community for trust. . 1554-55). 743-45. 1432-34). Nadirashvili “didn’t want this deal to happen. Nadirashvili stated that. 1598-1606). Chvelidze offered competing translations for these three calls. (Tr. although he had conversations with Solomonyan and Chvelidze about firearms. 1437-43). Chvelidze called an expert in the translation of Georgian and Russian to English. In his defense case. 747). (Tr. citizen on March 5. 1545).
(2) that the weapons in question were on the United States Munitions List (Kharabadze Br. Specifically. that Kharabadze aided and abetted Solomonyan and Spies in committing the substantive brokering offense charged in . and Spies participated in the conspiracy charged in Count One. 44-45). 46). Solomonyan. (Kharabadze Br. 53). Kharabadze contends that there was insufficient evidence of the following: (1) that Kharabadze willfully violated United States law in that he knew it was against the law to broker an arms deal or transport a machinegun or destructive device (Kharabadze Br. or had a financial stake in the deal (Kharabadze Br. 40. 42. 53).25 ARG UM EN T POINT I The Evidence Was Sufficient to Support the Jury’s Verdicts on the Overseas Arms Trafficking Offenses Kharabadze contends that there was insufficient evidence to support his convictions on Counts One and Two — the Overseas Arms Trafficking Offenses. There was ample evidence that Kharabadze. 39. 39. (5) that Kharabadze spoke to any overseas any arms dealers overseas about a weapons deal (Kharabadze Br. (4) that Kharabadze played any role in the weapons brokering scheme after June 9. (3) that Kharabadze himself negotiated prices or transfers of such weapons. (6) or that Kharabadze knew that Solomonyan was not licensed to deal in firearms. 2004 (Kharabadze Br. 43). 47). Each of these arguments fails. 47) or were a “machinegun” or “destructive device” (Kharabadze Br.
652). A reviewing court must review the evidence “in the light most favorable to the government. Spies in a conspiracy to acquire. that his efforts to acquire arms overseas were being delayed because of the activities of a particular unit of Russian troops.” drawing all reasonable inferences . I am not sure there is any other interpretation of the facts that are in evidence. Accordingly. Solomonyan and Mr. Kharabadze told Solomonyan on April 23. Sufficiency of the Evidence A defendant challenging the sufficiency of the evidence bears a “heavy burden. 328 U. 640 (1946). 364 F. and machineguns. Kharabadze’s challenge to the sufficiency of the evidence on Counts One and Two should be rejected. As Judge Holwell found at sentencing with respect to the events of June 2004: The most persuasive interpretation of that series of events that was laid before the jury was that at this point in time [June 9.S. 2004. Indeed. In June 2004. Applicable Law 1.3d 438.” See United States v. transport. A. SAMs. Mr. 459 (2d Cir. Kharabadze had knowingly and intentionally decided to assist Mr. For example. United States. Gaskin. and that Kharabadze was liable on Count Two under Pinkerton v. Kharabadze gave Solomonyan a price list of arms from Eastern Europe that were available for sale. and possess military weapons. including RPGs. 2004]. (Kharabadze A. 2004).26 Count Two.
Autuori. More particularly. 1256 (2d Cir.” United States v.” United States v. 548 (2d Cir. 39 F. 183 F.3d at 114 (quoting United States v.” United States v. United States v. 20 F. the court must “resolve all issues of credibility in favor of the jury’s verdict. 1993). United States v.3d 538.3d 122. a reasonable doubt or no reasonable doubt. 212 F. Gordon. 1994). and must apply the sufficiency test “to the totality of the government’s case and not to each element.3d 133. Desena. permissible inferences is for the [jury]. “[T]o avoid usurping the role of the jury. 177 (2d Cir. A jury’s verdict may be based entirely on circumstantial evidence. D’Amato. In a case where “‘either of the two results. Autuori. 2002). Guadagna. 137 (2d Cir. 2000).3d 105. 183 F.” United States v. 1999).’” United States v. 194 F. 245 F. 67 (2d Cir.3d 59. 287 F. is fairly possible. Guadagna.3d at 129) (internal quotation marks and brackets omitted).3d 170. a defendant’s knowledge of a conspiracy and his participation in it with criminal intent may be established through circumstantial evidence. not for the reviewing court. Matthews. 114 (2d Cir. the court must let the jury decide the matter. The Court must analyze the pieces of evidence “not in isolation but in conjunction.3d 1249. 130 (2d Cir. This approach “gives full play to the responsibility of the trier of fact .27 in its favor. as each fact may gain color from others. 906-07 (2d Cir. 987 F.2d 902. 1994). McDermott. Id. That is because “the task of choosing among competing. 2001). United States v. 1999) (“Even if there had been evidence regarding these [defense] theories in the record. 212 F. Plitman. the jury was free to reject it”).” United States v.
United States v. and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel. 234 (2d Cir.” United States v. 2003) (internal quotation marks and citations omitted). 176 (2d Cir. 2000) (citing United States v.3d 228. a defendant need not know every objective of the conspiracy.2d 2. Gleason. or “the identity of every co-conspirator. Virginia.” United States v. 1979).28 fairly to resolve conflicts in the testimony.2d 172.S.2d 287.” United States v. 1975)). 1991). 616 F.2d 998. Samaria. 239 F. Moreover. 1985). 307. to weigh the evidence.” United States v. 759 F.3d 170. With respect to conspiracy convictions. the deference accorded the verdict is “especially important because a conspiracy.” Jackson v. 335 F. To be a “convicted member of a conspiracy. 510 F. 1003-04 (2d Cir. Martino. see also United States . 319 (1979). Berger. “[a] conspiracy need not be shown by proof of an explicit agreement but can be established by showing that the parties have a tacit understanding to carry out the prohibited conduct. 297 (2d Cir. 224 F. The evidence of the defendant’s involvement in the conspiracy can be direct or circumstantial. Miranda-Ortiz.3d 107. 2001) (citations and quotations omitted). Papadakis. 443 U. 926 F. 113 (2d Cir. by its very nature is a secretive operation. United States v. 180 (2d Cir. It is also established law that the “the government need[s] only to prove agreement on one of the objectives charged in the indictment in order to establish that a conspiracy exist[s].” every “detail” about the conspiracy. Jackson. and to draw reasonable inferences from basic facts to ultimate facts. 16 (2d Cir.
883 (2d Cir.2d 187.”). 1293 (2d Cir. United States v.2d 872. 513 F. Frank. Soto. 1991) (“A conspiracy conviction based on a multi-object conspiracy may be upheld so long as evidence is sufficient with respect to at least one of the criminal objectives. see also United States v.2d 64. Gordils. 1975). 1302 (2d Cir. 1185 (2d Cir. Although a defendant’s mere presence at the scene of a crime is insufficient to prove membership in a conspiracy.”). See United States v.2d 1287. Engaging in the Business of Brokering Activities a. The Statute and Regulations Title 22. 1975) (where indictment charged conspiracy to commit securities fraud and mail fraud. 1984). 2. United States Code. Cirillo. his presence. 926 F. United States v.2d 1285.2d 1181.29 v. 499 F. 199 (2d Cir. Johnson. 982 F. 1974). 823 (2d Cir. a defendant’s knowing and willing participation in a conspiracy may be inferred from his presence at critical stages of a conspiracy that cannot be explained by happenstance. United States v. Bilzerian. 71-72 (2d Cir. 750 F. United States v. makes it an offense to engage in the business of brokering activities with respect to the import or transfer of certain weapons . 520 F. Pedroza.2d 819. 1992). “[e]vidence of accomplishment of one of the objectives of a conspiracy is enough to support the conspiracy conviction. Section 2778. 959 F. Indeed. 1992). together with evidence of other circumstances permitting an inference that he “knew about the enterprise and intended to participate in it or to make it succeed” will support a finding of his membership in the conspiracy.
. import. . Section 2778 criminalizes the violation of the licensing and registration requirements of the statute and the accompanying federal regulations. § 2278(c). .C. shall register with the United States Government agency charged with the administration of this section. 22 U. . . or transfer of any defense article . The statute provides. . . . 22 U. or transfer of any foreign defense article . [listed on the United States Munitions List]. . in relevant part: [E]very person . § 2778(b)(1)(A)(ii)(III). import. . .S.30 and explosives without a license. and shall pay a registration fee which shall be prescribed by such regulations. who engages in the business of brokering activities with respect to the .S. . . 22 U.S.C.C. . . in relevant part: Any person who willfully violates any provision of this [statute]. The statute further provides: No person may engage in the business of brokering activities described [above] without a license. § 2778(b)(1)(A)(ii)(I). or any rule or regulation issued under [this statute] . or in the business of brokering activities with respect to the . shall be guilty of a crime. subsection (c) of the statute provides.. issued in accordance with this chapter. Specifically. .
2(a). The regulations state in relevant part: No person may willfully cause.” The regulations define “brokering activities” to mean “acting as a broker as defined in § 129. § 129.R. or other consideration. transportation.F. license. induce.1(d). or any regulation. commission.C.R. approval.31 The federal regulations promulgated under Section 2778 further define the relevant terms. export. or taking of any other action that facilitates the manufacture.F. abet. or aid. or the omission of any act required by 22 U. irrespective of its origin. § 2778 . purchases. or order issued thereunder. or import of a defense article or defense service. c. procure or permit the commission of any act prohibited by.” 22 C.” 22 C.R. . Foreign Defense Articles: The United States Munitions List The implementing regulations define “defense article” to mean “any item or technical data designated in [22 . sales or transfers of defense articles or defense services in return for a fee. .2(b). counsel. b. § 129. 22 C.S.F. § 127. freight forwarding.2(a)” and “includes the financing. Brokering Activities The implementing regulations also define the term “brokering activities” and “broker. demand. The regulations define “broker” to mean “any person who acts as an agent for others in negotiating or arranging contracts.
(c) Apparatus. detection. Guided Missiles. § 120. (b). Bombs and Mines”: (a) Rockets (including but not limited to meteorological and other sounding rockets). and systems. torpedoes. monitoring. activation. and (g) above are further designated by Section 121. § 121.R.6. The following weapons are designated as defense articles in Category IV of the Munitions List. (b) Launch vehicles and missile and antimissile systems including but not limited to guided. tactical and strategic missiles.1(b). The defense articles listed in paragraphs (a). launchers.] § 121. Torpedoes.1 (CATEGORY IV). Rockets.” 22 C. Ballistic Missiles.1 as “significant military equipment” (“SME”). § 121. *** (g) Non/nuclear warheads for rockets and guided missiles. depth charges.R.F.32 C. land and naval mines. and materials for the handling. bombs. 22 C.F.1. devices.R. Section 121. entitled: “Launch Vehicles. .F.R. control. or detonation of the articles in paragraphs (a) and (b) of this category. 22 C. protection. as well as launchers for such defense articles.F. and demolition blocks and blasting caps. grenades. discharge.1 is the United States Munitions List.
and any foreign person located in the United States or otherwise subject to the jurisdiction of the United States . .F. . . § 129. See generally 22 C. The Office of Defense Trade Controls is now named “the Directorate of Defense Trade Controls.” 22 U. . .S.” Citations herein are to the Code of Federal * . . 22 C.R.3(a). is of United States origin or whether such article contains United States origin components. . The regulations state. of a nature described on the United States Munitions List regardless of whether such article . subject to the controls of this subchapter . or transfer of any defense article . §§ 120. d. person. or any foreign defense article . § 129. .7.2(c). wherever located. . . .* The Office of Defense Trade Controls is the office within the State Department which regulates the importation and exportation of defense articles.1. in relevant part: Any U. 22 C. Registration and Licensing Requirements The implementing regulations set forth the registration and licensing requirements for brokers of defense articles.R. § 2778(b)(1)(A)(ii)(IV). 129.F. . . who engages in the business of brokering activities . . . is required to register with the Office of Defense Controls. with respect to the .S.F.C.R. import. .33 The term “foreign defense article” includes any “non-United States defense article .
. . to or from any country. covered by. (2) Brokering activities involving defense articles . . . . during which time the name “Office of Defense Trade Controls” was in use. . 22 C. § 129. .6(a). . Brokering activities that require prior written approval include the following: (1) Brokering activities pertaining to certain defense articles . [including] . that are designated as significant military equipment under this Regulations in effect in 2004-05. or of a nature described by Part 121. the Office of Defense Trade Controls .R.” 22 C. . or prior notification to. covered by or of a nature described by Part 121. .F.R. in addition to those specified [above]. foreign defense articles . . . . § 120.34 The regulations further provide that individuals may not engage in the business of brokering activities without written approval: No person may engage in the business of brokering activities without the prior written approval (license) of.20.F. . . A “license” is a “document bearing the word ‘license’ issued by the Director of the Office of Defense Trade Controls or his authorized designee which permits the export or temporary import of a specific defense article .
for or from any country not a member of the North Atlantic Treaty Organization. or Japan whenever . .S. [t]he recipient or end user is not a foreign government or international organization. United States Code. automatically more than one shot. . in relevant part. § 922(a)(4). licensed manufacturer. other than a licensed importer.R.C.7(a)(1)(vii) & (a)(2)(iv). is designed to shoot.F. without . . The term “machinegun” is defined as: “any weapon which shoots. This statute provides. Transportation of a Machinegun or Destructive Device Title 18. except as specifically authorized by the Attorney General consistent with public safety and necessity. to transport in interstate or foreign commerce any destructive device [or] machinegun (as defined in section 5845 of the Internal Revenue Code of 1986) . Section 922(a)(4) criminalizes the transportation in interstate or foreign commerce of a machinegun or destructive device without a license. or licensed collector. Australia. . 3. licensed dealer. §§ 129. that it shall be unlawful for any person. 18 U. New Zealand.35 subchapter. 22 C. or can be readily restored to shoot.
C. 4.S. § 2(a). or procures its commission. § 5845(f). expel a projectile by the action of an explosive or other propellant.36 manual reloading. (D) missile having an explosive or incendiary charge of more than one-quarter ounce. . is punishable as a principal. by a single function of the trigger.S. .] 26 U. or which may be readily converted to. induces.C. (E) mine. (B) grenade. (C) rocket having a propellent charge of more than four ounces. . except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes[. (2) any type of weapon by whatever name known which will. 18 U. Aiding and Abetting Liability The aiding and abetting statute provides that: Whoever commits an offense against the United States or aids. . the barrel or barrels of which have a bore of more than one-half inch in diameter. commands.C. counsels. The statute defines “destructive device” to include: (1) any explosive. 26 U. § 5845(b).S. abets. or (F) similar device. incendiary. or poison gas (A) bomb.
” United States v. explicitly confirm[ed] the nature of the activity in which the co-conspirators were engaged. [such as] evidence that the defendant participated in conversations directly related to the substance of the conspiracy[. 239 F. Best. . 2000).3d 170. . 83 F. and “must include some indicia of the specific elements of the crime . 219 F. 83 F. 219 F. Pipola. and had an interest in furthering it. 562 (2d Cir. 83 F. 776 F.3d 556. 2003). Wiley.2d 1091. 180 (2d Cir. United States v. 1097 (2d Cir. See United States v. . the Government is required to prove that the underlying crime was committed by a person other than the defendant and that the defendant acted with the intent of advancing the commission of the underlying crime. Samaria. Best. Zambrano. 199 (2d Cir.3d at 562 (citing United States v. . . 334 F. 2001) (internal quotations marks and citations omitted). see also United States v. .3d 228. The evidence of knowledge and intent can be circumstantial. received a share of the profits from the conspiracy[. Pipola.37 To convict a defendant on a theory of aiding and abetting. . Rather. United States v. or] .” Pipola. 1985)).3d at 199-200.3d at 562. 235-36 (2d Cir. . . it is sufficient that the evidence demonstrate that the defendant “joined and shared in the underlying criminal endeavor and that his efforts contributed to its success. . 1996) (“To show specific intent the prosecution must prove the defendant knew of the proposed crime .] . The Government is not required to prove that the defendant knew all of the details of the crime.3d 192. 154 (2d Cir.2d 150. Hamilton. Aiding and abetting “requires a defendant’s conscious assistance in the commission of the specific underlying crime.” United States v.”) (citing United States v. 1988)). 846 F.
’ and (b) ‘reasonably foresee[able]’ by the coconspirator sought to be held responsible ‘as a necessary or natural consequence of the unlawful agreement. Pinkerton is not a “broad principle of vicarious liability that imposes criminal responsibility upon every co-conspirator for whatever substantive offenses any of their confederates commit. 2004) (citing United States v. 164 F. “coconspirator liability was carefully confined to substantive offenses that are (a) committed ‘in furtherance of the conspiracy. 620 (2d Cir. 56 (2d Cir.3d 729. 1998) (quoting United States v. “Whether a particular crime is foreseeable and in furtherance of the conspiracy is a factual matter for the jury. rather. . Bruno.3d 611. 83 F. at 647-48).38 5. 1992)). 88 (2d Cir. Jordan.’” United States v. 1996)).3d 55. 734 (2d Cir. United States.” United States v. 328 U. a co-conspirator who does not commit a substantive offense directly “may be liable for that offense if it was committed by another coconspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement. 640 (1946). “once a conspiracy has been established.3d 65.” Rosario v. Under Pinkerton.” United States v.2d 53. Pimentel. United States. Gallerani. the criminal liability of its members ‘extends to all acts of wrongdoing occurring during the course of and in furtherance of the conspiracy.S. Under Pinkerton. 58 (2d Cir. 927 F. 1991)). 90 (2d Cir. Bryser.’” United States v.S. 68 F. Romero.2d at 56 (quoting Pinkerton. 954 F.2d 79. Pinkerton Liability Under the Supreme Court’s decision in Pinkerton v. 328 U. Jordan. 927 F. 383 F. 1995) (quoting United States v.
40. that it had been committed in furtherance of an unlawful conspiracy. 998 F. a trial judge may properly charge a jury — as the Court did here (see Tr. 47). 53). Accordingly. Discussion The evidence was more than sufficient to support the jury’s verdict against Kharabadze on Counts One and Two.3d at 620 (quoting United States v.3d 88. 39. (5) that Kharabadze spoke to any overseas any arms dealers overseas about a weapons deal (Kharabadze Br. 51 (2d Cir.’” United States v. 1990). 47) or were a “machinegun” or “destructive device” (Kharabadze Br. 46).39 897 F. B. Kharabadze contends that there was insufficient evidence of the following: (1) that Kharabadze willfully violated United States law in that he knew it was against the law to broker an arms deal or transport a machinegun or destructive device (Kharabadze Br. 2106-08) — that it “‘may find a defendant guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed. see also United States v. 149-50 (2d Cir. 2004 (Kharabadze Br. 100 (2d Cir.2d 91. (4) that Kharabadze played any role in the weapons brokering scheme after June 9. 152 F. 42. (3) that Kharabadze himself negotiated prices or transfers of such weapons. and that the defendant was a member of that conspiracy. Salameh. 1993)). and (6) that Kharabadze knew that Solomonyan was not licensed to deal in fire- . or had a financial stake in the deal (Kharabadze Br. 1998) (approving Pinkerton instruction). 68 F. Gallerani. (2) that the weapons in question were in fact United States Munitions List items (Kharabadze Br. 39. 44-45). Harwood. 43).2d 47.
40 arms. (Kharabadze Br. 53). Each of these contentions fails, for the reasons stated below. 1. There Was Sufficient Evidence of Kharabadze’s Intent Kharabadze contends that there was insufficient evidence that he had the requisite level of knowledge and intent to broker an arms deal or transport a machine gun or destructive device. (Kharabadze Br. 40, 47-48). The contention is without merit. There was ample evidence that Kharabadze willfully entered into a conspiracy to engage in the business of brokering activities with respect to Munitions List items, as charged in the first object of Count One, and to transport a machinegun or destructive device in interstate or foreign commerce, as charged in the second object of Count One, and that he aided and abetted Solomonyan and Spies as they engaged in the business of brokering activities with respect to Munitions List items, as charged in Count Two. The recordings offered at trial established, among other things, that Kharabadze was conscious of his guilt, and therefore he understood that what he was doing was wrong and illegal. See, e.g., United States v. Gordon, 987 F.2d 902, 907 (2d Cir. 1993) (holding that criminal intent may be proven through circumstantial evidence, including evidence of consciousness of guilt). There are at least three ways in which Kharabadze demonstrated his consciousness of guilt and therefore, that he knew he was breaking the law in the United States, where he lived. First, Kharabadze’s consciousness of guilt was proven through his treatment of the price list. Kharabadze instructed Solomonyan to insist that Davis not
41 copy the price list when Davis and Solomonyan met in Manhattan; instead, Davis was required to memorize it. At the June 9, 2004 meeting, when Solomonyan gave Kharabadze’s prices to Davis, Solomonyan insisted that Davis memorize the list rather than copy it down. Solomonyan said, referring to the list, “This is the range. Can you try to memorize this, this is the range, approximate. This is the (UI) price range.” (Kharabadze A. 161). Indeed, Solomonyan repeated the instruction to memorize the list again and again to Davis over the course of their June 9 meeting. (Kharabadze A. 161, 163, 181). Solomonyan further indicated that the instruction to memorize the list had been communicated to him by another person: “Just try to memorize it [the price list]. . . . that’s what they want you to do[,] memorize[.]” (Kharabadze A. 163) (emphasis added). The jury reasonably could have concluded that “they” referred to Kharabadze because he is the one who provided the price list. Kharabadze had only one reason to require that Davis not copy the list — to avoid creating an incriminating document that might fall into the hands of law enforcement agents in the New York area. If Kharabadze believed that Solomonyan or Spies had a license to broker a deal in or transport foreign military weapons, or that it was otherwise legal to do so, he would not have insisted on this precaution. Second, Kharabadze showed his consciousness of guilt when he mentioned to Solomonyan on April 23, 2004, that, with respect to “the peacekeeping Kantemirovskaya Division” there was “no making a deal with them,” meaning, these particular Russian troops could not be bribed in furtherance of obtaining weapons. (Tr. 253). If
42 Solomonyan or Spies had the proper license to broker or transport these weapons, or if it was otherwise lawful to do so, there would be no reason to resort to a bribe to obtain them; in that case, the weapons could be bought openly, without a bribe. From this evidence, a reasonable jury could have inferred that Kharabadze’s awareness of the need for bribery demonstrated his understanding that his participation in the conspiracy was wrong and illegal. Third, Kharabadze was careful when he spoke on the telephone with Solomonyan. A rational jury could have found that he did so because he feared the calls could be traced back to him by United States law enforcement agents. As Solomonyan said to Davis at their May 2004 meeting, Kharabadze “doesn’t really doesn’t speak over the phone much. This is his house phone. . . . [H]e calls me very smartly . . . if I don’t know what he’s talking about . . . I can see him in person.” (Solomonyan A. 264-65). To prove that Kharabadze acted with the requisite knowledge and intent, the Government did not need to prove that Kharabadze knew about the Munitions List, per se ,or the licensing requirement to broker a transaction in Munitions List items or transport machinegun or destructive device in foreign commerce. As the Court properly instructed the jury (Tr. 2070), a defendant need not have known which particular law or rule he was breaking; he need only have been aware of the unlawful nature of his acts. See Bryan v. United States, 524 U.S. 184, 191-96 (1998) (holding that to convict a defendant of unlicenced firearms dealing, in violation of 18 U.S.C. §922 (a)(1)(A), the evidence must prove that the defendant knew his conduct was unlawful, but not awareness of the specific
43 law he is charged with violating); United States v. Ali, 68 F.3d 1468, 1473 (2d Cir. 1995) (“To prove willfulness [under 18 U.S.C. § 922(e)], the government need not establish that the defendant had specific knowledge of the statute he is accused of violating, nor that he had the specific intent to violate the statute.”). 2. There Was Sufficient Evidence that the Price List Included Munitions List Items and a Machinegun or Destructive Device Kharabadze contends that there was insufficient evidence that the weapons in question were on the United States Munitions List or were a machinegun or destructive device. (Kharabadze Br. 47). Kharabadze does not contest the evidence that the following weapons were on the United States Munitions List at the relevant time: RPGs, SAMs, and machineguns. (Tr. 1201-03). Accordingly, if the price list contained any of these items, it contained items on the Munitions List. Based on the June 2004 meetings, a reasonable jury could have found that RPGs, RPG launchers, SAMs, and machineguns were indeed on Kharabadze’s price list. At the June 9, 2004 meeting, when Solomonyan discussed Kharabadze’s price list with Davis, Solomonyan referred to, among other things, “hand grenade[s]” with “50-meter” and “200-meter” ranges.” (Kharabadze A. 164). These are RPGs. Later during the same meeting, Solomonyan referred to a “launcher” (Kharabadze A. 204), a reference to an RPG launcher. Two days later, on June 11, 2004, Solomonyan and Davis continued their discussion about the items on Kharabadze’s list. At this time, Davis placed
A reasonable jury could find that “they” referred to Kharabadze.” (Kharabadze A. (Kharabadze A. A reasonable jury could have found from these conversations that RPGs. § 5845(b) (defining a machinegun as a weapon that “shoots. without manual reloading.S. When Davis suggested that the price listed for Stingers is “fairly cheap. and machineguns were on Kharabadze’s price list. With respect to the second object of Count One — the conspiracy to transport a “machinegun” or “destructive device” in interstate or foreign commerce — the same June 2004 conversations provide ample evidence that Kharabadze’s price list included a “machingun” and a “destructive device.” which Solomonyan acknowledged to be a type of “surface to air heat seeking missile.” (Kharabadze A. or can be readily restored to shoot. 223) (emphasis added). 2004 meeting. 22324) which are. 221). 223-24) are machineguns. and therefore that the price list contained items on the United States Munitions List. Also during the June 11. SAMs. by definition. Spies and Davis collectively referred to as “flyers. And based on the testimony of FBI explosives expert Richard Stryker. automatically more than one shot.” “[F]ully automatic AK[-47]s” (Kharabadze A.” code for RPGs. a . Solomonyan and Davis explicitly discussed the price of “Stingers. by a single function of the trigger. See 26 U.C. machineguns. Davis placed an order for “fully automatic AK[-47]s” (Kharabadze A.44 an order for “warheads” and “launchers. who provided the price list to Solomonyan only two days before. 221. 223). but that the prices are “what they told me.” which Solomonyan. Also during this conversation. is designed to shoot.” Solomonyan stated that he was also “surprised” by the price.”).
United States Code. in one of the first calls with Davis. Kharabadze. referred to prices of weapons on “Russian bases.45 reasonable jury could find that Stingers and RPGs constituted “destructive devices” within the meaning of Title 26. Stryker testified that a rocket-propelled grenade is a “high explosive antitank [warhead]” that is launched under “rocket” power (Tr. Solomonyan explained to Baregamyan that the weapons would be shipped from Leninakan to the Republic of Georgia and then to the United States by ship. or that he had a financial stake in the deal. 46-47).” (SA 136). and that a Stinger is a “single-person shoulder launched missile. (Kharabadze Br.” (Tr. This argument fails because the . (Tr. 1139). Spies. which were to come “from there. The Government Was Not Required to Prove that Kharabadze Personally Negotiated the Prices of an Arms Deal or that He Had a Financial Stake in the Deal Kharabadze contends that there was insufficient evidence to convict on Counts One and Two because the Government did not prove that Kharabadze personally negotiated the prices or other details or an overseas arms deal. in a telephone conversation with Solomonyan.” (Tr. 1139-40). 38182). referred to “Russian made” RPGs. 901). 3. a reasonable jury could find that the weapons in question were to come from Eastern Europe and therefore involved transport in foreign commerce. Section 5845(f). With respect to the foreign commerce element.
46 Government was not required to prove these things to establish a violation of Counts One or Two. in January 2005.” (SA 232). Kharabadze’s conviction on Count One may be affirmed on that basis alone. “I’ll get his [Davis’s] money. Second. Indeed.” (SA 242). Kharabadze’s arguments on this point do not apply to the second object of Count One: conspiracy to transport a machinegun or destructive device in foreign commerce. As an initial matter. This second object has no “brokering” element. because there was sufficient evidence that Kharabadze conspired to transport a machinegun or destructive device. the Government need not prove Kharabadze received or had any expectation of receiving any compensation for him to be guilty of conspiracy to transport a machinegun or destructive device. Third. Solomonyan told Spies. as charged in the second object of Count One. although Kharabadze did not personally negotiate prices or receive a fee. there was sufficient evidence from which a reasonable jury could infer that. Solomonyan said to Spies. and it contains no requirement of any expectation of compensation. it is irrelevant that Kharabadze did not negotiate prices himself or receive any compensation in the end. For example. Accordingly. there was ample evidence that Solomonyan and Spies acted as brokers and expected to collect money from Davis in exchange for providing the arms. “[I]f we make a deal we’ll make money. One week later. Because Kharabadze conspired with Solomonyan and Spies. Solomonyan repeatedly mentioned to Spies his expectation that he would make money from any deal with Davis. he under- .
commission. The argument fails. or after June 9.2(a)). 901-02). “at least something real” in furtherance of the negotiations. The Duration of Kharabadze’s Participation in the Scheme Kharabadze contends that there is insufficient evidence that he had any role the overseas arms scheme before April 2004.47 stood that Solomonyan and Spies expected to earn a fee or other compensation for their brokering activities — and that Kharabadze himself expected to earn a fee. Kharabadze provided a price list of weapons. See . Davis. or other consideration” (22 C. The liability of a co-conspirator or aider and abettor is not measured by the extent or duration of his participation. 42-44). 4. Moreover.R. each member may perform separate and distinct acts and may perform them at different times. § 129. the extent or duration of a defendant’s participation in a criminal scheme has no bearing on the issue of a defendant’s guilt. the purpose of which. Kharabadze understood that the object of Solomonyan’s negotiations with Davis was to make money. when he provided the price list to Solomonyan. (Tr.F. Solomonyan told him. 2004. given the highly illicit nature of brokering in RPGs and SAMs — the manifest danger of which is obvious — a reasonable jury could infer Kharabadze understood that Solomonyan would not do so without expectation of “fee. (Kharabadze Br. and that Kharabadze himself also expected consideration of some kind. was to show Solomonyan’s customer. In June 2004. First. The discussion of prices with a customer necessarily entails negotiations and a prospect of earning money from a transaction.
Here. United States v. 2004. 2004.. a single act may be sufficient for a reasonable jury to draw an inference that a given defendant “was involved in a criminal enterprise of substantial scope. 824 F. DeNoia.g. Nersesian. and still others became involved in its late stages”). 1974). D’Amato.2d 979. Kharabadze furnished a price list of weapons that included. Through his actions up through and including June 9.g. while others were involved in its early stages. As the District Court found at Kharabadze’s sen- . 1971). 2004.2d 359. and machineguns. that is sufficient. Kharabadze is incorrect when he states that there is no evidence of his involvement after June 2004. Therefore.48 e. See.. there was ample evidence that Kharabadze took numerous actions in furtherance of the conspiracy. Where the single act is such as to justify an inference of knowledge of the broader conspiracy.2d 1294. He spoke to Solomonyan by telephone about the status of his efforts to acquire military weapons from overseas on April 23. among other things. 493 F. 451 F. e. 981 (2d Cir. United States v. 1987) (affirming jury’s finding of a single conspiracy to import and distribute heroin despite lapse of time and “change in membership” when jury could reasonably conclude that some conspirators “participated throughout the entire period of the conspiracy. once the existence of a conspiracy has been proven. 365 (2d Cir. which was likely to involve other persons. In any event. Moreover. he showed that he agreed to participate in the conspiracy charged in Count One. RPGs. it is irrelevant whether Kharabadze intended to commit any overt act after June 9. On June 9. Stinger SAMs. 1303 (2d Cir.” United States v.
”) (internal quotation marks and citations omitted). Jackson. it is hardly surprising that Kharabadze never took the position at trial that he withdrew from the conspiracy. 541 F. even if Kharabadze had withdrawn on that date.3d 182. 369 F. as late as January 7. 2005. 182 (2d Cir. 2003)). 2002) (“Withdrawal is an affirmative defense. Moreover. First. 2004. 695 (2d Cir. Thus. Yannotti. 2004) (“To withdraw from a conspiracy. United States v.49 tencing (Kharabadze A.3d 682. Geibel. To the extent that Kharabadze is now arguing that he withdrew from the conspiracy after June 9. he would still be guilty. Flaharty. 260-61). 2008). 123 (2d Cir. a person must take some affirmative action either by making a clean breast to the authorities or communicating the abandonment in a manner reasonably calculated to reach co-conspirators. See United States v. and the defendant has the burden of showing that he performed affirmative acts that were inconsistent with object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.3d 170. See United States v. that argument is without merit. 295 F. . there is no evidence that Kharabadze took any affirmative step to withdraw. 627). as he would have participated in the conspiracy during the limitations period. 335 F.”) (quoting United States v. (Kharabadze A. 192 (2d Cir. Kharabadze was willing to meet with Davis regarding an overseas arms deal.3d 112.
there would be a delay in getting military weapons because the troops in question cannot be bribed.” (Tr.50 5. as a result of Russian troop movements. Kharabadze replied. A reasonable jury could find that Kharabadze got this information from an overseas arms dealer. A . This is the call in which Kharabadze informed Solomonyan that he had learned that. but that he would “have to ask” to get them. (Tr. The Government Was Not Required to Prove that Kharabadze Had Direct Contact with Any Weapons Suppliers in Eastern Europe or Elsewhere Kharabadze contends that there was insufficient evidence that he had any direct contact with any weapons suppliers in Eastern Europe or elsewhere. 900-01). (Tr. 44-45). In addition. a reasonable jury could conclude from Kharabadze’s April 23. Solomonyan asked Kharabadze whether he could “write the stuff down” regarding the information that they had previously discussed when they were “at the movies. the Government was not required to prove that Kharabadze had direct contact with overseas weapons suppliers. The contention fails for two reasons. 42. the June 8. “Ah. viewed in the light most favorable to the Government. 2004 call with Solomonyan that Kharabadze did in fact have direct contact with an overseas arms dealer. Second. Without hesitation. contains additional evidence that Kharabadze had overseas contact about weapons prices. First. Such contact is not an element of the offenses charged in Counts One and Two. (Kharabadze Br. 2004 call between Solomonyan and Kharabadze. the prices?” Kharabadze said that he could get “approximate” prices. 901). 253).
The Government did not intercept every land line. the jury could have inferred that Kharabadze had overseas contacts who were helping him acquire military weapons for Solomonyan to sell to Davis. or other means of communication that Kharabadze could possibly have used to contact overseas arms suppliers. Count Two: Aiding and Abetting and Pinkerton Liability For largely the same reasons that the evidence proved that Kharabadze willfully participated in the conspiracy charged in Count One. separate and apart from the April 23. Kharabadze also referred to his overseas contacts when he said. pay phone. cellular telephone. It is therefore irrelevant that there was no recorded telephone call between Kharabadze and a weapons dealer overseas. a. there was sufficient evidence of Kharabadze’s willfulness to convict him of Count Two. The only question.51 reasonable jury could conclude that Kharabadze was referring to his overseas contacts. well. or a toll record of such a call. then. they know approximately. 2004 call. they don’t know anything themselves. Aiding and Abetting Viewed in the light most favorable to the Government. with respect to aiding and abet- . there was ample evidence that the crime described in Count Two occurred: Solomonyan and Spies “brokered” in weapons that were on the United States Munitions List. Based on this June 8. “It’s just that at this point. Under an aiding and abetting or Pinkerton theory. 2004 call. there was sufficient evidence to convict Kharabadze of Count Two. 6. 901) (emphasis added).” (Tr.
SAMs. This list formed the basis for Solomonyan’s negotiations with Davis on June 9 and June 11. 901-02. he told Solomonyan why there was a delay in obtaining weapons from Eastern Europe (Tr. In June 2004. 2004. 252-54). and did. and machineguns. a reasonable jury could conclude that Kharabadze intended to assist Solomonyan’s illegal brokering scheme.” As described above. In April 2004. there was sufficient evidence of Kharabadze’s “willfulness. Kharabadze was careful in his use of his home telephone. 905-06. Kharabadze’s other contentions fail with respect to aiding and abetting liability. Kharabadze A. As discussed above. assist Solomonyan’s scheme to broker a deal in items that were on the United States Munitions List without the proper registration and license. the jury reasonably could have concluded that Kharabadze intended to. (Kharabadze A. he gave Solomonyan a price list that included RPGs. and he understood that a bribe might have been necessary to acquire the weapons overseas. (Tr.52 ting liability. 160). From this evidence. he instructed Solomonyan not to allow Davis to retain a copy of the price list. there was ample evidence that Kharabadze knowingly and intentionally engaged in actions to assist Solomonyan’s scheme for the purpose of advancing the scheme. 217-57). To prove that Kharabadze aided and abetted the commission of the crime charged in . 159-216. From this evidence. is whether Kharabadze acted with the specific intent of advancing the commission of the underlying crime charged in Count Two. With respect to Kharabadze’s intent to aid and abet the commission of Count Two.
(2) that Solomonyan and Spies were member of the conspiracy charged in Count One. accordingly. Because Kharabadze never “withdrew” from the conspiracy. the jury reasonably could have found the following Pinkerton elements: (1) that the crime charged in Count Two was committed by Solomonyan and Spies. 2004. Pinkerton The jury reasonably could have convicted Kharabadze of Count Two on a Pinkerton theory for the same reasons that they could have convicted him of Count One. The weapons . Kharabadze was still a member of the conspiracy at that time. 2004. he was a member of it until it ended in March 2005. even if Solomonyan brokered a transaction in violation of Count Two after June 9. (4) that Kharabadze was a member of the conspiracy charged in Count One at the time Solomonyan and Spies committed the crime charged in Count Two. when the evidence is construed in the Government’s favor.53 Count Two. and (5) that Kharabadze reasonably could have foreseen that Solomonyan and Spies could commit the crime charged in Count Two. for example — was foreseeable to Kharabadze. The brokering activity engaged in by Solomonyan after that date — as evidenced by his procurement of photographs of weapons in 2005. received a fee or expected to receive a fee. that he played a role after June 9. 2106-07). b. For the reasons stated above. the Government did not have the burden of proving that he personally negotiated prices. (See Tr. or that he in fact had direct contact with overseas weapons suppliers. (3) that the substantive crime was committed pursuant to the common plan and understanding that existed amongst the co-conspirators.
a shoulder-fired heat-seeking anti-aircraft missile system (Tr. Spies. and Chvelidze with engaging in the business of dealing in firearms without a license in violation of 18 U.C.S. 1333-37). 1133-35). § 922(a)(1)(A).54 shown in the photographs were largely the same weapons on Kharabadze’s price list: machineguns (Tr.C. Vorobeychik. Nadirashvili. Chvelidze. Accordingly. Nadirashvili. Vorobeychik. § 922(o). beginning in September 2004. Count Three charged Solomonyan. an anti-tank wire-guided missile system (Tr. POINT II The Evidence Was Sufficient to Support the Jury’s Verdicts on the Domestic Gun Trafficking Offenses Nadirashvili. and the like. Count Four charged Solomonyan. Spies. and (2) transfer or possess a machinegun in violation of 18 U. 1137-38).S. Nadirashvili and Chvelidze agreed to help Solomonyan obtain machineguns and took affirmative steps to do so.S. a reasonable jury could have found Kharabadze liable for Count Two under a Pinkerton theory. A reasonable jury could have found that it was foreseeable to Kharabadze that Solomonyan would eventually broker a deal for these kinds of weapons. There . § 922(a)(1)(A). There was ample evidence that.C. The arguments are without merit. and Chvelidze with conspiring to (1) engage in the business of dealing in firearms without a license in violation of 18 U. and Vorobeychik contend that there was insufficient evidence to support their convictions on Counts Three and Four: the Domestic Gun Trafficking Offenses.
C.S. and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit[. transport. or receive any firearm in interstate or foreign commerce.” except that proof of profit is not “required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes[. Unlicensed Firearms Dealing Title 18.S. or in the course of such business to ship.55 was also ample evidence that.” 18 U. § 921(a)(3)(A). to engage in the business of .S. A “firearm” is defined as any weapon “which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” 18 U.C. Vorobeychik knowingly helped Solomonyan obtain guns by introducing him to a gun supplier and agreed with Solomonyan to split profits from further gun dealing business. Applicable Law 1.S.]” 18 U. § 921(a)(22). dealing in firearms. Section 922(a)(1)(A). licensed dealer. The Government need not prove that dealing in firearms is the defendant’s primary business. A. during the same month. . § 921(a)(21)(D). . United States Code. Nor is there . The phrase “with the principal objective of livelihood and profit” means “that the intent underlying the sale or disposition of firearms is predominately one of obtaining livelihood and pecuniary gain. . .C. 922(a)(1)(A).C. attention. A person is “engaged in the business” of dealing in firearms when he “devotes time. provides in pertinent part that it shall be unlawful for any person “except a .]” 18 U.
2.” 18 U. B. Transfer or Possession of a Machinegun Title 18. is designed to shoot. Nadirashvili further testified that when he first called .S.C. United States Code. automatically more than one shot. 1986). in relevant part. Carter. the evidence amply showed that Nadirashvili and Chvelidze conspired with Solomonyan to commit the second object of the conspiracy charged in Count Three: to transfer or possess a machinegun in violation of 18 U. or can be readily restored to shoot. 2004. on his initial call with Solomonyan on September 11. Discussion 1. 1460).C. As an initial matter.S. 1433. Nadirashvili understood within “a couple of seconds” that Solomonyan was asking him to obtain machineguns. See United States v. A “machinegun” is any weapon which shoots. 26 U. that “[i]t shall be unlawful for any person to transfer or possess a machinegun. § 922(o).2d 78. without manual reloading. by a single function of the trigger.C.S. 81-83 (2d Cir.56 any specific number of firearms purchases or sales that must be specifically proven. Nadirashvili testified at trial that. 801 F. § 5845(b). Section 922(o) provides. (Tr. Nadirashvili and Chvelidze Nadirashvili and Chvelidze’s challenges to the sufficiency of the evidence on Counts Three and Four are without merit. § 922(o)(1).
United States. after about 30 seconds. 2004. both Nadirashvili and Chvelidze took affirmative steps to help Solomonyan obtain machineguns. (Tr. the second object of Count Three — is sufficient by itself to sustain the jury’s verdict with respect to Count Three. on September 11. Indeed. 2004. that Nadirashvili was talking about machineguns. Chvelidze understood. after Solomonyan suggested that Nadirashvili call “Levan” Chvelidze to obtain machineguns. Nadirashvili did so. e. (Tr. The next day. (Tr. 306). 502 U. Moreover.” which included conversations with three different dealers about their ability to get machineguns. Later that day. at 56-57 (holding that multi-object conspiracy verdict must be affirmed so long as evidence is sufficient as to one of the objects).. Chvelidze advised Solomonyan that he would ask the other dealer for “this exact kind” — meaning machineguns. See. 314). The evidence. This evidence of Nadirashvili and Chvelidze’s participation in a conspiracy to transport or possess a machine gun — that is. Griffin v.” (Tr.S. for his part. For example. Chvelidze. 1470). 296-97). agreed to call a particular dealer. 297 (“I don’t wanna say the name”)). (Tr. the recording of this call showed that Chvelidze understood Nadirashvili: Chvelidze referred to machineguns as “the one that when you pull it once it starts. also proved that Nadirashvili and Chvelidze conspired with Solomonyan to engage in the business of dealing in firearms without a license and aided and abetted . whose name he was careful not to mention. including the intercepted telephone conversations.g.57 Chvelidze on September 11. Chvelidze reported back to Solomonyan on “the moves I’ve made so far.
292. as a gun dealer would. 19. showed that they understood Solomonyan was not a lawfully registered firearms dealer. crediting every inference that the jury might have drawn in the Government’s favor. Understanding that this was a business transaction. it is sufficient to sustain the jury’s verdict on the first object of Count Three — conspiracy to participate in unlicensed firearms dealing — and Count Four — aiding and abetting unlicensed firearms dealing. Chvelidze asked Nadirashvili. (Vorobeychik Br. 16.58 Solomonyan in committing that substantive offense. 307. First. 23).” (Tr. 308). 292. Second. (Tr. Nadirashvili and Chvelidze both learned from Solomonyan that he was attempting to acquire the machineguns not for himself but for another person — a person who had paid money up front. That is. Nadirashvili. 21. the use of the code among Solomonyan. Third. there would have been no reason not to speak openly. Otherwise. 297). Nadirashvili and Chvelidze both understood that Solomonyan had multiple possible sources of supply. and Chvelidze. (Tr. In fact. Solomonyan was in business for profit. 298). “Tell me if you want to place an order or something. noncriminal inferences could be drawn from the conversations between Vorobeychik and Solomonyan. there was ample evidence that Vorobeychik conspired with Solomonyan to engage in the . 297). 2. and Chvelidze’s careful avoidance of mentioning the name of another dealer on the telephone (Tr. Vorobeychik Vorobeychik contends that there was insufficient evidence of his intent to support the jury’s verdict on Counts Three and Count Four because reasonable. When this evidence is viewed in the light most favorable to the Government.
in their first call. Solomonyan did not ask Vorobeychik to explain what he meant by this. Solomonyan further explained to Vorobeychik on this call . “‘Artur will call you. Shortly thereafter. When Vorobeychik followed up two weeks later (on September 30. 2004 at 11:41 p.. the cryptic nature of these calls helped establish that Vorobeychik and Solomonyan both understood that Solomonyan’s gun dealing was unlicensed and illegal. Here also. For example. Don’t be afraid of what he’s gonna talk to you about.’” (Tr.m. and told Solomonyan that he had said to McQueen. First. and Vorobeychik did not feel the need to explain. 320). “I’ll just call [McQueen] so that he understands who’s who and what’s what.” (Tr. Solomonyan explicitly used a slang term for guns: Solomonyan said “I only need two pieces. Indeed. Vorobeychik volunteered. Vorobeychik did not ask Solomonyan what he meant by “pieces” — thereby confirming that he understood Solomonyan was talking about guns. on September 12.” (Tr. Each understood that the other knew what he was talking about — guns. 341). Although their conversations included some cryptic language.59 business of dealing in firearms without a license and aided and abetted Solomonyan in committing that substantive offense. 337-38. neither Vorobeychik nor Solomonyan was confused about what the other was talking about. 324). Solomonyan did not ask Vorobeychik to explain. 2004) with Solomonyan to find out if McQueen had obtained guns for him (Tr. 338) (emphasis added). Vorobeychik reported back to Solomonyan that he had spoken to McQueen. the recorded conversations between Vorobeychik and Solomonyan showed that they had a meeting of the minds on the subject of guns.
. 338-39). Indeed.” (Tr. not for the reviewing court. 19). Even if “other reasonable interpretations” of this and other calls “were clearly possible” (Vorobeychik Br. Vorobeychik’s statement to law enforcement agents about this September 30. because “the task of choosing among competing. 2004 call also supports the jury’s finding that he understood. permissible inferences is for the [jury]. or that he would be talking in ‘code. 245 F.” United States v. but he refused to answer when asked what he meant by using the word “it. A rational jury could find that Vorobeychik refused to answer because he knew. at the time of the conduct in question. that fact does not provide a basis for disturbing the jury’s verdict. that “it” meant guns. good ones” to McQueen in a trade. Vorobeychik contends that McQueen’s failure to immediately understand Solomonyan’s code words in the first call between McQueen and Solomonyan “demonstrates conclusively that Vorobeychik did not tell McQueen that Solomonyan would be calling him about guns.60 that he gave “a few pieces.3d at 137. McDermott. at the time of the offense.’” (Vorobeychik Br. Vorobeychik admitted that “they” referred to McQueen. 17). All it would show is that Vorobeychik chose not to tell McQueen what Solomonyan would be talking about. Law enforcement agents asked Vorobeychik what he meant when he asked Solomonyan. 341). Even if this were true. that Solomonyan was dealing in guns. it would not mean that Vorobeychik did not know that Solomonyan would be calling McQueen about guns. “Can they really get it?” In response. in code or otherwise. (Tr. as a dealer would. thereby indicating that he (Solomonyan) had existing an inventory of guns.
“Artur  will call you. . Don’t be afraid of what he’s going to talk to you about. . provided an additional evidence that Vorobeychik understood that Solomonyan was engaging in the business of dealing in firearms.” and that’s it[. . The relevant question is whether Vorobeychik agreed with Solomonyan to help him acquire firearms for dealing. I once had a good empire. In any event. your income — Let’s take me for example. I already know it. Given how little Vorobeychik said to McQueen to prepare him for Solomonyan’s call. four months. We have to build the empire again. 36063). under an arrangement in which they would buy guns directly from “Allah” — Allah McQueen. But this one will provide permanent income. McQueen’s state of mind when he began speaking to Solomonyan is irrelevant. A telephone conversation on October 8. [I]f you have a good turnover in three. Vorobeychik and Solomonyan agreed to share profits from further gun dealing with each other. (Tr. . I never made less than 30. A reasonable jury could make this finding based on the evidence. . As they discussed this arrangement. 361-63). . 2004 (Tr.] (Tr.61 Vorobeychik himself said that he only told McQueen the following to prepare McQueen for Solomonyan’s call: I told him. Vorobeychik stated. . large income. You saw him. On this call. it is not surprising that McQueen did not at first understand Solomonyan’s code. Artur. 324). . . .
United States v. Solomonyan and Spies bought two guns from McQueen. United States v. 89 (2d Cir. 534 F. 350-53. the evidence in those cases did not include the contents of communication between the defendant in question and a co-conspirator showing that the defendant understood the nature of the contraband. 176 F. 69-70 (2d Cir.]”). in assessing the proof at trial. The cases are distinguishable. 2010) and similar cases where this Court held that there was insufficient evidence that a defendant understood that he was involved in a narcotics deal. Torres. at 6769 (collecting and summarizing cases). Although Vorobeychik and Solomonyan did not specify that guns were the subject matter of this proposed forprofit venture. when the evidence is viewed as a whole. 604 F. 2004 call.” (Tr. SA 180-81. 344. 287. Among other things. 185-86.. See e. and it will be fucking great for him. a reasonable jury could find. the Court is obligated to analyze every piece of evidence “not in isolation but in conjunction[.3d at 70 (finding “no proof of any narcotics-related conversation to which [the defendant] was a party”). he’ll get 25 percent from us. See United States v. 362-63). 604 F. see also id. Diaz. “Yeah. (Tr. This is particularly so because only six days before this October 8.62 (Tr. Vorobeychik said. as opposed to a deal that merely involved illegal contraband of some kind. 160 (2d Cir. Torres. that Vorobeychik fully understood this.3d 58. is misplaced. Vorobeychik’s reliance on United States v.3d 153. Lorenzo.3d 52. 18893). 363).g. 2008) (finding “no evidence in the record as to the contents” of a critical . 1999) (stating that. Vorobeychik and Solomonyan further agreed that Vorobeychik would “discuss finances” with McQueen.
(Tr. 2001) (finding no evidence of the defendant’s “knowledge or intent through evidence that the defendant participated in conversations related to the substance of the conspiracy”). is any evidence of the precise contents of the conversations. including one machinegun. 2004) (“Critically absent. Chvelidze. SA 255). and Vorobeychik’s sufficiency challenges to Counts Three and Four. 300 F. The evidence described above overwhelmingly supported the jury’s verdict against Solomonyan and Spies on both counts.7. the evidence included the contents of several incriminating calls between Vorobeychik and Solomonyan. in a September 30. 2004 call. Solomonyan and Spies join Nadirashvili. Accordingly. Rodriguez. United States v. (Tr. 392 F.3d 228. 2004. United States v. they bought eight guns to sell to Davis. 33839). 62 n. United States v. Solomonyan and Spies Without argument. 3. In particular. By contrast. Spies Br. Vorobeychik heard Solomonyan use the slang word “pieces” three times to signify guns.63 conversation between the defendant and another person).”). however. here. In all. Vorobeychik did not ask for clarification. (Solomonyan Br. as opposed to some other kind of contraband. (SA 158-62). As early as July 17. When this and other evidence is viewed . 125 (2d Cir. 287. 239 F.3d 539 (2d Cir. a reasonable jury could find that Vorobeychik understood that Solomonyan was dealing in guns. 23536 (2d Cir. 42).3d 111. Solomonyan and Spies used coded language to discuss their efforts to obtain new and used machineguns to sell to Davis for profit. Friedman. 2002) (finding no evidence of the “substance” or the “participants” of a 43 minute call). Samaria.
” Skilling v. 2896. A. Applicable Law 1. § 2778(b)(1)(A)(ii)(I). 22 U. there was ample evidence to support the convictions of Solomonyan and Spies on Counts Three and Four. Accordingly. or transfer of any foreign defense article or defensive service” to be registered with the United States government. which requires anyone who is “in the business of brokering activities with respect to the manufacture. That test: . To determine whether a statute is unconstitutionally vague.C.64 in the light most favorable to the Government. The express language of the statute and its implementing regulations define the very terms that Kharabadze contends are vague. is unconstitutionally vague as applied to him. the Supreme Court has established a twopart test. Vagueness Challenges “[T]he void-for-vagueness doctrine addresses concerns about (1) fair notice and (2) arbitrary and discriminatory prosecutions. United States. and his efforts to conceal the crime demonstrate that he was well aware of that fact. POINT III The Arms Export Control Act Is Not Unconstitutionally Vague Kharabadze argues that the provision of the Arms Export Control Act. import. 2933 (2010).S. Kharabadze’s constitutional challenge should be rejected. 130 S. Ct. Kharabadze’s conduct fit squarely within the statutory prohibition on unlicensed arms dealing. export. This claim is meritless.
363 F.3d 118. 455 U.S. 506 F.S. Rybicki. vagueness challenge “must be met with some measure of skepticism. ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.. 461 U. 147 (2d Cir. United States v. 2004) (because narcotics analogue statute contains scienter requirement.. 2007). 461 U. 357 (1983). 110 (1972).e. “the interpretation of a statute does not implicate First Amendment rights. that [the] conduct is proscribed. as here.3d 140. Gagliardi. 499 (1982).” Kolender. 408 U. at 358 (internal quotation marks omitted).’” United States v.S.S. To meet these requirements.”). accord United States v.” Grayned v. Lawson. . it is assessed for vagueness only ‘as applied. .65 requires that a penal statute define the criminal offense  with sufficient definiteness that ordinary people can understand what conduct is prohibited and  in a manner that does not encourage arbitrary and discriminatory enforcement.S. 123 (2d Cir. Inc. “[D]ue process does not require ‘impossible standards of clarity. 104. but must provide only “minimal guidelines to govern law enforcement.’” Kolender. 354 F. Where. Flipside. the statute need not define the offense with “mathematical certainty. especially with respect to the adequacy of notice . 352.3d 124. at least with regard to the ‘fair notice’ prong of Kolender. 129 (2d Cir. City of Rockford. In addition.’ i. 489. a criminal statute’s scienter requirement “may mitigate a law’s vagueness. Hoffman Estates.” Village of Hoffman Estates v. Kolender v. Roberts. at 361 (internal quotation marks omitted). 461 U. 2003) (en banc) (quoting United States .
accord. 1995). 511 U. 550 (2d Cir.” Columbia Natural Resources. Tatum. 999 F. 996 F. Ct. Amer.S. United States. Nadi. v. Ltd. 130 S. Inc. 513. 550 (2d Cir. before striking a federal statute as impermissibly vague.g.3d at 1105 (quoting Chapman v. Inc.3d at 878 (challenge to clarity of phrase “parental rights” in International Parental Kidnapping Crime Act fails because Congress made meaning “clear in the legislative history of the Act”). United States v. 1105 (6th Cir. 110 F.6 (1994). as well as the statute’s legislative history. to consider whether the prescription is amenable to . 453. a court relies upon customary tools of statutory interpretation: most notably the language of the statute itself. United States v. 464 (1991)). 1993) (rejecting “as applied” challenge to Major Fraud Act). however. United States. In determining Congress’s intent in the context of a void-for-vagueness challenge. see Skilling. v. “The classification of a federal statute as void for vagueness is a significant matter. 58 F. 698 (2d Cir. 517-19 & n. 1993)). United States v. “‘[E]very reasonable construction must be resorted to..’” Columbia Natural Resources. Tatum.. 1997).g. 996 F. in order to save a statute from [being declared] unconstitutional[l]y [vague]. 1993). 996 F. 878-79 (2d Cir. United States v.66 v.2d 548.S. e. at 2929 (“It has long been our practice. See e. Nadi.2d 692. Posters ‘N’ Things. 110 F. Strauss. That means that “one whose conduct is clearly proscribed” by a law may not challenge the law on the ground of vagueness.2d 548.2d at 550 (deeming common-sense interpretation of “value of the contract” to be “confirmed by the statute’s legislative history”). 58 F. 500 U.3d 1101. Nadi. v. Amer.3d 873.
584 F. Even trained lawyers may find it necessary to consult legal dictionaries. treatises. and judicial opinions before they may say with any certainty what some statutes may compel or forbid. 1149 (2d Cir.2d 1137. The AECA authorizes the President to promulgate regulations for the import and export of defense articles and services. Many statutes will have some inherent vagueness. Herrera. See 22 U.C. § 2778(b). 22 U. Locke.F. § 2778(c). 1978).”). Rose v. authorizes the President to establish the United States Munitions List.S.C. The AECA has a scienter requirement and provides that a willful violation of the statute or its implementing regulations subjects an offender to criminal sanction. See 22 U. 48. exercising the authority delegated to it by the President.S. has promulgated the International Traffic in Arms Regulations. § 2778. 2. 22 C. As the Supreme Court has explained. accord United States v. for [i]n most English words and phrases there lurk uncertainties.S. The Arms Export Control Act As described above. and the Department of State. . the Arms Export Control Act (“AECA”). which includes “defense articles” and “defense services” whose import and export is subject to registration and licensing requirements. 49-50 (1975) (internal quotation marks and citation omitted). 423 U.R.67 a limiting construction. the void-for-vagueness doctrine does not invalidate every statute which a reviewing court believes could have been drafted with greater precision.C.S.
68 §§ 120. which consists of categories of military items that cannot be imported or exported without a license from the Department of State. . Sun.1-130. who engages in the business of brokering activities with respect to the .C. § 2778(b)(1)(A)(ii) and (c). § 2778(b)(1)(A)(ii)(I).17.. . Count Two of the Indictment charges Kharabadze and others with violating (and aiding and abetting a violation) of 22 U. import. Count One of the Indictment charges Kharabadze and others with entering into a conspiracy. .S. Discussion Kharabadze argues “that he could not reasonably have understood that his contemplated conduct was proscribed” (Kharabadze Br. every person . These regulations include the Munitions List.S. These provisions state in part: As prescribed in regulations issued under this section. more specifically. 2002). . 22 U. Kharabadze argues. 278 F.C. or transfer of any foreign defense article. one of the objects of which was to violate the AECA. See generally United States v. B. . because the AECA’s reference to “the business of brokering activities” is “cryptic” and “fatally vague” (id.3d 302. 306 (4th Cir. at 25). shall register with the United States Government agency charged with the administration of this section. that the statute is vague in two ways: the term “brokering activities” would . 26 (internal quotation omitted)). .
who willfully finance. or i m p o r t o f a d e f e n s e a r t i c l e . freight forwarding. irrespective of its origin.” Kharabadze’s argument is meritless in light of the text of the AECA itself and its implementing regulations. § 129.69 not reasonably have encompassed his conduct of providing price information. the AECA applies to individuals. ordinary people can understand the conduct the AECA prohibits. or import or a defense article or defense service. Based on the language of the statute and its implementing regulations. transport. § 2778(b)(1)(A)(ii)(II). or take any other action that facilitates the importation of defense articles in the United States without registering and seeking a license. export. or taking of any other action that facilitates the manufacture. 461 .” 2 2 U . Kharabadze does not challenge as vague the Munitions List itself or the definition in the AECA of “foreign defense articles.F. . 22 C. freight forwarding. Thus. C . the statute defines that term to “include the financing. which defines both the terms “brokering activities” and “engages in the business of. . transportation.S .” With respect to brokering activities. (Kharabadze Br. or taking of any other action that facilitates the manufacture. like Kharabadze. export.2(a). 32-34). and includes the financing.R.2(b) (emphasis added). and the term “engaged in the business of” would not reasonably have encompassed his one-time conduct. on its face. See Kolender. . transportation. The regulations further provide: Brokering activities means acting as a broker as defined in § 129.
however.70 U. 592 F. that was precisely Congress’s intent.2d 1430.S. 1987).3d 192.S.S. However. import. 1999). See United States v.C. Gregg. 2002). rather. 278 F. this Court and other Courts of Appeals courts have repeatedly rejected void-for-vagueness challenges to the AECA.3d 302. 1979). 829 F.] § 2778(b)(1)(A)(I). Kharabadze complains about the statute’s broad sweep. In 1996. or importing” the articles and services on the Munitions List. Hsu. 32).” (Kharabadze Br. at 357-58. 133 (2d Cir. As a result. . see also [22 U. Lee.C. In 1996. United States v. . 364 F. Congress amended the AECA to make clear that it applies to anyone who engages in the business of brokering activities to export. and transfer Munitions List items: The registration and licensing requirements originally extended only to those individuals “engage[d] in the business of manufacturing. 183 F. 1437 (8th Cir. 1031-33 (9th Cir. Sun. 196-98 (4th Cir. Swarovski. United States v.] § 2778(b)(2). United States v. 308-10 (4th Cir. exporting. United States v. who engages in the business of brokering activities with respect to .3d 1029. which expanded the scope of the AECA’s registration and licensing requirements to cover “every person . [22 U. Kharabadze argues that the statute is nonetheless vague because the word “facilitate” in the definition of “brokering activities” “does not clearly signify anything in particular. Congress enacted the Brokering Amendment.2d 131. 2004). But that is not a vagueness challenge.
like Kharabadze. or the taking of any other action to facilitate the import of defense articles. conveyed real-time developments affecting his ability to import those weapons to the United States. § 922(a)(1) (Kharabadze Br. transporting. As described more fully above. importers. and machineguns. Cir. and exporters to include those. export.3d 241. or transfer of” the articles and services on the Munitions List. and gave to Solomonyan a list of weapons that he could obtain and their associated prices — including items on the Munitions List. who broker arms deals. He represented himself to Solomonyan as a connection to arms in Eastern Europe. and aided and abetted. 428 F. he was Kharabadze’s attempt to draw a parallel to 18 U.* More to the point.S. in January 2005. Kharabadze’s actual conduct falls squarely within the conduct prohibited by the AECA. SAMs. whether by financing. Kharabadze knowingly and willfully conspired to participate in. * . Yakou. More than six months later. United States v. the unlicensed brokering of an arms deal involving RPGs.C. because that statute does not contain a brokering clause similar to that in the amended Section 2778. The cases on which Kharabadze relies were decided before the 1996 change to the AECA that expanded its reach beyond manufacturers. Id. 243 (D. § 2778(b)(1)(A)(ii)(I). 2005). 30) is misplaced. freight forwarding. import.71 the manufacture.C.
It’s also true that subsequent to that. rocket-propelled grenades. Kharabadze to provide Mr. for example. Solomonyan to travel to Mr. Kharabadze had discussions as early as April of 2004. regarding the acquisition of serious military weapons. Kharabadze’s apartment at 10:00 in the morning in June 2004. had conversations with weapons suppliers [overseas] in that time period. the prospective purchaser. a price list of military-grade weapons. A few hours later. Solomonyan and Mr. Kharabadze. Solomonyan said yes. including. Kharabadze himself in those conversations established that fact. Then they arranged for Mr. Mr. Kharabadze responded. I think that the jury was surely entitled to conclude that the purpose of that meeting was for Mr. not written but verbally. Mr. the purpose of which can only have been for purposes of mass destruction and that Mr. Solomonyan with a price list of military weapons. do you mean the price list. The words of Mr.72 willing to meet with Davis. Solomonyan provided verbally. and Mr. Solomonyan called up Mr. Kharabadze and asked for information. to which Mr. either directly or indirectly. The most persuasive interpretation of that series of events that was laid before the jury . As the district court explained: [T]he irreducible facts are that Mr.
He typically refused to talk on the phone. Indeed. Plainly. I am not sure that there is any other interpretation of the facts that are in evidence. Kharabadze had knowingly and intentionally decided to assist Mr. Likewise. 651-62). 657) — Kharabadze evidenced his own awareness that what he was doing was prohibited by the lengths to which he went to conceal his involvement. Throughout his involvement in the conspiracy — which unfolded over many months (see. Spies in a conspiracy to acquire.g. which is established by Mr. Kharabadze took action to facilitate the import of a defense article into the United States. Solomonyan and Mr. Kharabadze’s own words on the telephone in April and June of 2004. the district court found that “the court is unable to conclude that someone who is the contact point for arms dealers in Georgia. requiring Solomonyan to meet him in person. Kharabadze A. rather than write it down. Mr. 655). (Kharabadze A.73 was that at this point in time. He also insisted that Solomonyan required Davis to memorize the price list.. e.” (Kharabadze A. transport. so it would not fall into the hands of law enforcement. and possess military weapons. . Kharabadze’s contention that the statute did not reasonably put him on notice that his conduct was criminal is also belied by his own actions. in denying Kharabadze’s request for a minor-role adjustment. can be described as a minor or minimal participant.
Lee. who were charged with the Overseas Arms Trafficking Offenses.S. United States v. Much of the evidence that Nadirashvili complains of would have been admitted against him even in a separate trial on the Domestic Gun . Kharabadze’s constitutional challenge to the AECA should be rejected. Hsu. 72-75). § 1934 (1970).3d at 1032-33 (noting that the AECA scienter requirement “protects the innocent exporter who might accidentally and unknowingly export a proscribed component or part whose military use might not be apparent”). 364 F.2d at 132 (stating that under AECA’s predecessor statute. 278 F. the defendant’s claim of unconstitutional vagueness “comes with little grace from one who was fully cognizant of the wrongfulness of his acts”). numerous courts have emphasized the importance of the explicit scienter provision of the AECA in rejecting vagueness claims. resulted in “prejudicial spillover” because Nadirashvili was charged only with the Domestic Gun Trafficking Offenses. United States v. 183 F. The argument is without merit. 592 F. Spies. (Nadirashvili Br. 22 U. Sun. Nadirashvili contends that his joint trial with Solomonyan. See United States v. Swarovski.’ it cannot be deemed constitutionally vague as applied”) (quoting United States v. POINT IV The District Court Acted Within Its Discretion in Denying Nadirashvili’s Severance Motion Nadirashvili asserts that the District Court abused its discretion in denying his severance motion.3d at 309).74 Indeed.C. In sum.3d at 197 (explaining “that because the AECA permits an arrest only if an individual acts ‘with the requisite criminal intent. and Kharabadze.
. Supp. Solomonyan. are insufficient grounds for separate trials. differing levels of culpability and proof are inevitable in any multi-defendant trial and standing alone. . 357-58 (S.” Id. and (2) the risk prejudicial spillover. The District Court denied the motion.D. have been indicted on both counts. Supp. . 452 F. United States v. 452 F. A.N. and Spies moved for a severance on two grounds: (1) the length and complexity of the trial. 2d 334. 2d at 358. 2d at 358. Chvelidze. “the conspiracies charged in Counts One and Three are not mutually exclusive and both have at their core the alleged activities of Solomonyan and Spies who. The District Court concluded that the defendants are unable to show that a joint trial will prejudice them to a degree that amounts to a miscarriage of justice or to a degree that cannot be addressed through carefully crafted limiting instructions.” Solomonyan. Nadirashvili. and any potential for prejudice was obviated by the Court’s careful instructions to the jury. at 358 (internal quotation marks omitted). With respect to the spillover issue. The District Court’s Denial of a Severance Before trial. although two separate conspiracies were charged in the indictment. The District Court further ruled that. Relevant Facts 1. Solomonyan. the District Court ruled that “[w]hile some risk of prejudice exists. 452 F.75 Trafficking Offenses. 2006).Y. Kharabadze. Supp.
2. Nadirashvili and Kharabadze renewed their motion for severance on “spillover” grounds. The case against each defendant. 93). consider each count of the indictment and each defendant’s involvement in that count separately. on each count. the District Court instructed the jury to consider the evidence against each defendant separately: There are six defendants on trial before you. bear in mind that guilt is personal and individual. Jury Instructions As part of the main jury charge. stands or falls upon the proof or lack of proof against that defendant alone. 2007. (Nadirashvili A. and your verdict as to any defendant on any count should not control your decision as to any other defendant or any other count. as trial approached. In reaching your verdict. 2025. the District Court denied the motion “largely for the same reasons I have set forth in [the previous written] opinion. 2027).” (Nadirashvili A. At a pretrial conference on March 5. see also Tr. Your verdict of guilty or not guilty must be based solely on the evidence about each defendant. as a matter of law. 93-94).76 On March 2. The District Court further instructed: . and you must return a separate verdict on each defendant for each count in which he has been charged. (Tr. You must. 2007.
539 (1993).S. . In addition. at 537. when the District Court described the Indictment and explained the elements of each count.” Zafiro v. 2026. 2090.77 [S]ome of the testimony that you have heard in this case has been admitted only with respect to Counts One and Two . United States. 2058-60. Spies and Kharabadze and only with respect to Counts One and Two. that district courts should only grant a severance under Rule 14 when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants. 2103). 14(a). P. or prevent the jury from making a reliable judgment about guilt or innocence. it stated. (Tr. which Appellants were charged. 2041-43.). 2083. 534. . Let me emphasize that such evidence should be considered only against defendants Solomonyan. R. .” a district court may order separate trials. The Supreme Court has instructed. B.” Fed. sever the defendants’ trials. Crim. (Tr. or “provide any other relief that justice requires. 2097-98. “There is a preference in the federal system for joint trials of defendants who are indicted together. . as to each count. 506 U. Applicable Law Rule 14 of the Federal Rules of Criminal Procedure provides that if the joinder of defendants in an indictment “appears to prejudice a defendant or the government. 2077. however. Such evidence should not be considered at all in determining whether the guilt of any other defendant has been proven beyond a reasonable doubt.” Id.
Turoff. 1993). 502 (2d Cir. 191 (2d Cir.” United States v. joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. Even apart from these tactical considerations. 341 (2d Cir. Borelli. 1970)). 1039 (2d Cir. requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying. convenience.2d 1037.2d 500. that prosecutors bring separate proceedings. and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution’s case beforehand.3d 315. 1988). 1979) (quoting United States v. and avoid[ ] the necessity of having witnesses reiterate testimony in a series of trials. and the prompt trial of the accused.” United States v. . 853 F. 435 F. . . presenting the same evidence again and again. 11 F. “well-recognized is the proposition that joint trials serve the public interest in economy. As this Court has stated. As the Supreme Court has also recognized. Lyles. 593 F.78 see also United States v. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability—advantages which sometimes operate to the defendant’s benefit.2d 182. It would impair both the efficiency and the fairness of the criminal justice system to require . Joint trials serve important purposes: they “conserve[ ] judicial resources. Rosa. alleviate[ ] the burdens on citizens serving as jurors.
200.2d 881.” United States v. 333 F. 506 U. aff’d.2d 1141. 481 U. 1149 (2d Cir. The decision whether to sever a defendant’s case from those of his or her co-defendants under Rule 14 is “confided to the sound discretion of the trial court. Hernandez. A defendant challenging the denial of a severance motion faces an “extremely difficult burden.S. less drastic measures — such as limiting instructions — often suffice as an alternative to granting a Rule 14 severance motion. Marsh.3d 56. 85 F. 887 F. Casamento. at 540. 885 (7th Cir. 506 U.3d at 114 (citations omitted). or that he would have had a better chance for acquittal at a separate trial. United States v. 534 (1993).3d 1023. 1995). Zafiro.3d 56. United States v. even where there is some risk of prejudice from a joint trial.S. Yousef. 1996). 210 (1987). United States v. 1991).S. For this reason. Romero. see also United States v. the defendant must show that he suffered prejudice so substantial that a “miscarriage of justice” occurred and that the denial . at 539-41. Zafiro. and the trial court’s exercise of that discretion is “virtually unreviewable” on appeal. 333 F. The presumption in favor of joint trials is particularly strong where the defendants to be jointly tried are alleged to have been members of the same conspiracy. Instead. Zafiro v. United States v. 945 F. Feyrer. the Supreme Court has instructed that. 2003) (internal quotation marks omitted). United States. 327 F. 1989) (quotations and citations omitted). 150 (2d Cir. 1029-30 (2d Cir. 114 (2d Cir. It is not sufficient for a defendant to show that he suffered some prejudice.S. Feyrer. 54 F. 506 U.” United States v.79 Richardson v. 60 (2d Cir.3d 110. 2003).
702 F. or that the trial involved a large volume of evidence and multiple defendants. The mere fact that a case is complex.2d 993. see also United States v. United States v. Supp. 598 (2d Cir. Gallo. Locascio.2d at 1149-51 (severance not mandated in a 17-month trial involving 21 defendants. Scarpa. 1990). Instead.D. at 1151.2d 351. 1993). standing alone.3d at 150. 511 F. 6 F. 1987) (listing factors district courts consider when deciding whether to order severance).” United States v. 736. Carson. Courts generally do not assume that the jury was unable to distinguish between the defendants or the counts charged. 1983) (fact that defendant played a less prominent role in the conspiracy than many of his co-conspirators was not a sufficient ground for a separate trial).Y. 913 F. Casamento. 887 F. 327 F.3d 924. Aloi. see United States v. taken alone. United States v. 1015 (2d Cir. United States v. thousands of exhibits.” Id. 366-367 (2d Cir. Yousef. also do not provide sufficient grounds for challenging the district court’s refusal to grant a severance. “Barring contrary evidence. United States v. 1975) (individual trials . and more than 275 witnesses).2d 585. Differing levels of culpability and quantity of proof among defendants. 947 (2d Cir.2d at 1149-50. 887 F. Casamento. [the Court] must presume that juries follow the instructions given them by the trial judge. 668 F. this Court “has repeatedly recognized that joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible. provides an insufficient basis for challenging the district court’s refusal to grant a severance.N.80 of his motion constituted an abuse of the district court’s discretion. 749 (E.
the government is “entitled to show the entire range of evidence of the conspiracy against each [defendant]”). 11 F. 1999) (rejecting argument of substantial spillover prejudice case where evidence would be admitted against each defendant to show existence of joint enterprise). 152 F.2d at 1153 (although defendants’ role was “comparatively minor. .3d 88. United States v. .” they did not suffer “substantial spillover prejudice” where “much of the evidence the government presented at the joint trial regarding the activities of alleged co-conspirators would have been admissible in the single-defendant trials”).3d at 341. .2d 1294. at 749. 668 F.81 are not warranted merely because of “differences in degree of guilt and possibly degree of notoriety of defendants” and the “likelihood that proof admitted as to one or more defendants will be harmful to others”). Where “[e]vidence at the joint trial of alleged coconspirators . Supp. 1987) (where there is sufficient evidence to show the existence of a conspiracy. see also United States v. 115 (2d Cir. see also United States v. “Spillover prejudice” of the sort warranting severance can occur only “when proof inadmissible against a defendant becomes a part of his trial solely due to the presence of co-defendants as to whom its admission is proper. Gallo.3d 52. Salameh. 103 (2d Cir. Nersesian. would have been admissible at a separate trial of the moving defendant.” United States v. 1998).” such evidence is “neither spillover nor prejudicial” and a severance is not warranted. 887 F. 1304 (2d Cir. 824 F. Rosa. Casamento. Diaz. 176 F.
United States v. 899 F. with Solomonyan and Spies at the hub of both.Y 1994) (“Once such proof is shown to be . 1990) (finding no prejudicial spillover where evidence regarding the furtherance of the conspiracy would have been admitted at a severed trial). 262 (S. United States v. 854 F. 1987). 1990). Bari. Spies. and Davis. but nevertheless fully implicated conspirator” because the evidence would have been admissible at a severed trial).2d 1294.N.2d 1169. 1347 (2d Cir.2d at 1178 (denying motion to sever even “the least active. many of the acts and statements of Solomonyan and Spies relating to the Overseas Arms Trafficking Offenses would have been admissible at a separate trial of Nadirashvili. 1178 (2d Cir. 824 F. 1015 (2d Cir. United States v. See United States v. The fact that Nadirashvili. constitute sufficient basis for a severance. standing alone. Chvelidze and Vorobeychik had been tried separately.2d 993. 1304 (2d Cir. 1984). and Vorobeychik had lower levels of culpability and a lesser quantity of proof compared to Solomonyan and Spies does not.D. Scarpa. Chvelidze. 913 F. Rahman. Supp. all the conduct of their co-conspirators Solomonyan and Spies in furtherance of the Domestic Gun Trafficking Offenses would have been admissible against them. Discussion The District Court acted well within its discretion in denying the severance motions. Villegas.82 C. 254. because Davis was the purported buyer of the overseas arms as well as the domestic guns. see also United States v. Chvelidze. Even if Nadirashvili. 750 F. The Appellants were indicted together and charged in overlapping conspiracies. and Vorobeychik to explain the background of the relationship between Solomonyan. Nersesian. Bari. In addition.2d 1324. 750 F.
See.”). the Government’s confidential source. 39-41). the District Court’s “virtually unreviewable” decision to deny a severance provides no basis for disturbing the jury’s verdict. Moreover. POINT V The District Court Properly Found that No Due Process Violation Occurred As a Result of Davis’s Destruction of a Small Number of Recordings of His Conversations with an FBI Agent Spies contends that his due process rights were violated when Davis. Spies contends that he was prejudiced because the destroyed recordings contained impeachment material relating to (1) the possibility that Davis would receive an . in this case. (Spies Br. destroyed a small number of recordings of conversations between himself and a law enforcement agent. Yousef. In particular. e.83 admissible.3d at 1029-30 (rejecting a claim of prejudicial spillover where district court instructed the jury that “it was required to consider the evidence against each defendant individually for each count”).. 85 F. any possible risk of spillover prejudice was reduced by the District Court’s careful instructions concerning individual guilt and its clear description of who was charged in what counts. there is no potential prejudice to be avoided by severing the charges [or. United States v.3d at 150. defendants] to which that proof relates.g. See Hernandez. 327 F. Spies contends that the charges should be dismissed or he should receive a new trial. In sum. As a result.
(Spies Br. Spies moved for a hearing to determine whether the Indictment should therefore be dismissed on due process grounds. (SA 40). A.84 award for his work as a confidential source. 39-40). the Government notified the Appellants that it had recently learned that Davis had destroyed a small number of tape recordings of conversations that he had recorded between himself and one of the FBI agents who investigated this matter. at trial. Relevant Facts 1. On June 18. 2007. 51-53). FBI Special Agent Cliff Carruth. Davis was the only witness to testify at the hearing. (Spies A. and (3) what happened to the recordings. The argument should be rejected. after a hearing at which Davis testified. The Reconstruction Hearing On February 27. Moreover. the District Court held a hearing to determine (1) whether in fact Davis recorded conversations between himself and law enforcement agents. 51). Spies and the other Appellants had a full opportunity to cross examine law enforcement agents about the destruction of the recordings and the potential issues raised by Davis’s actions. The District Court correctly found. what was on the recordings. that the destruction of the recordings was not chargeable to the Government because Davis destroyed them contrary to instructions from the Government. 2007. 2007. (Spies A. (2) if so. On or about May 18. and (2) the likelihood that Davis would have to testify at trial. He .
when he did so. Davis testified that. 52. Davis testified. 86). 54). when he assisted the Government in the investigation of this case in 2004 and 2005. on his own initiative. (SA 70. Davis further testified that the subject matter of the recorded conversations included (1) Agent Carruth’s statements to Davis concerning the likelihood that Davis would have to appear in court (SA 43.85 testified that. (SA 41. 6768) and told Agent Pisano that he did so later. and that he recorded them before the Appellants were arrested in March 2005. (SA 44-45). Davis further testified that he recorded five or fewer conversations with Carruth. 80). he informed Special Agent Mario Pisano that he had made the recordings. 55). Instead. certain telephone conversations between himself and Special Agent Carruth without Special Agent Carruth’s knowledge. (SA 69). (SA 47. . 66. (SA 47. 62. eventually. (2) Davis’s request that Agent Carruth introduce an undercover agent into the investigation to replace Davis (SA 43). (SA 42. he destroyed the only copy of the recordings (SA 46. Davis further testified that he did not destroy any recordings of his conversations with the Appellants. (SA 56). Agent Pisano instructed Davis to give the recordings to the FBI. 48. and (3) discussion about the possibility of a reward for Davis’s assistance in the investigation. he recorded. 65). 59. Davis further testified that. Davis testified that he placed the recordings of these conversations with Carruth in a cupboard in his motor home (SA 55). 95-96). 48. and that he kept them recordings separate from the recordings that he made of his conversations with the Appellants. Davis did not recall the subject matter of any other recorded conversations with Agent Carruth. (SA 46).
. is clearly missing here. The District Court also stated: [T]he Court’s ruling on the due process motion. but it’s not. Davis. of course. (SA 113-114). is without prejudice to the defendants to renew if after the testimony of the agents [at trial] the parties believe that there is a new basis for the motion. that the loss of any evidence be chargeable to the government. And the issue of what conversations the agents had with Mr. After Davis testified and was cross-examined by four defense counsel. 66).86 Davis testified that no law enforcement agent told him to destroy the recordings. the Court found: [T]he evidence introduced at the hearing is more than sufficient to establish that one of the necessary prongs of the due process argument raised by the defendants. is going to deny the motion with respect to the alleged due process violation on the grounds that there is no evidence proffered of government complicity in the destruction of the tapes. therefore. appropriate for examination at the reconstruction hearing. it seems to me. may well be fair game during the trial. Specifically. The Court. as [the prosecutor] points out. (SA 48. the District Court denied Spies’ motion.
Two psychologists who had examined Davis testified. (Tr. Davis’s Availability To Testify at Trial On March 5. the District Court selected a jury for trial in this matter. the Court authorized Spies to issue a subpoena for Davis’s trial testimony. with the consent of the Government and the Appellants. Neither the Appellants nor the Government called Davis to testify at trial. On or about the evening of March 5. and ATF Special Agent Ken Keener — concerning Davis’s destruction of the recordings and his renumeration and expectation of a reward. At the end of the hearing. 137).87 (SA 116). the Court held a hearing on the issue of whether Davis was available to testify. Thereafter. On March 8. 2. On June 5. the Government made Davis available so that the Appellants could call him as a witness at trial in June and July 2007. (SA 11). the Appellants extensively cross examined three law enforcement agents — FBI Special Agents Mario Pisano and Cliff Carruth. 2007. a. 2007. 3. (SA 25-26). 2007. Special Agent . the Court declared a mistrial. the Government learned that Davis had been hospitalized after an apparent suicide attempt and notified the District Court and the Appellants. Trial Testimony At trial. 2007. (SA 34). Testimony Concerning the Destroyed Recordings Special Agents Carruth and Pisano testified about Davis’s destruction of the recordings.
(Tr. (Tr. During Special Agent Pisano’s testimony. Davis. 583. The Appellants also cross-examined Special Agent Keener on this issue. “Did it come to your attention at one point Kelly Davis did in fact destroy tape-recorded evidence in this case?” (Tr. in 2006. 139). destroyed a certain number of tapes he made of conversations with one or possibly two FBI agents. (Tr. 776-77). Mr. 777). 580). and that is the evidence before you.88 Carruth testified that he never gave permission to Davis to record their conversations. Special Agent Pisano testified that. 578. 974). 134). 578). Pisano later learned Davis destroyed the recordings by burning them. the only evidence before you is evidence that the confidential informant. Pisano further testified that he instructed Davis to give him the recordings so that they could be given to the federal prosecutor. (Tr. the Court instructed the jury as follows: . Pisano further testified that it was “unusual” for a confidential source to record conversations with a law enforcement agent. Keener testified that he did not know that Davis had destroyed any recordings. After one defense counsel asked Special Agent Keener. (Tr. and that is the only evidence before you. Davis informed him that he had recorded approximately three or four conversations with Carruth and possibly Keener. (Tr. the jury was instructed as follows: Ladies and Gentlemen. (Tr. and that Davis did not tell him that he was doing so. 573-76).
833 (2d Cir. I am going to instruct the jury that there is no evidence in the case that any of the consensual recordings between Mr. 870 F. 147-50). 879. 467 U. (Tr. see also Buie v.000 in total by the Government during the investigation for expenses and services. First. 11-12 . Trombetta. 566. Carruth and Keener testified that Davis was paid approximately $65. b. B.’” United States v. and that he (Carruth) told Davis that he could not promise any amounts. 479. Rastelli. Carruth testified that Davis asked for an award up to $100. 132-33. Sullivan. three elements must be proven. 489 (1984)). 1989) (quoting California v.89 Before we continue.2d 10. 878. Special Agents Pisano. (Tr. Applicable Law To establish a due process violation based on lost evidence. and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Special Agents Carruth and Keener testified that they discussed with Davis the possibility that Davis would receive an award at the end of the case. 923 F. (Tr. Testimony Concerning Renumeration and Reward All three agents testified concerning Davis’s renumeration and expectation of a reward.S. 979-80). Davis and any of the defendants in this case were destroyed.000. the evidence must be “material” and “exculpatory” such that the evidence “‘possess[ed] an exculpatory value that was apparent before the evidence was destroyed. 142).2d 822. (Tr. 139).
458 U. 872 (1982). the acts complained of must be of such quality as necessarily prevents a fair trial. 865 F. Rahman. The Court ruled that the Government was not culpable for the loss of the evidence because “the tapes in question were not recorded at the Government’s request or instruction” and because there was “no indication that Government agents made any request or instruction to destroy any of the tapes.2d at 12) (internal quotation marks omitted) such that the loss of the evidence is “‘chargeable to the State. 1988)). the destruction was “not chargeable to the Government” and therefore did not deny the defendants a fair trial.” Rahman. 923 F. 858.. the defendant must establish “bad faith on the part of the State” (Buie v. 189 F.’” United States v. United States v. 139 (2d Cir.2d 29. Kuhlmann.3d at 140. Third.3d at 139-40. Rahman. 189 F. and later destroyed some of these recordings. where an FBI confidential informant made unauthorized tape recordings on his own of conversations between himself and various defendants. The Court also found that “the Government recovered all of the tapes that [the confidential informant] made under formal FBI supervision during the last weeks of the investigation” and that there was “no reason to believe any lost tapes would have been exculpatory.90 (2d Cir. 923 F. Valenzuela-Bernal. 1990). This Court held in United States v. 870 F.” Id.S. Rahman that. Second.2d at 833-34 (holding that loss of three allegedly exculpatory tape recorded conversations of government witness did not . 1999) (quoting Colon v. see also Rastelli. Sullivan. the misconduct must demonstrate “‘that the absence of [fundamental] fairness infected the trial. 30 (2d Cir.2d at 12 (alteration in original) (quoting United States v.’” Biue. 189 F.3d 88.
The third topic — the possibility of a reward — constituted impeachment material as to Davis if he testified. (SA 43-45. (2) Davis’s request to be replaced in the investigation by an undercover agent.2d 970. As an initial matter. United States v.2d at 833. 1993) (holding that loss of recordings of six conversations did not constitute due process violation). The destroyed recordings concerned three topics: (1) the FBI’s statements to Davis concerning whether he would have to testify.91 constitute due process violation). 870 F. Moreover.3d at 140 (“We also agree with Judge Mukasey that there is no reason to believe any lost tapes . but he did not testify. the destroyed recordings did not constitute “evidence” with “an exculpatory value that was apparent before the evidence was destroyed. C. in which the Court found there was no due process violation even though the destroyed recordings were between the confidential informant and members of the conspiracy. applies. because the Appellants could not meet any of the three requirements to establish a violation. nothing on the destroyed recordings was “exculpatory” under the circumstances of this case. Discussion The District Court properly denied the due process motion. 974-76 (2d Cir. the holding of Rahman. 994 F. Because nothing on the destroyed recordings was exculpatory. the recordings in question were not “evidence”. First. 55). they only included inadmissible hearsay statements of Davis and Special Agent Carruth. 189 F.” Rastelli. The first two topics were not exculpatory in any respect. Bakhtiar. See Rahman. and (3) Davis’s discussions with the FBI concerning a possible reward.
” Rahman. The FBI did not instruct Davis to make the recordings. and when Agent Pisano found out about them. Spies cannot satisfy the first prong of this due process test because the destroyed recordings were not “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. With regard to the second prong of this three-part test. 777). there are no circumstances under which the destruction of recordings can be “chargeable to the Government.92 would have been exculpatory. Here. Here that holding applies with even greater force because Davis destroyed recordings of his conversations with an agent.3d at 140.”). (SA 113-14).” United States v. Rastelli. cross-examine three law enforcement agents at trial about their conversations with Davis. as in Rahman. This finding was not clearly erroneous. Indeed. 578. 583. and did. he instructed Davis to hand them over. As the District Court found. Accordingly. Davis made the recordings and destroyed them on his own initiative.” Rahman. Spies’s argument fails because here. not with the Appellants.3d at 140. as in Rahman. 870 F. 189 F. 189 F.” and “[t]here is no indication that Government agents made any request or instruction to destroy any of the tapes. (Tr.2d at 833 (internal quotation marks and citation omitted). In addition. the Appellants had the opportunity to. including their conversations concerning a possible reward. the Government’s instructions to Davis were exactly the opposite — to preserve the recordings and provide them to the Govern- . “The tapes in question were not recorded at the Government’s request or instruction.
923 F. the missing-evidence claim must fail.” Rahman. As for the third prong of the test. 2007 hearing and at trial proved that “the Government recovered all of the tapes that [Davis] made under formal FBI supervision” during this investigation. Moreover. the possibility of a reward.” Biue. . put before the jury the fact that Davis had destroyed the recordings.” See United States v.3d at 140. they could have called Davis to testify.2d at 833 (“[T]he record is barren of proof that the government lost the evidence in bad faith.93 ment. 994 F.”). Had the Appellants wanted the jury to hear more about these topics.2d at 976 (holding that loss of six recordings did not constitute due process violation) (internal quotation marks omitted). among other things. as well as evidence of Davis’s conversations with the agents about. the destruction of the recordings did not create an “absence of [fundamental] fairness” that “infected the trial. 870 F. None of this had any “bearing upon critical issues in the case and the strength of the government’s untainted proof. and did. Bakhtiar.” and it was not “of such quality as necessarily prevents a fair trial. 189 F. Because none of the three elements of this due process test have been satisfied — and all three must be satisfied for the Appellants to prevail on this issue — the District Court properly denied the motion. See Rastelli. On this ground alone. The Appellants were able to. testimony at the June 5. the District Court’s denial of the due process motion should be affirmed. On this basis alone.2d at 12 (alteration in original).
2004. Kharabadze’s counsel elicited precisely the testimony that he was looking for — that the Government had no telephone toll record showing an international call from Kharabadze to Eastern Europe prior to April 23. Kharabadze argues that the District Court should have declared a mistrial because of the Government’s belated production of telephone records that. 252). Kharabadze was in no way prejudiced by the government’s belated production. 2004. he says.” including the fact that the efforts to obtain arms “has been temporarily put on hold” for an uncertain period. Kharabadze attributed the problem to “the peacekeeping Kantemirovskaya Division” and noted that . Kharabadze further informed Solomonyan that the reason for the delay was that “the Russian side” was “closing the borders” and “clearing minefields in those parts. Accordingly. The District Court properly denied Kharabadze’s motion. would have proved that he did not make international calls to broker arms deals. (Tr. Kharabadze advised Solomonyan that Kharabadze “found out a few things. Specifically.94 POINT VI The District Court Properly Denied Kharabadze’s Motion for a Mistrial Based on the Production of Telephone Records In a supplemental pro se brief. on April 23. Kharabadze advised Solomonyan by telephone that his efforts to obtain certain weapons were being delayed by Russian military exercises occurring in the area where the weapons were being stored. Relevant Facts As described above. 252).” (Tr. A.
2004. Prior to trial. from that telephone of Mr. 253). In view of this critical telephone call.” meaning. At trial.95 “there’s no making a deal with them. these particular Russian troops could not be bribed in furtherance of obtaining weapons. Kharabadze had no contact with arms dealers in Eastern Europe. as Kharabadze’s statements to Solomonyan during the call indicate. Kharabadze’s counsel asserted that it was “essential to [their] defense that Mr. When the Special Agent Pisano testified. * * * . Kharabadze? A: I don’t remember the records. (Tr. 2004. I know there were phone cards being used. he confirmed. the dates of the records. just as Kharabadze had hoped. 862). do you have any documents in your possession or does the FBI have any documents in its possession or the United States Attorney’s Office have any documents in their possession indicating any phone calls made to Europe prior to April 23. between a certain telephone of Kharabadze’s and phones in Eastern Europe: Q: As you sit on the stand now.” (Tr. defense counsel requested a great deal of information about any communications between the defendants and sources in Europe. that the FBI had no toll records showing any calls before April 23. 865). defense counsel questioned whether there were any toll records showing that Kharabadze had spoken to Eastern European suppliers. (Tr.
655. 2004 involving your client. (Tr. 660). * Q. Special Agent Pisano continued: Q: You were also asked questions by [the Government] about the phone calls that were allegedly made prior to April 23. 2004. * * Yes. As you sit on the stand now. do you have any record or document which shows any phone calls made to eastern Europe prior to April 23. we did. Kharabadze prior to April 23. Q. A. involving my client? A. 2004? A. correct. Did you try to seek calls prior to April 23. Q. Did you subpoena those records? We did. I don’t recall. 2004? A: To my recollection. are you aware of any documents in your possession or the possession of the government dealing with any phone records of Mr. Under questioning. I don’t think so. 2004 from the phone located in the home of Ioseb Kharabadze and Nicholas Nadirashvili? .96 Q: As you sit on the stand now. There were no calls before April 23. yes.
do you have any documentation whatsoever of any phone call made from a telephone instrument located in the home of Mr. You don’t have that conversation? . 817). Q. Q. 812. Q. 2004. I don’t know that he used a telephone card. We don’t have that conversation. No. the defense asked: Q. no. Kharabadze’s telephone located on West 87th Street to any individual in Georgia or eastern Europe involving weaponry? A.97 A. 2004? A. . No. The question is. (Tr. Q. Summing up. Do you have any evidence whatsoever as you sit on the stand now that my client ever owned a cell phone? A. no. Nadirashvili prior to April 23. As you sit on the stand now. Do you have any evidence as you sit on the stand now that my client ever used a telephone card? A. We don’t have phones showing the typical 011 telephone number to dial overseas. . Prior to April 23. . I don’t. do you have any proof whatsoever of any phone call emanating from Mr. Kharabadze and Mr.
that the “record states. that material was produced to the defense. 865. . I don’t see any We don’t have such a conversation. 865). or. as Mr. Having established on cross-examination of Agent Pisano the absence of any documentary evidence of such calls. the Government discovered that the FBI had received documents pertaining to Kharabadze’s telephone records from prior to April 2004 that had not been previously turned over to the defense. the Court “accept[ed] the government’s representation that the late production of the [pen] registers was an oversight and not the result of any intentional bad faith. (Tr. (Tr. among other things. there were no international calls before April 23. . The Government opposed the motion. Greenfield made this point repeatedly in cross-examination and the government concedes. noting. 867-86). 867). . after April 23. . stated on cross-examination that the government has no documentary proof of telephone calls from the subject phone to anyone in Eastern Europe relating to weapons before or. . curative instructions. 820). (Tr. And that’s what those documents show. for that matter. (Tr.” (Tr. 2004. 867). . Kharabadze’s counsel nonetheless sought a mistrial.” (Tr. in the alternative. 1360). Once discovered. In the course of the trial. The Court further found: Agent Pisano .98 A. As an initial matter. The District Court denied Kharabadze’s application for a mistrial.
prior to April 23. [or] tangible objects” in the Government’s possession.” Fed. upon request.99 real prejudice to defendants from the late production of the pre-April 23 pen registers. P. granting a continuance. Thus.” Fed. photographs. R. 16(a)(1)(E)(i). Indeed. “to inspect and to copy or photograph” any “books. at the time of Mr. as I said. data. documents. Crim. . (Tr. 1360-61). Applicable Law Rule 16 of the Federal Rules of Criminal Procedure requires the Government to permit the defense. Greenfield’s recross-examination of Agent Pisano. 16(d)(2). B. or “any other order that is just under the circumstances. prohibiting the introduction of the undisclosed evidence. Rule 16 provides a number of possible remedies for a party’s failure to comply with its Rule 16 obligations. Crim. that are “material to preparing the defense. R. he had possession of these pen registers and established quite clearly through the cross that the government did not have any documentary evidence of weapons discussions on the subject telephone. custody or control. papers. P. the defendants have established precisely what they sought to establish through the direct testimony of the government’s witness. including ordering the production of the materials in question.
see United States v. Giraldo.2d 1175. the “essential” point . a continuance is the preferred remedy. “because it gives the defense time to alleviate any prejudice it may have suffered from the late disclosure. 1993) (court examines. 1985). 69 (D.2d 1307. inter alia. Matthews. C. 1994). 1998) (citing United States v. 1994). Stevens. 1987) (“a court may allow previously undisclosed tapes to be introduced after a delay of a few days to permit counsel in the interim to inspect them and fashion a challenge to them”). “the reason for its nonproduction”). As Kharabadze’s counsel made clear in his application for a mistrial. Discussion The District Court correctly denied Kharabadze’s motion for a mistrial because there was absolutely no prejudice flowing from the Government late disclosure of the telephone records.3d 785. Moreover. Thai. 20 F.” Id.100 As this Court has noted. Marshall. 804 (2d Cir. 553 (2d Cir. 132 F. “The district court’s admission of evidence following a violation of Rule 16(a) is not an abuse of discretion .2d 205. See United States v. 29 F. 768 F. 212 (2d Cir. see United States v. 822 F. Cir. 548.3d 63. . .” United States v. the preclusion of evidence is rarely an appropriate sanction for a discovery delay. absent bad faith. unless the violation caused the defendant substantial prejudice. This is particularly so where the Government’s discovery failure was the result of inadvertence. Euceda-Hernandez. United States v.C.. 1312 (11th Cir.3d 538. “[t]he trial court has broad discretion to fashion a remedy for the government’s violation” of its Rule 16 obligations. Rather. 985 F. 1181 (2d Cir.
865). “a defendant must show: (1) the Government. they would have proved to the jury that there were no phone calls made to Eastern Europe other than the ones to the relatives of the head of household.101 was the defense’s contention “that Mr. 140 (2d Cir. To demonstrate a Brady violation.* To the extent that Kharabadze’s brief can be construed to raise a Brady claim. Kharabadze’s telephone located on West 87th Street to any individual in Georgia or [E]astern Europe involving weaponry. Kharabadze was able to make the very point that the allegedly improperly withheld records would have demonstrated. as discussed above. Kharabadze cannot show that the Government “suppressed” evidence. (2) the evidence at issue is favorable to the defendant. but three separate times. (See Kharabadze pro se Brief at 3 (“If defense would have possessed the subpoenaed phone records.3d 132. suppressed evidence. Indeed. Kharabadze had no contact with arms dealers in eastern Europe” prior to April 2004. 2001). Besides being unable to demonstrate prejudice. either willfully or inadvertently.”)). as well. culminating in Agent Pisano conceding that he did not “have any proof whatsoever of any phone call emanating from Mr. But that was precisely the testimony that Kharabadze’s counsel elicited from Special Agent Pisano. 820). Thus. and (3) the failure to disclose this evidence resulted in prejudice. (Tr. 267 F. defense counsel elicited the “essential” testimony from Agent Pisano not once.” (Tr. as the material was ultimately made available to the defense in time to be used * .” In re United States (Coppa). it should be rejected for an additional reason.
(Nadirashvili at trial. Nadirashvili contends that evidence of the inflections. tone. See United States v. . (Nadirashvili Br. See id. mistrial only appropriate on showing of substantial prejudice).102 Because Kharabadze cannot demonstrate the substantial prejudice.2d 1175. and pace of conversation on the foreign language recordings would have been helpful to his defense. POINT VII The District Court Acted Within Its Discretion in Declining To Allow Foreign Language Recordings To Be Played During Trial Nadirashvili contends that he was denied a fair trial because the District Court denied a request to play for the jury certain foreign-language recordings that had been admitted into evidence. Nadirashvili contends that he should have been permitted to play certain recordings to (1) demonstrate the “surprise” reflected in the voices of Nadirashvili and Chvelidze when Solomonyan asked them to find machineguns. the District Court acted well within its discretion in denying the mistrial motion. 1993) (where failure to produce Rule 16 material is inadvertent. Stevens. (2) demonstrate Nadirashvili and Chvelidze’s “inability to quickly comprehend ‘coded’ requests for guns”. 30).”). at 142 (“Brady material must be disclosed in time for its effective use at trial. and (3) counteract the prosecutor’s ability “to graft his own inflections onto the statements” and “accelerate the pace of the conversation” when translations were read to the jury. 1181 (2d Cir. In particular. 985 F.
2004. the District Court did not abuse its discretion in declining to allow the defense to play foreign language recordings at trial. as a general matter. In contrast. A. just after Solomonyan asked Nadirashvili to help him obtain machineguns and suggested that he call “Levan. such as those involving Spies and Davis. 175. 291. Russian. Translations Offered at Trial At trial. Nadirashvili referred to machineguns as “cars” with . Accordingly. Chvelidze focused on a particular translation — Government Exhibit 223T — a translation of Nadirashvili’s call to Chvelidze on September 11. On this call to Chvelidze. Once the translations were admitted into evidence. Nadirashvili did not ask to play the recordings at trial.103 Br. As part of his defense case. and Georgian. 210). 294). English translations of foreign-language telephone conversations between and among the Appellants were received in evidence through the testimony of translators who had prepared the translations from the original languages — Armenian. Nadirashvili’s argument fails. (Tr. First. the points that Nadirashvili purportedly wanted to make through the playing of the recordings were made through other means. Relevant Facts 1. Second. 30-31). when the Government presented English-language recordings to the jury. and he has therefore forfeited this claim. 198. it played them aloud for the jury while the jury followed along with transcripts that had been prepared by the Government.” (Tr. the Government read them into the record during the testimony of various law enforcement witnesses.
the short run ones. . The small ones. At the beginning of the call. . you know the ones they sell in Israel. . CHVELIDZE: There are a lot of cars with automatic transmission. 295). cuties. . CHVELIDZE: cars? Are you talking about N. The conversation continued: N. 296). The relevant passage of the call is as follows. They want — what is — cars with automatic transmission.” One of the points that Chvelidze argued below with respect to this call — and that Nadirashvili makes on appeal — is that Chvelidze did not immediately understand the code when Nadirashvili used it. bro?” (Tr. . “Which short ones. and therefore that Chvelidze (and Nadirashvili) did not have the requisite intent. The short ones. NADIRASHVILI: The ones with the automatic transmission. NADIRASHVILI: Yeah. Nadirashvili said to Chvelidze. . they need .104 “automatic transmissions. “I have a close friend — well. right?” (Tr. CHVELIDZE: it. I have no idea which one is N. try to guess what I am telling you. NADIRASHVILI: Do you know which cars I’m telling you about? With the automatic transmission. five of them. you know. Chvelidze replied.
CHVELIDZE: have? On. The black ones. the short ones. NADIRASHVILI: matic.105 N. CHVELIDZE: Wow. they have money. . Do you understand what I’m talking about? CHVELIDZE: Aren’t you talking about cars. CHVELIDZE: Oh. we have said. N. CHVELIDZE: The one that when you pull it once it starts — N. NADIRASHVILI: Try to guess what I’m talking about? Fuck it. NADIRASHVILI: Y es. . . yeah? N. NADIRASHVILI: Is there a kind of dealer so that we can get it? CHVELIDZE: You know this on . are you talking about something else? N. They want it now. NADIRASHVILI: Come on — cars — with the automatic transmission. but auto- N. what’s his name? I don’t wanna say the name. the one that I used to Y eah. NADIRASHVILI: Yeah. T hey have money and they need five of them. That’s the thing.
1603). . Chvelidze requested to offer a competing translation to this and other Government translations. The expert testified that when Chvelidze uttered the Georgian word “va” — which the Government translated as “[w]ow” — Chvelidze’s “tone of voice expressed surprise. (Tr. 296-97). . 1583). Chvelidze called an expert witness who testified on this point. Chvelidze complained that.106 (Tr. and it did not express any enthusiasm. 1470). he testified that it took about 30 seconds for Chvelidze to understand that Nadirashvili was talking about guns and not cars. Specifically. (Tr. 1583). when the prosecutor read the portion of Government Exhibit 223T that is set forth above.” (Tr. The District Court denied Chvelidze’s request to play the recordings. 1603). (Tr. . Given . When Nadirashvili testified about this passage in his defense. Part of Chvelidze’s basis for requesting to play this call and others was so that the jury could hear the “inflections and pace of speech” in the original recording.” (Tr. (Tr. the prosecutor read a key word uttered by Chvelidze — “Wow” — “with an inflection that we believe is wrong and communicated to the jury something we believe is incorrect. and to play certain foreign language recordings for the jury. (Tr. not the tapes. 1582). 2. ruling as follows: It’s the translations that are the evidence here. I don’t believe it’s going to help the jury at all or the Court to listen to foreign language tapes. 1580-81). Chvelidze’s Expert Witness As part of his defense case.
the word “va” should have been translated not as “[w]ow” but as “[u]ntranslatable expression of surprise” in the sense of “being caught off guard. (Tr. 271). the Court explained to the jury that English-language recordings were being played to the jury (with English transcripts available as a guide). 1604). This alternate translation of “va” was reflected in a competing translation that Chvelidze offered through the testimony of his expert witness. You can’t do that with the foreign language [recordings]. (Tr. The Court explained that. 271).107 this intonation. “you can listen to the tape and look at the transcript and then decide whether the transcript is accurate. with respect to English-language recordings. 1606). 3. The Court further instructed. . what you have to do is evaluate the testimony you heard of the translators and determine whether or not you accept their testimony that the translations were accurate. (Tr. the expert testified.” (Tr. 1603-04). because the tapes will be meaningless to you. So with the foreign language transcripts.” (Tr. The District Court received two other competing translations through Chvelidze’s expert. whereas foreign-language recordings were being presented in the form of translations. That’s what you need to do on these foreign language tapes. of course. Jury Instructions During trial. 1598.
As such you. B. the District Court instructed the jury on this issue as follows: You were provided with transcripts in English of foreign-language tape recordings. Applicable Law This Court has permitted district courts “broad discretion regarding the admission of evidence” and the district court’s “evidentiary determinations will be reversed only .108 As part of the main jury charge. that is the evidence and not the foreign-language tape recording. Russian. it is the English translation or transcript which is in fact in evidence. With respect to the foreign-language tape recordings. I emphasize to you that even if you understand Armenian. or Georgian. the jury. (Tr. The inflection of any lawyer or witness who read to you the English translation either on the stand or during closing argument is not evidence. it is still the English translation of the transcripts. 2039). You on the jury are the fact-finders on the issue of whether the translation of foreign language recordings is correct or incorrect. can accept or reject the accuracy of the translations received in evidence or any part of those translations or choose to accept one translation over the other. including any testimony relating to the transcripts or foreign-language conversations.
176 (2d Cir. 195 F.N.”).Y. at *5 (S. 2003) (quoting United States v. Marin. 1999)). Inc. United States v. Second. United States v. First.’” See United States v. 859 F.D. 977 (2d Cir.N. Dec. 1980) (“[The] Court is reluctant to overturn evidentiary rulings in the absence of an abuse of the district court’s broad discretion in these matters. 95 F. 246 (2d Cir. 100-01 (2d Cir. 1998). 87 (2d Cir.. 626 (9th Cir.Y. the trial court may instruct .109 if they are ‘manifestly erroneous. where foreignlanguage tapes are admitted.3d 170. “[t]he decision to receive in evidence English translations of foreign-language transcript lies in the discretion of the district court. United States v.” United States v.3d 239. Carrera. Keane. insofar as any juror can understand the foreign language. uncross-examined and maybe even unqualified provider of evidence to the other jurors. 1998 WL 903467. at * 2 (E. July 24. 1145 (2d Cir. Chalarca.3d 622. 1998) (citations omitted). 249 F. Jackson. Specifically.3d 98. 335 F. Ulerio. 1975). See also United States v. see also United States v. 21. 1997) (internal quotation marks omitted).2d 182 (2d Cir. 513 F. SKW Metals & Alloys. Franco.3d 83. transcripts of the English translations may be admitted as substantive evidence).2d 974.2d 1144. that juror could impermissibly become “an unsworn. 1997 WL 414121. Accordingly. The admissibility of English transcripts of foreignlanguage recordings has two justifications.” United States v. 1996). 618 F. Aulet. Ben-Shimon. 1988). 2001) (holding that where tape recordings of conversations in a foreign language are introduced.D. 136 F. “[t]ranscripts in a language other than English will almost invariably be useless” to jurors who do not speak the other language. Santos v.
United States v. as revealed in the re- . Accordingly. 480 F. United States v.S.” the error will be disregarded as harmless. 859 F. . Chalarca. 328 U. Finally. as long as there is “fair assurance” that the jury’s “judgment was not substantially swayed by the error. Any alleged prejudice in using such a transcript can be adequately addressed through limiting jury instructions. the court is “not required to conclude that it could not have had any effect whatever.2d 785. 958 F. which includes an instruction that the jury is the ultimate factfinder. Gigante. See United States v. 764-65 (1946). 246 (2d Cir. 1996) (“A limiting instruction by the district court concerning the use of transcripts. .110 the jury that the English translation of such tapes constitutes evidence.2d at 1145-46. Crim. R. 166 F. 1973) (“[C]autionary instructions eliminated whatever harmful effect that might otherwise have resulted from any discrepancies between the tape and the transcript. which does not affect substantial rights shall be disregarded.2d 1206. 52(a) (“Any error . cf. United States v. Kotteakos v. 1992).2d 821. Marin. 82 (2d Cir. 95 F. 513 F. 830 (2d Cir. errors in the admission of evidence should be disregarded if found to be harmless.3d 239. United States v. Bahadar. should alleviate any prejudice arising from the introduction of the transcripts. For an error to be deemed harmless.3d 75.”). 1992). 750. United States.2d at 977.”). the error is harmless if we can conclude that that testimony was ‘unimportant in relation to everything else the jury considered on the issue in question. P.”). Rea. Bryant. 1999). 791 (2d Cir. 954 F. Ulerio. See Fed. 1220 (2d Cir.
much less plain error. in this case.111 cord. There was no error. Accordingly. As a preliminary matter. 1582). Bruno. (quoting Yates v. asked permission to play recordings at trial. 78 (2d Cir. in considering Nadirashvili’s claim on appeal. Moreover.2d at 1145. only Chvelidze. The District Court acted within its discretion in declining to permit the foreign-language recordings to be played because the substance of the recordings was properly presented to the jury through the English translations. The argument fails. (Tr.. As the District Court concluded. it would have been useless to play the recordings to demonstrate a moment of “surprise. e. when he realized that Nadirashvili was looking for machineguns. 391. and not Nadirashvili.” because the jury could not have understood what was being said at the critical moment. he (Chvelidze) uttered an .S. including the “surprise” reflected in the voices of Chvelidze and Nadirashvili when Solomonyan asked them to find machineguns. the District Court’s decision should be reviewed only for plain error. Chvelidze was able to offer evidence of his purported “surprise” through other means. C. or any other moment. This determination was within the District Court’s discretion.3d 65. Chvelidze offered a competing translation and expert testimony to establish that. See. Discussion Nadirashvili contends that he should have been permitted to play certain recordings to convey certain points to the jury. 383 F. Ulerio. 403 (1991)).’”Id. Evatt. 859 F.g. United States v. 500 U. 2004). United States v.
Nadirashvili was able to establish this point through other means. playing the recordings would not have helped the jury understand this point. 1433). However. and this issue was addressed . Government Exhibit 223T. 1470). Indeed. the only “inflection” in question was the prosecutor’s inflection when reading the word “Wow” in Government Exhibit 233T. 1433). “cars” with “automatic transmissions” as code for “machineguns. (Tr. (Tr.112 “[u]ntranslatable expression of surprise” in the sense of “being caught off guard. (Tr. Nadirashvili also contends that the District Court should have permitted the playing of the recordings to demonstrate the length of time it took for both Nadirashvili and Chvelidze to understand the “code” that was used on these calls — that is. 30-31). (Nadirashvili Br. 1603-04). He testified that it took approximately 30 seconds for Chvelidze to understand that he (Nadirashvili) was talking about machineguns during the call in question. Nadirashvili testified that both he and Chvelidze were surprised at the moment they realized they were being asked to look for machineguns. Nadirashvili further contends that the District Court should have been permitted the playing of unspecified foreign-language recordings in order to counteract the prosecutor’s ability “to graft his own inflections onto the statements” and “accelerate the pace of the conversation” when translations were read to the jury.” Again. Playing the foreign language recordings would not have added to the jury’s understanding of this issue.” (Tr. Chvelidze’s initial struggle to understand the code was readily apparent from the translation (GX 233T) itself. Again.
2007 (Tr. These arguments should be rejected.113 through the expert testimony and the competing translation of Government Exhibit 223T. The Government’s extensive arguments spanned nearly 150 transcript pages. With respect to Nadirashvili. the only defendant who testified during the trial. A. POINT VIII The Government’s Jury Addresses Did Not Deprive the Defendants of a Fair Trial Nadirashvili and Spies argue that portions of the Government’s main and rebuttal summations deprived them of their constitutional right to a fair trial. Moreover. the Government argued in its main summation as follows: . because Nadirashvili was able to make his points through other evidence. 1947-94). is not evidence. the District Court properly denied the request to play the foreign-language recordings. 2039). but Nadirashvili and Spies complain about only a handful of remarks. Thus.” (Tr. and delivered its rebuttal summation on July 18. any error in declining to play the foreign-language recordings would have been harmless. 2007. any prejudice was cured by the District Court’s instruction to the jury that the “inflection of any lawyer or witness who read to you the English translation . . . Finally. Relevant Facts The Government delivered its main summation on July 16. (Tr. 1616-1711).
(Tr. And he said you have been at work. I didn’t want anything to do with guns. During its rebuttal summation. Because he suggested that the call. Soloway said. the only charade that you’ve seen with respect to Mr. that puts you in a very rough spot. Nadirashvili was his testimony on the witness stand. you recall [Nadirashvili] testified in this courtroom. folks. can you go speak to him about it? Mr. this is about human nature. No defendant objected to this argument. That was the charade. He didn’t want to get Levan involved. You don’t want to upset your friend.” That story was the charade. the Government stated: Now. Well. and somebody comes up who is a friend of yours and says. Mr. but you also don’t want to go tell the boss that that knucklehead who is talking to you wants the promotion. Soloway [Nadirashvili’s counsel] came up and he told you that this is about humanity. But he didn’t take his analogy to the next obvious step and apply it here. this is about being in the moment. I really want that promotion and you know the boss. and I submit to you he told you a string of lies about his role in this conspiracy. the initial call from Artur Solomonyan .114 Ladies and gentlemen. 1660-61). “I did it to preserve my friendship with Solomonyan.
and he told him that Solomonyan was looking for guns and can you help him? That’s what he told him. And you know that because it’s in the recording. this was shut down for the weekend. he went out in Brighton trying to find guns for Artur Solomonyan. They weren’t gun dealers I went to see. And he continued at it. But what he didn’t tell you is that what his client did was leave his office and run as fast as he could down to the boss’ office and ask the boss to give that guy a promotion. How do you know that? Because if you look at the call immediately after Artur Solomonyan calls Nikolai Nadirashvili. Nadirashvili. You know that Mr. SOLOWAY: Objection. and after. . But he told you. you know otherwise. Well. everything was hunky-dory again.115 to Nikolai Nadirashvili was that knucklehead guy looking for the promotion. you know. It’s the jury’s recollection that controls. MR. and you know it because he told you on the witness stand. He didn’t tell anybody that he went to Brighton. Soloway didn’t even mention the fact that after all these series of calls. THE COURT: It’s in the transcript. you know what Nadirashvili did. Mr. He picked up the phone and he called Levan Chvelidze. as he says.
He told you while he was on the witness stand that those folks at Brighton.” it was uttered for the first time during the summations of Mr. Nadirashvili got a call from Artur Solomonyan and he acted immediately. MR. Soloway’s analogy to the logical conclusion. What the evidence shows here is that Mr. . Finally. It doesn’t match up to the evidence. that’s a guy not only going to the boss’ office. . the Government argued in its summation: The first thing I want to talk to you about is the defendant Solomonyan and defendant Spies’ entrapment claim. as to Spies. Burke [Spies’ counsel]. Except as quoted above. . Fasulo [Solomonyan’s counsel] and Mr. FASULO: Objection. they were just criminal types. If you take Mr. and he went out to try to solicit some guns from them.116 [THE PROSECUTOR:] . You may have noticed that this word “entrapment. 1975-77). he is out looking for a job for his friend in some supervisory spot. It’s a nice analogy. no defendant objected to this argument. they weren’t gun dealers. (Tr. but it doesn’t match up to the evidence.
FASULO: Objection. didn’t it? Mr. MR. . Judge. They could have sat right down there. Mr. THE COURT: Overruled. And they previewed for you what they said the evidence would show.” MR. Burke never mentioned the word “entrapment” during his opening statement. MR. entrapment. Mr. Burke. Not once during either of those opening statements did you hear the word “entrapment. they didn’t even have to make an opening statement. THE COURT: The objection is noted. Fasulo and Mr.SCHWARZ: Objection. Fasulo got up to this podium he told you about how his client was entrapped. But they did. [THE PROSECUTOR:] Now.117 THE COURT: Overruled. [THE PROSECUTOR:] That was the first you heard those words being used. FASULO: Objection. Ginsberg [Solomonyan’s counsel] never used the word “entrapment” during his opening statement. these defendants. again. [THE PROSECUTOR:] That changed at the end of the case. As soon as Mr. your Honor. they couldn’t say “entrapment” enough.
That’s what happened. transcripts of which are in your book. Same thing for Mr. you can’t do that. [The Government] went through all those recordings with you during [its] main summation in great detail. just to name a few. You can’t do that. and Dimitriy Vorobeychik. They had 2. recordings with other criminal associates people like defendants Ioseb Kharbadze. He said. he was pushed. he started with it and he finished with it. and I am not going to run through them all the again. Ioseb Chvelidze. Spies was induced. That’s why he’s not guilty. Nikolai Nadirashvili. . he was entrapped.000 phone calls. He told you Mr. What happened between the opening statement about a month ago and defense counsel’s summations on Monday? The evidence came in. The overwhelming evidence that Arthur Solomonyan and Christiaan Spies committed the crimes that are charged in this indictment.118 [THE PROSECUTOR:] . you’ve sat and listened to the evidence and you’ve listened to the summa- . He finished with the exact same argument. He went even further. . recordings between Solomonyan and Spies discussing their criminal activities. he was pressured. recordings with Kelly Davis. There was the recorded evidence. because you have heard. Burke.
Ultimately. the District Court charged the jury as follows: In determining the facts. in the alternative. Solomonyan repeated his objection to the Government’s remarks. (Tr. and I’m confident that you are aware of that evidence. Keep in mind that defendants are under no obligation to raise a defense in opening statements or to . And counsel’s arguments at the close of trial are not evidence. and moved for a mistrial or. (Tr. Spies also joined in those motions. but allowed defense counsel to submit a proposed curative instruction. the government commented on the fact that defendants Solomonyan and Spies did not raise the entrapment defense in their opening statements. None of what the lawyers have said in their opening statements.119 tions. 2012-14). you must rely upon your recollection of the evidence. The following morning. or their questions during the trial is evidence. (Tr. (Tr. out of the hearing of the jury. Ignore arguments that are not based on evidence. for a curative jury instruction. 1950-51). their objections. You may consider such arguments based on evidence if you find them persuasive. The Court denied the motion for a mistrial. For example. 2008). At the conclusion of the Government’s rebuttal. (Tr. 1997-99). 199597). the District Court indicated that it would issue a curative instruction. during its rebuttal summation. 2004.
a prosecutor “is ordinarily entitled to respond to the evidence. issues.2d 987. 1992). Bautista. 1994). Coriaty. Marrale. 2003) (internal quotations and citations omitted). 255 (2d Cir. see also United States v. 971 F. Robinson. 2018-19). 2002) (internal quotation marks omitted). 27-28 & n. A defendant challenging a conviction based on comments in a prosecutor’s summation “must point to egregious misconduct.” United States v.3d 244. United States v. 300 F. 181 (2d Cir.3d 726. Gottlieb.” United States v. 883 (2d Cir.2d 658. 23 F.S. see also United States v. to be “blunt and to the point. 1974). Moreover.” United States v. and hypotheses propounded by the defense. you should consider only the evidence before you and the instructions that I will give you on the defense of entrapment later on during these instructions. 994 (2d Cir. 342 F. 25.2d 934. “‘Inappropriate . 667 (2d Cir. see also United States v. So in considering the defense of entrapment.3d 168. Edwards. “[i]mproper summation statements violate a defendant’s due process rights only if they cause substantial prejudice to the defendant. 1991). (Tr. 493 F. 923 F. Rivera. B. 32-33 (1988).2d 876. and in so doing. Applicable Law In summation. 955 (2d Cir. This is particularly true where a defendant’s closing has “opened the door” to the prosecutor’s comments on rebuttal.” United States v.2.120 produce any evidence during the trial. 732 (2d Cir. 485 U. 695 F. 1982). Simmons. for example.
see also United States v. the measures adopted to cure any harm they caused. 470 U.2d 139. 29 F. this Court “will reverse only upon a showing (1) that the prosecutor’s statements were improper and (2) that the remarks. resulted in substantial prejudice.S. Locascio. the Court has recognized that “the misconduct alleged must be so severe and so significant as to result in the denial of [the defendant’s] right to a fair trial. 57 F. 6 F. C. 666 (2d Cir. 1995) (quoting United States v. Melendez. 241 (2d Cir. Young. 981 F.3d at 241.2d 664. In applying these factors. would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding. 57 F.3d 62. standing alone. 2004) (internal quotation marks omitted). Thomas. 1.” United States v. Melendez.121 prosecutorial comments. 1993). .3d 924. In sum. 142 (2d Cir. 945 (2d Cir. 1992) (“It is a ‘rare case’ in which improper comments in a prosecutor’s summation are so prejudicial that a new trial is required.3d 238. Discussion None of the remarks complained of here amount to “egregious misconduct. 244 (2d Cir. United States v.” nor did they cause “substantial prejudice” — particularly in light of the District Court’s instructions to the jury. 1992). In evaluating whether a prosecutor’s remarks warrant reversal. 66 (2d Cir.” United States v. 1994). Thompson.’” United States v. and the certainty of conviction absent the improper remarks. 968 F. See United States v. this Court examines the severity of the remarks. 11-12 (1985)).” (citation omitted)).3d 232. taken in the context of the entire trial. Espinal. United States v. 377 F. Rodriguez.
see also Thomas. 59).” Nadirashvili cannot demonstrate that the Government’s conduct “amounted to flagrant abuse.2d 969.” Nadirashvili also complains that the Government improperly characterized his testimony with respect to whether he ever went to Brighton Beach to find guns for Solomonyan. e. 377 F. 977 (2d Cir. Indeed. 583 F. Peterson.” and included a “string of lies.2d 210. 212 (2d Cir. 147 (2d Cir. United States v.”). the Government’s comment was fair.122 With respect to the arguments in the Government’s main summation that Nadirashvili’s testimony was part of a “charade. Any prejudice from this comment was more than remedied both by counsel’s immediate objection that “[i]t’s the jury’s recollection that . (Nadirashvili Br. United States v.” so long as done appropriately. this Court has frequently recognized that during summations. Here.3d 131. 1987) (holding prosecutor’s statement that defendant’s testimony was “out-and-out lies” not improper because not excessive or inflammatory). and certainly not “flagrant abuse. with Nadirashvili’s credibility very much in issue.” See United States v. 824 F. 808 F. a prosecutor may characterize a defendant’s testimony as “lies. 2009) (holding that where a “defendant did not object to the remarks at trial. Resto.g.1987) (“Use of the words ‘liar’ and ‘lie’ to characterize disputed testimony when the witness’s credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory. See. Farmer.. reversal is warranted only where the remarks amounted to a flagrant abuse” (internal quotation marks omitted)).3d at 245 (declining to address propriety of prosecutor’s comment that defendant “lied” because it was not prejudicial).
123 controls” (Tr.” (Tr. Accordingly. this stray statement provides no basis for disturbing the jury’s verdict. None of what the lawyers have said in their opening statements. In addition. the jury was required to find that the defendant “was substantially motivated by the expectation that he would receive financial compensation or some . POINT IX The Jury Instructions Were Proper Spies argues that the District Court improperly instructed the jury in two respects: by telling them that “law enforcement techniques are not the jury’s concern. Even if the Government’s comments were not appropriate.” and by providing an example of circumstantial evidence: the traditional “wet raincoat” example. 2018-19). (Tr. their objections. And counsel’s arguments at the close of trial are not evidence. there is simply no way to conclude that Spies was denied a fair trial as a result of the government’s rebuttal summation. you must rely upon your recollection of the evidence. Kharabadze argues that the District Court erroneously declined to instruct the jury that. the Government’s comments regarding the defendants’ failure to discuss an entrapment defense during opening statements does not warrant a new trial. 1976) and by the Court’s subsequent instruction that “[i]n determining the facts. or their questions during the trial is evidence. Taken as a whole. Similarly. contrary to Spies’s argument. 2018). any conceivable prejudice was cured by the District Court’s subsequent curative instruction. to find a defendant guilty of Count Two.
124 other type of reward or benefit.” These arguments are meritless. A. Relevant Facts The District Court held a charge conference without a court reporter present on Friday, July 13, 2007. On July 16, 2007, the Court held a second charge conference at which the parties restated on the record, and in abbreviated form, the objections that they had raised at the July 13 conference. (Tr. 1573-88). At the June 16 charge conference, Spies and Chvelidze, objected to the inclusion of the following sentence in the Court’s jury instructions: “Law enforcement techniques are not your concern.” (Tr. 1577-78). The District Court overruled this objection and ultimately instructed the jury as follows: During the trial you have heard testimony of witnesses and argument by counsel that the government did not utilize certain investigative techniques. You are instructed that there is no legal requirement that the government use any of those specific investigative techniques to prove its case. Law enforcement techniques are not the jury’s concern. Your concern, as I have said, is to determine whether or not on the evidence or lack of evidence a defendant’s guilt has been proved beyond a reasonable doubt. (Tr. 2039-40). At the June 16 charge conference, Spies also objected to the District Court’s use of the “wet raincoat” example
125 to illustrate the concept of circumstantial evidence, at least without the presence of a second example. (Tr. 1574-75). The District Court overruled this objection and ultimately instructed the jury as follows: There are two types of evidence which you may properly use in deciding whether a defendant is guilty or not guilty: Direct and circumstantial evidence. Direct evidence is evidence that proves a disputed fact directly. For example, where a witness testifies as to what he or she saw, heard or observed, that is called direct evidence. Circumstantial evidence, in contrast, is evidence that tends to prove a disputed fact by proof of other facts. To give a simple example that is often used in the courthouse, suppose that when you came into the courthouse today the sun was shining and it was a nice day, but that the courtroom blinds were drawn and you could not look outside. Then later, as you were sitting there, someone walked in with a dripping wet umbrella and, soon after, someone else walked in with a dripping wet raincoat. Now, on our assumed facts, you cannot look outside of the courtroom and you cannot see whether it is raining or not. So you have no direct evidence of that. But, on the combination of the facts about the umbrella and the raincoat, it would be reasonable for you to conclude that it had been raining.
126 (Tr. 2023-24). Finally, the District Court declined to give Kharabadze’s proposed instruction that the jury could convict him of Count Two only if it found that he “was substantially motivated by the expectation that he would receive financial compensation or some other type of reward or benefit.” (Kharabadze A. 353). Instead, the District Court the instructed the jury on the elements of “brokering” as follows: There are four essential elements of the crime of brokering with respect to the import or transfer of foreign defense articles, each of which the government must prove beyond a reasonable doubt: First: That the defendant engaged in the business of brokering activities with respect to the import or transfer of a foreign defense article; Second: That the foreign defense article was a non-United States defense article of a nature described in the United States Munitions List; Third: That the defendant engaged in such brokering without obtaining a license or written approval from the state department; and, Fourth: That the defendant acted willfully. The federal regulations that accompany this statute further define the terms contained in
2048-49). I will now describe for you five of the accompanying regulations referred to in the indictment and define some of the terms that are used in the elements above. Wilkerson.3d 717. transportation. 732 (2d Cir. 2045-46). export. (Tr. see also United States v. irrespective of its origin. Among the definitions that the Court then gave to the jury were the following: The term “brokering activities” means acting as a broker. freight forwarding. B. 361 F. Applicable Law A defendant challenging a jury instruction on appeal faces a heavy burden: he must establish both that he requested a charge that “accurately represented the law in every respect” and that the charge delivered was erroneous and caused him prejudice. and includes the financing. commission. 2004). sales. . (Tr. purchases. or import of a defense article or defense service. United States v. or transfers of defense articles or defense services in return for a fee. or other consideration.127 the statute and the elements of the crime. or taking of any other action that facilitates the manufacture. A “broker” means any person who acts as an agent for others in negotiating or arranging contracts.
1555 (2d Cir.3d 653. 273 F. Carr. 657-58 (2d Cir.”) (quoting United States v. 105 (2d Cir. 284 (2d Cir. C.S. United States v.’” United States v.3d 276. viewing the charge as a whole. Mulder. 246 (2d Cir. 2001). Brown. 880 F.3d 91. Although this Court reviews a preserved claim of error in jury instructions de novo.3d 289. Pujana-Mena. 273 F. 949 F. . United States v.2d 24. these instructions properly state the law and could not have caused prejudicial error. 27. 31-32). Discussion 1. 252 F. 538.” United States v. 2001). there was a prejudicial error. 541 (1987)). it will reverse a conviction “only where appellant can show that. 1994)). the portions of the District Court’s charge to which he objects are commonly used by district courts. Quinones. 27 (2d Cir. 313-14 (2d Cir. this Court does not look only to the particular words or phrases questioned by the defendant. 30 F. 1991). Mulder.128 White.3d at 105 (court must “look to ‘the charge as a whole’ to determine whether it ‘adequately reflected the law’ and ‘would have conveyed to a reasonable juror’ the relevant law”) (quoting United States v. Jones. 1989) (quoting California v.2d 1550. Indeed. 479 U. but must “‘review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law. a defendant must demonstrate both error and ensuing prejudice. 2009) (“To secure reversal on a flawed jury instruction. In reviewing jury instructions. Tropeano. Spies’s Challenges As Spies readily acknowledges. 511 F. (See Spies Br.3d 240. United States v. 552 F. 2007)).
it is inconceivable that a juror could have been confused so as to believe that the instruction that “law enforcement techniques are not the jury’s concern” meant that they were somehow precluded from examining “the behavior of the Government and its informants” in the context of entrapment. The District Court provided a lengthy entrapment instruction to the jury (Tr. 2111). the District Court specifically instructed the jury that they had to determine. This entrapment instruction is completely consistent with the “law enforcement techniques instruction. then you should find that the defendant was not the victim of entrapment. you must acquit the defendant. 2040). viewed as a whole. 2109-11). . and (2) if you have a reasonable doubt as to whether the defendant was predisposed to commit the criminal acts charged in the indictment.” (Tr. (Spies Br. concluding with the following instruction: If you find beyond a reasonable doubt that the defendant was predisposed to commit the offenses charged in the indictment. (1) if you find that a government agent initiated the criminal acts charged in the indictment. among other things whether “a government agent initiated the criminal . the jury charge. 29). 29). On the other hand. . did not undermine Spies’s entrapment defense. In light of the detailed entrapment charge.” which advised the jury that “there is no legal requirement that the government use any .129 Contrary to Spies’s arguments. specific investigative techniques to prove its case. To the contrary. (Spies Br. (Tr.
The fact that one may infer that it is raining because “someone walked in with a dripping wet umbrella and. someone else walked in with a dripping wet raincoat” says nothing about what one may infer from other facts. Thus. There are times when different inferences may be drawn from facts whether by direct or circumstantial evidence. “the inference drawn from the circumstantial evidence is unassailable and the ensuing conclusion is unavoidable.” (Spies Br. It is a reasoned. soon after. 2111). (Tr. It is for you and you alone to decide what inferences you will draw. The government may ask you to draw one set of inferences. Likewise. Indeed. 2024). This is simply incorrect. Spies argues that in the “wet raincoat” example provided by the court. the District Court also instructed the jury An inference is not a suspicion or a guess.130 acts charged in the indictment. The “law enforcement techniques charge” was proper and not misleading.” (Tr. 32). the “wet raincoat” instruction provides no basis for disturbing the jury’s verdict. . while the defendants may ask you to draw another. Spies challenge to a standard circumstantial evidence charge is meritless. logical decision to conclude that a disputed fact exists on the basis of another fact that you know exists.
131 2. i.2(a)” and “includes the financing. “[t]hat the defendant acted willfully. commission. After the District Court listed the four elements of the offense. 2046). compensation or some other type of reward or benefit.” (Tr.e. the District Court instructed the jury that it had to find. (1) willfulness and (2) a motive to receive a fee.” (Tr. including the element “[t]hat the defendant engaged in the business of brokering activities with respect to the import or transfer of a foreign defense article” (Tr. or transfers of defense articles or defense services in return for a fee. as an element. Namely. 2046).. Kharabadze’s Challenge to the Brokering Instruction Kharabadze’s contends that the District Court erred when it “did not advise the jury that the crime [of brokering] required proof of two different states of mind. it instructed the jury that the elements were “further define[d]” in the federal regulations and then proceeded to “define some of the terms that are used in the elements.* Kharabadze’s proposed instruction below As set forth in Point I above. Thus. the Court further defined “brokering activities” to mean “acting as a broker” and further defined a “broker” as “any person who acts as an agent for others in negotiating or arranging contracts. 2045). or other consideration.” (Tr. purchases. and in accordance with the regulations. The argument fails. Moreover. the jury was instructed correctly. when read as a whole.” (Kharabadze Br. 2048-49) (emphasis added). 58). sales. * . the AECA regulations define “brokering activities” to mean “acting as a broker as defined in § 129.
353) (emphasis added). § 129. § 129. irrespective of its origin. . transportation. These arguments are without merit. purchases.R. Nadirashvili’s challenge is moot. as he has completed serving his term of imprisonment.” 22 C.F.R. The regulations define “broker” to mean “any person who acts as an agent for others in negotiating or arranging contracts.2(b). and Nadirashvili challenge certain aspects of the District Court’s Sentencing Guidelines calculations. whereas the regulations include no such requirement. commission. or import of a defense article or defense service. sales or transfers of defense articles or defense services in return for a fee. Moreover. or taking of any other action that facilitates the manufacture. freight forwarding. In addition. export. POINT X The Challenges to the District Court’s Guidelines Calculations Should Be Rejected Solomonyan.132 was properly rejected because it attempted to graft a requirement that a defendant was “substantially motivated” by the expectation of a reward (Kharabadze A. in light of the fact that Solomonyan received a sentence that was well below his Guidelines range. or other consideration. Kharabadze.F.” 22 C.2(a). any errors in applying certain offense level enhancements would have been harmless.
S. 530.S. 651. § 1B1.2(a)(1). As an initial matter.S. § 3D1. The District Court then proceeded to calculate the offense levels for Counts One and Two. § 1B1. Relevant Facts At the sentencing hearings of Kharabadze. Because. the District Court made detailed rulings concerning the application of the Guidelines. which provides: A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit. the District Court . § 2M5.S. 74).2(d). Solomonyan A. the District Court found that the total offense level was 26. in this case. pursuant to U. U.133 A.2(d). 530. Because Count One of the Indictment charged a conspiracy with two objects — (1) engaging in the business of brokering activities with respect to the import and transfer of foreign defense articles. (Kharabadze A. the District Court found the Overseas Arms Trafficking Offenses — Counts One and Two — should be grouped pursuant to U.G.S. and (2) conspiracy to transport a machinegun or a destructive device — the District Court applied U. Solomonyan A. 74).2. Spies A. With regard to Count Two. 651.G. the jury verdict did not establish which of the two objects was the object of the conspiracy charged in Count One. and Spies. Spies A.G.S. (Kharabadze A.G.S. Solomonyan.S.
In the case of Solomonyan and Spies.2(d)] should only be applied with respect to an object offense alleged in the conspiracy count if the court. and Spies.G. Spies A.S. § 1B1. (Kharabadze A.1 to find the base offense levels for Kharabadze.2(d) (n. the District Court found that the base offense level was 20. In the case of Kharabadze. . the District Court applied U. because the offense involved a machinegun or destructive device.S.G.S. were it sitting as trier of fact.2(d).G.G. Solomonyan and Spies of conspiring to commit the second object of Count One — that is.G. the District Court found that the base offense level was 18.S. § 1B1. § 2K2. does not establish which offense(s) was the object of the conspiracy. the District Court then found beyond a reasonable doubt that. Applying this standard.134 applied Application Note 4 to U. were it sitting as trier of fact. Solomonyan A.G. because the offense involved a machinegun or destructive device and Solomonyan and Spies were prohibited persons (illegal aliens) at the time .2(d)] because there are cases in which the verdict . would convict the defendant of conspiring to commit that object offense. .S. [U. Solomonyan. 651.S. (Kharabadze A.1(a)(5).S. pursuant to U.S. which reads: Particular care must be taken in applying [U.G.S. with respect to the second object of Count One.S. 651). § 1B1. U. 74-75).1(a)(4)(B). § 1B1. § 2K2. 530. § 2K2. conspiring to transport or possess a machinegun or destructive device.4).S. In such cases.S.S. it would convict Kharabadze. Accordingly.S. pursuant to U.
§ 2K2.S. The Court ruled. § 2K2. 531. (Solomonyan A. and Spies. The District Court determined that. 75). that the application of the 15-level enhancement. with respect to Kharabadze. would not constitute an ex post facto application of a Guidelines provision because Kharabadze was still a member of the conspiracy as of January 7. which became effective on November 1.G. there should be a three-level reduction in the offense level under U.1(b)(1)(A). 531. (Kharabadze A. 530. Solomonyan. 74). Solomonyan A.S. the Court found that the offense involved at least five firearms and that a two-level enhancement was applicable pursuant to U. § 2K2. (Kharabadze A.1(b)(3)(A). 653. (Kharabadze A. 653-54). Spies A.S.G.S.1(b)(2) because they were not about to complete all . Spies A. The District Court also applied enhancements based on the number of weapons involved in the conduct of Kharabadze. a missile. with respect to Kharabadze.G.S.135 they committed the offense. (Solomonyan A. Solomonyan.1(b)(1)(E). Solomonyan.S. pursuant to U. or a device for use in launching a portable rocket or missile. 2005. and Spies. The District Court further found by a preponderance of the evidence with respect to Kharabadze. and Spies that a 15-level enhancement applied because the offense involved a destructive device that is a portable rocket. Spies A. With respect to Kharabadze. With respect to Solomonyan and Spies. 2X1. the Court found that the offense involved at least 200 firearms and that a ten-level enhancement was applicable pursuant to U.G. 2004. 75).S. 655).S.
Spies A.3(a)(2).G. 536). 533. and Spies were 32. (Kharabadze A. (Kharabadze A. § 3B1. and Spies were 121 to 151 months’ imprisonment (Kharabadze A.S. respectively. (Kharabadze A. Solomonyan. Spies A. Solomonyan. (Spies A. pursuant to U. The District Court also increased the offense levels of Solomonyan and Spies based on their roles in the offense. Solomonyan A. § 1B1. the District Court ruled that the same Guidelines calculation could be reached with respect to Kharabadze. . 48.S. 656. 656. and 45.136 of the acts necessary for the offense at the time they were arrested in March 2005. 532. Spies A. Finally. the District Court determined that the total offense levels of Kharabadze. Solomonyan A.S. Accordingly. 536. 76). 532-33. The District Court increased Spies’s offense level by three levels on the grounds that he was a manager or supervisor (but not an organizer or leader) of criminal activity that involved five or more participants and was otherwise extensive. 75-76).S. life imprisonment (Solomonyan A. respectively. Based on a criminal history category of I for each. § 3B1.S. (Solomonyan App.G.1(b). 656). and life imprisonment (Spies A. 76). 76).1(a). Solomonyan. pursuant to U. and Spies based on the “relevant conduct” analysis of U. The District Court increased Solomonyan’s offense level by four levels on the grounds that he was an organizer or leader of criminal activity that involved five or more participants and was otherwise extensive. 533). 76).S. Solomonyan A. the Court found that the Guidelines ranges of Kharabadze.G. 656.
552 U. or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range”). and 240 months’ imprisonment respectively.S.3d 180. 189 (2d Cir. does not consider the § 3553(a) factors. 550 F.” United States v. selecting a sentence based on clearly erroneous facts. makes a mistake in its Guidelines calculation. B. the District Court sentenced Kharabadze. United States. . 264 months’ imprisonment. A district court “commits procedural error where it fails to calculate the Guidelines range (unless omission of the calculation is justified). failing to consider the § 3553(a) factors. see also Gall v. 552 U.” Id. If this Court determines that there was no procedural error.137 Based on the factors of Title 18. at 51. treating the Guidelines as mandatory. .S. to be followed by three years’ supervised release. Applicable Law 1. 2008). In .] . Cavera. United States Code.  treats the Guidelines as mandatory[. Sentencing Review Generally This Court’s review of a district court’s sentence “encompasses two components: procedural review and substantive review. at 190 (internal citations omitted). 51 (2007) (procedural error includes “failing to calculate (or improperly calculating) the Guidelines range. it “should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. or rests its sentence on a clearly erroneous finding of fact. United States.” Gall v. 38. Solomonyan and Spies to non-Guidelines sentences of 108 months’ imprisonment. Section 3553(a).
’” United States v. see also United States v. 356 (2007)). 100 (2d Cir. this Court must “take into account the totality of the circumstances. United States.3d at 189 (emphasis in original) (quoting United States v. 490 F. Rather. Fleming.3d at 190. we will accept that the requisite consideration has occurred.” and should “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions. demonstrating that “it has ‘considered the parties’ arguments’ and that it has a ‘reasoned basis for exercising [its] own legal decisionmaking authority. Rigas. The weight that the district court puts on a . and nothing in the record indicates misunderstanding about such materials or misperception about their relevance. giving due deference to the sentencing judge’s exercise of discretion. 397 F. 238 (2d Cir.’” Cavera. This Court cannot “substitute [its] own judgment for the district court’s on the question of what is sufficient to meet the § 3553(a) considerations in any particular case.”). Cavera. 550 F.” Id. 2005) (“As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable.3d 95. 2007)).3d 208. With respect to the various factors that must be considered at sentencing.” Cavera. 551 U. 550 F. this Court does not require the district court to have engaged in the “formulaic or ritualized burden” of performing “‘robotic incantations’ that [it] has considered each of the § 3553(a) factors. at 193. 338.S. this Court requires only that the district court provide “a brief statement of reasons” for the sentence imposed.3d at 193 (quoting Rita v. and bearing in mind the institutional advantages of district courts. 550 F.138 conducting such review.
550 F. Cavera. [it] must defer heavily to the expertise of district judges. this Court neither “presume[s] that a Guidelines-range sentence is reasonable. that ‘a major departure [from the Guidelines] should be supported by a more significant justification than a minor one. so long as “the factor.” Id. with respect to the role of the Sentencing Guidelines as a factor at sentencing. 387 (2d Cir. issues of fact under the clearly erroneous standard. 552 U.” United States v. a district judge who imposes a non-Guidelines sentence “should say why she is doing so. can bear the weight assigned it under the totality of circumstances in the case. see also Gall.” United States v.S. once this Court is “sure that the sentence resulted from the reasoned exercise of discretion. However. 550 F.’” United States v. in determining the appropriate standard of review for a district court’s application of the Guidelines to the specific facts of a case. and exercises of discretion for abuse thereof. 446 F.3d at 190. Review of Guidelines Calculations This Court “reviews issues of law de novo. as explained by the district court. . 409 F. Thorn. 552 U. 2006) (citing United States v. 119 (2d Cir. 2005)).3d 114.3d 378. at 49 (reviewing court may not apply “heightened standard of review to sentences outside the Guidelines range”). [this .” nor that “a non-Guidelines sentence is unreasonable. . Ultimately.3d at 193 (quoting Gall. at 191. 2.S. mixed questions of law and fact either de novo or under the clearly erroneous standard depending on whether the question is predominantly legal or factual.” Id. Cavera. Thus. Selioutsky. at 50).139 particular factor need not be the weight that this Court would give the factor. bearing in mind . Finally.
3d 296. as required by U. 2004)).3d 65. A district court’s findings relating to Guidelines calculations are based on a preponderance of the evidence.1.S. § 2X1. 75 (2d Cir. United States v. plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty. § 2X1. United States v. 2006) (citing United States v. Discussion 1.S.G. Gotti. Vasquez. 413 F.1(a) provides that the base level for a conspiracy is the “base offense level from the guideline for the substantive offense.S. Garcia.1 explains that although the base offense level will be the same as that for the substantive offense: [T]he only specific offense characteristics from the guideline for the substantive offense that apply are those that are deter- .S.140 Court] follow[s] an “either/or approach.” U. 459 F.S.G. 389 F.3d 201.G. The District Court Properly Applied U. Solomonyan is mistaken. B.” (Solomonyan Br.” adopting a de novo standard of review when the district court’s application determination was primarily legal in nature. and adopting a “clear error” approach when the determination was primarily factual. § 2X1.1 Solomonyan argues that a remand is required because the District Court made its findings “by a preponderance of the evidence and not upon facts found to have been established with reasonable certainty.1. 349 (2d Cir.S. 26). 220 (2d Cir. Application Note 2 to § 2X1. Section 2X1. 2005).
3d 239 (2d Cir. If it was established that the defendants actually intended to physically restrain the teller. U. even under Section 2X1. the specific offense characteristic for physical restraint would be added.141 mined to have been specifically intended or actually occurred. .G. The offense level would simply reflect the level applicable to robbery of a financial institution. In United States v. hostage taking. if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery. § 2X1.1. United States v.S. the value of the items that the defendant attempted to steal would be considered. 357 F. comment. As this Court explained in reviewing a ruling concerning the amount of funds that defendants in a conspiracy intended to obtain.2). (n. discharge of a weapon. Speculative specific offense characteristics will not be applied.1. this Court made clear that the preponderance of the evidence standard should be applied to determine factual issues at sentencing. a district court’s findings “need be made only by a preponderance of the evidence” in order to find a specific intent to cause a particular loss. the offense level ordinarily would not include aggravating factors regarding possible injury to others. because such factors would be speculative. with the enhancement for possession of a weapon. Velez. 2004). For example. In an attempted theft.S. or obtaining a large sum of money.
17 F.S. Solomonyan. 2. See generally United States v. Accordingly. The District Court properly applied Section 2K2. 1994). see also United States v.1 to determine the base offense level for the conspiracy charged in Count One.1 To Determine the Base Offense Level for Count One Kharabaze challenges the District Court’s application of U.1. § 1B1. 357 F. . Malpeso. 1550 (2d Cir.3d at 243. Spies and Kharabaze conspired to transport or possess a machinegun or destructive device.S. 27) is contrary to the law of this Circuit. and Spies were guilty of conspiring to commit the second object of Count One — transportation or possession of a machinegun or destructive device in foreign commerce.S. because the Court found beyond a reasonable doubt that Solomonyan. 167-68 (2d Cir.S. 115 F. the district court decisions on which Solomonyan relies (Solomonyan Br. Solomonyan’s claim that a “reasonable certainty” finding “requires something more than a mere preponderance of the evidence” (Solomonyan Br. United States Code.2(d) and found beyond a reasonable doubt that Kharabadze. The District Court properly applied Application Note 4 of U. Notably.142 Velez. § 2K2. The District Court Properly Applied U.G. This argument should be rejected. § 2K2. 1997) (holding that application note is constitutional). in violation of Title 18.3d 155.G.S.G. 28) predate this Court’s decision in Velez. Section 922(a)(4).3d 1531. Rosa.S.
“stingers. the Court properly found beyond a reasonable doubt that Kharabadze. the price list that Kharabadze provided to Solomonyan on June 9. and Spies conspired to commit the second object of Count One.C. 130005.S.” or “surface to air heat seeking missile[s]” (Kharabadze A. “hand grenade[s]” with a “50-meter” and “200-meter range” (Kharabadze A. the evidence established beyond a reasonable doubt that the weapons involved were a machinegun or destructive device. 1308). Solomonyan. As described above.S.S.G. § 5845(f). Solomonyan. Thus. RPGs and Stinger missiles are destructive devices within the meaning of U. This finding properly triggered an 18-point base offense level for Kharabadze under U. possess. transport or import machine guns or destructive devices.S. and Spies lacked the proper license to deal. 2004 included.S. Armenia. because the offense involved a machinegun or destructive device.S. 381-82). 901) and to travel from Leninakan. and Spies plotted to cause these weapons to move in foreign commerce. Moreover. and Spies conspired to commit this offense. Solomonyan. § 2K2.C. 164).1(a)(5) and 26 U.G. Solomonyan. 221). among other things.” (Kharabadze A.143 The evidence at trial proved beyond a reasonable doubt that Kharabadze. § 2K2.1(a)(5) and 26 U. and fully automatic AK-47s constitute “machineguns” within the meaning of U.S. The weapons were to come from “Russian bases” in Eastern Europe (Tr. (Tr. 223-24). (Tr. and then to the United States by ship. § 2K2. The evidence also proved beyond a reasonable doubt that Kharabadze. to the Republic of Georgia. the evidence proved that Kharabadze. and .1(a)(5).S. and “fully automatic AK[-47]s.G. As an initial matter. § 5845(b). 1205-07.
which are “single-person shoulder launched missile[s]. in light of the overwhelming evidence that the offense involved a destructive device.144 a 20-point base offense level for Solomonyan and Spies under U. 4142). because the offense involved a machinegun or destructive device and Solomonyan and Spies were prohibited persons (illegal aliens) at the time they committed the offense.S. before the November 1.G.” (Tr. a missile.1(a)(4)(B).G.S. Kharabadze. a heightened standard should have been applied. the District Court properly found by a preponderance of the evidence that their offense involved “a destructive device that is a portable rocket. 1139). The District Court Properly Applied a 15-Level Enhancement for Portable Rocket or Missile With respect to Kharabadze. and Stingers. Indeed. Solomonyan. Solomonyan. the Court properly applied the fifteen level enhancement. 2004 effective date of . § 2K2.S. 3. the District Court’s finding that the offense involved a destructive device should not be disturbed even if. (Solomonyan Br.” and that a 15-level enhancement was therefore applicable pursuant to U. § 2K2. and Spies conspired to transfer RPGs. As described above. or a device for use in launching a portable rocket or a missile. which are “high explosive antitank” warheads that are launched under “rocket” power (Tr. 1139-40).S. and Spies. as Solomonyan contends.1(b)(3)(A). Accordingly. Kharabadze contends that the enhancement should not have applied to him because his conduct ended in June 2004.
653-54. is the controlling date for ex post facto purposes. 182 (2d Cir. Jackson. § 2K2. Here. 2005. at trial or at sentencing. that he withdrew from the conspiracy before November 1.3d 452. Flaharty. as the District Court found. Application Note 2.3d 182. a person must take some affirmative action either by making a clean breast to the authorities or communicating the abandonment in a manner reasonably calculated to reach co-conspirators. it is well settled that “[t]he last date of the offense. 695 (2d Cir.S. 2002) (“Withdrawal is an affirmative defense.1(b)(3)(A).G. 2004.3d 170. Fitzgerald. United States v. 335 F.3d 315.S. 2005. and the Guideline became effective on November 1. Kharabadze was willing to meet with Davis in furtherance of an arms deal.S.” United States v. because March 14. 456 (2d Cir. 67 F. § 1B1. (Kharabadze A.S. Because Kharabadze never . In addition. As of that date. 2004) (“To withdraw from a conspiracy. 318-19 (2d Cir. Kharabadze did not establish. Broderson. 295 F. see also United States v.”) (internal quotation marks and citations omitted). 1995). as alleged in the indictment. 2004.”) (quoting United States v. 369 F. U. 192 (2d Cir. 232 F. the completion date of the conspiracy charged in Count One and the substantive offense charged in Count Two is March 14.3d 682. 2003)).G. see Tr. and the defendant has the burden of showing that he performed affirmative acts that were inconsistent with [the] object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators. See United States v. 1057).145 U. 2000) (same). Geibel. Accordingly.11. Kharabadze’s contention fails because his conduct extended at least though January 7. 2005 is the controlling date for ex post facto purposes. the 15-point enhancement applies to Kharabadze.
(Solomonyan A. This is starkly confirmed in the January 28. § 2K2. . where this is precisely w hat Solom onyan asked Yeribekyan to achieve. This finding is not clearly erroneous.S. As the District Court found: The meeting and discussions on June 11. Spies.S. 2004 between Solomonyan. Solomonyan participated in conversations with both Davis and Yeribekyan where such quantities were discussed. the District Court’s finding should not be disturbed even if. a heightened standard should have been applied. 531). 281-82. as Solomonyan contends. 2004 effective date of U.S. Again. 4.1(b)(1)(E).1(b)(3)(A). 2005 conversation between Solomonyan and Yeribekyan.146 withdrew from the conspiracy. The District Court Properly Applied an Enhancement Based on the Number of Firearms Solomonyan’s attack on the District Court’s finding that the offense involved at least 200 firearms. (Solomonyan Br. § 2K2.S. (Solomonyan A. 29). he remained a member until the conspiracy ended in March 2005.G. several months after the November 1. in light of the overwhelming evidence that the offense involved at least 200 firearms. and Davis clearly disclose an intent by the two defendant conspirators to acquire in excess of 200 firearms. and that Solomonyan’s offense should therefore be increased by ten levels pursuant to U. 394).G. is equally unfounded. To the contrary.
2d 375.S.1.S. This challenge is meritless.1(a) of the Guidelines provides for a fourlevel offense level increase “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.G.” U.147 5.” United States v.G. In determining a defendant’s role. 959 F.S. (n. comment. Section 3B1. Among the factors bearing on whether a defendant is a “leader” are “the degree of discretion exercised by [the defendant].1(a). the degree of participation in planning or organizing the offense.” U.S. and the degree of control and authority exercised over the other members of the conspiracy. § 3B1. § 3B1. the nature and scope of the illegal activity. the claimed right to a larger share of the fruits of the crime. the nature of participation in the commission of the offense. Beaulieau. “the defendant need not be the manager of more than one other . 379-80 (2d Cir.1. the recruitment of accomplices. The District Court Properly Applied a Leadership Role Enhancement Solomonyan challenges the District Court’s application of a four-level enhancement based on a finding that Solomonyan was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive. a sentencing court should consider “the exercise of decision making authority. 1992). To warrant an enhancement under § 3B1.4). and the degree of control and authority exercised over others. the nature and degree of his participation in planning or organizing the offense.
3d 88.1 de novo. Armen Baregamyan (Tr. 1496-97). With respect to the Domestic Gun Trafficking Offenses. Solomonyan asked Nadirashvili (Tr.” United States v. 264-66). Payne. but we review the court’s findings of fact supporting its conclusion only for clear error. which Yeribekian did. 1995). 568 F. 376-82). and Spartak Yeribekyan (Tr. See.. Solomonyan asked Kharabadze to provide a price list of weapons (Tr. 342-43). Artur Barseghyan (Tr. Kharabadze A. 404-06. Ivezaj. Chvelidze (Tr. In this case.”). United States v. 449 (2d Cir. Over a 13-month period. e. 383-404) into the Overseas Arms Trafficking Conspiracy. (Tr.3d 433.g. 260-62. For example. Solomonyan was indisputably the ringleader of both the Overseas Arms Trafficking Conspiracy and the Domestic Gun Trafficking Conspiracy. United States v. 2009) (“In general. 900-02). 1212 (2d Cir. 562 F. we review a district court’s determination that a defendant deserves a leadership enhancement under § 3B1. Hertular. . 63 F. Factual determinations regarding the role a defendant played in an offense must be sustained unless clearly erroneous.”). 304-07. which Kharabadze did.3d 1200. He recruited and directed Kharabadze. 290-94.148 person. and Solomonyan directed Spartak Yeribekyan to take or cause to be taken photographs of overstock arms in Leninakan. 99 (2d Cir. 2009) (“We typically review a district court’s factual findings in support of a role enhancement for clear error. the District Court did not clearly err in finding that Solomonyan was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.
The argument is meritless. When applying an enhancement under the Sentencing Guidelines. and others to help him acquire guns. 45). nor must the court “recite any magic words to assure that [it has] applied the appropriate standard. . Solomonyan was the prime leader. Vorobeychik (Tr. 85 (2d Cir. 361-63).3d 81. and (ii) that the criminal activity involved five or more participants. Escotto. (2) had decision making authority. 1997) (describing obstruction of justice enhancement).” United States v. An organizer or leader need not be all powerful at all times. 336-40. If anyone was a leader in this activity. There are certainly more than five people involved in the conspiratorial activity that was presented to the court. 45-47).3d 115. or (4) exercised discretion. the District Court properly applied the four-level enhancement. Solomonyan also complains that the District Court did not specifically find that he (1) exercised control over others. Walsh. 1997). It is beside the point that. 121 (2d Cir. Thus. McQueen. of course the evidence clearly shows Mr. at particular points in time. (Solomonyan Br. Solomonyan took direction from other members of the conspiracy or was not in total control of others. 121 F. (Solomonyan Br. The District Court only must “make specific factual findings that (i) the defendant was an organizer or leader. Here the District Court did so when it found: I think the more appropriate category is an organizer or leader.” United States v. 119 F. (3) planned the activity.149 326-27). or was otherwise extensive. the District Court need not exhaustively parse the evidence.
the District Court properly found that Nadirashvili willfully testified falsely at trial as to a material matter when he denied that he intended to obtain firearms for Solomonyan. The Obstruction of Justice Enhancement Section 3C1.G.150 (Solomonyan A. pursuant to U. § 3B1. prosecution. the administration of justice during the course of the investigation.1. or sentencing of the instant offense of conviction. and (B) the obstructive conduct related to (I) the defendant’s offense of . The contentions are without merit. the Court made the proper findings that Solomonyan willfully testified falsely as to a material matter when he testified that he did not intend to obtain overseas arms for Davis.G.S.S. In Solomonyan’s case. the District Court improperly applied a two-point enhancement to their offense level for obstruction of justice pursuant to U. Thus. at sentencing. § 3C1. 6. 536).1 of the Guidelines provides that: If (A) the defendant willfully obstructed or impeded.1(b). a. or attempted to obstruct or impede. the District Court made adequate findings to support its ruling that he was an organizer or leader of criminal activity that involved five or more participants and was otherwise extensive. In Nadirashvili’s case.S. The District Court Properly Applied Enhancements for Obstruction of Justice Nadirashvili and Solomonyan contend that.S.
3d 172.3d 115. 2005).S. 74-75 (2d Cir. 62 F.” United States v.S.151 conviction and any relevant conduct. 147 F. § 3C1. 111 F. A court is not required to render its findings using any talismanic language.3d 67. and can simply rely on the fact that the defendant’s trial testimony was not believable. perjury. comment (n. 549 F.” United States v.” United States v. the obstruction of justice enhancement applies when a defendant testifying under oath “gives false testimony concerning a material matter with the willful intent to provide false testimony. Walsh. . This enhancement applies specifically to “committing .G. accord United States v. Canova. When a sentencing court imposes an obstruction enhancement. § 3C1.S.G. 2008) (noting that such findings may be made by a preponderance of the evidence). Kelly. United States v. 94 (1993). so long as “a general finding of obstruction . 329 (2d Cir. Dunnigan.1. tracks those factual predicates necessary to support a finding of perjury.S.3d 331. . 412 F. or (ii) a closely related offense. “separate findings of fact” are not required. Zagari. see also United States v. With respect to perjury.” U. 1998). 1997). 507 U.4(b)). rather than as a result of confusion. mistake or faulty memory. Salim. U.3d 307. 119 F. United States v. 1995) (internal quotation marks and citations omitted). 121-22 (2d Cir. increase the offense level by 2 levels. . Catano-Alzate.3d 41.1. 42 (2d Cir. . 87. 178-79 (2d Cir. 357 (2d Cir.S. An obstruction enhancement based on perjury must be supported by a finding that “the defendant’s statements unambiguously demonstrate an intent to obstruct. .
Salim. Nadirashvili’s false testimony was willful. Nadirashvili’s Obstruction The District Court did not clearly err in finding that Nadirashvili perjured himself at trial.3d 90. see also United States v. established that Nadirashvili did intend to obtain machineguns for Solomonyan. because it occurred under oath. United States v. 48 F. Cawley. b. 294). Nadirashvili clearly lied with respect to a material matter — his intent at the time of his offense — when he testified that he “didn’t want this deal to happen. 1995) (upholding obstruction adjustment where a . . 549 F. including Nadirashvili’s recorded telephone conversations with Solomonyan and Chvelidze. (Nadirashvili A. Nadirashvili wrongly contends that the District Court did not state its basis for the obstruction enhancement with sufficient clarity to permit appellate review because the .3d at 73. The evidence at trial. Accordingly. This Court has upheld the imposition of an obstruction of justice enhancement for false testimony at a sentencing hearing. for the purpose of persuading the jury that he was not guilty.” that he did not believe Chvelidze could possibly obtain firearms. 94 (2d Cir. and that he was lying to Solomonyan when he agreed to continue to search for weapons. 1438-43). at trial. defendant gave “completely unbelievable” testimony. notwithstanding the fact that the district court’s findings did not specifically mention each element of perjury). 76) is without merit. Nadirashvili’s contention that the District Court applied the two-point enhancement merely because Nadirashvili exercised his right testify in his defense (Nadirashvili Br. Moreover. (Tr.152 1997). .
337-38 (2d Cir.’” United States v. this testimony was “designed substantially affect the outcome of the case. Lincecum. and the jury so found.153 Court made its findings “summarily” and without citing to “any contradictory evidence or testimony.S. 220 F.” Dunnigan.3d at 121. 119 F. Plainly.” (Nadirashvili Br. Moreover. At his sentencing hearing.” United States v. 294). Williams. 2000) (quoting United States v. (Solomonyan A. 1996)). Solomonyan’s Obstruction The District Court did not clearly err in finding that Solomonyan perjured himself at a sentencing hearing.533.3d 334. 78). 80 (2d Cir.3d 77. Solomonyan’s testimony was willful because it occurred under oath at a hearing before the District Judge who was to sentence him. 507 U. The District Court is not required to “particularize what part of [the defendant’s] testimony was false. 466) and that he never intended to bring military weapons into the United States. its findings were adequate. Because the District Court did so here (Nadirashvili A. c. 535). and the two-level enhancement with respect to Nadirashvili should be affirmed. 486-87). Walsh. Solomonyan contends that the District Court’s findings were inadequate to support the enhancement because it did . 79 F. at 95. Solomonyan lied as to his intent at the time of his offense — a material matter — when he testified that he “did not intend to do [an overseas arms] deal with Kelly Davis” (Solomonyan A. (Solomonyan A. The recordings and other evidence in the trial established that Solomonyan did so intend. The Court need only “‘point to the obvious lie and find that the defendant knowingly made a false statement on a material matter.
Ramirez. this Court has found Guidelines errors to be harmless where the “the record suggest[ed] that the district court would impose the same sentence on remand. Although the sentencing judge in Jass had expressly stated that he would have imposed the same sentence with or without the disputed enhancement.3d 47. Therefore. but the record indicates clearly that the district court would have imposed the same sentence in any event.3d at 121. The argument fails because there is no requirement that the District Court “recite any magic words to assure that [it has] applied the appropriate standard. Appx.154 not specifically find that Solomonyan’s false testimony was “with willful intent to obstruct justice. Moreover.” even when the district court did not expressly say so. 533. 68 (2d Cir. the District Court made this finding in response to the Government’s request that the Court make “specific factual findings” that Solomonyan’s testimony was false “with respect to a material matter with willful intent. 7. 2009). 535). and the enhancement should be affirmed. 13 (2d Cir. 320 Fed.” (Solomonyan A. See United States v.” (Solomonyan A. 7.” (Solomonyan Br. 535).” United States v.” Walsh. The Court specifically found that Solomonyan testified falsely at a sentencing hearing “with respect to the essential element of intent involved in the violations with which he was convicted. 2009) (summary order). the District Court’s factual findings were adequate to support the two-point enhancement for obstruction of justice as to Solomonyan. 119 F. Jass. 51). . 569 F. the error may be deemed harmless. Harmless Error This Court has stated that where it “identif[ies] procedural error in a sentence.
Except where required elsewhere in the Guidelines. any error in applying these enhancements would have been harmless. (Solomonyan A. Because that “stacking” of sentences is permissible. U. Accordingly. 536). which is five levels above the highest offense level in the Guidelines sentencing chart. Under these circumstances. New Jersey.G. the District Court’s sentence violated the principle set forth in Apprendi v. because (1) there was no jury finding that his offense involved a destructive device and (2) the statutory maximum on Count One was five years’ imprisonment. § 5G1. Solomonyan’s argument should be rejected. a defendant’s sentence on multiple counts should run . 533. POINT XI The District Court Correctly “Stacked” Solomonyan’s Sentences Solomonyan argues that. The District Court did not sentence Solomonyan above the statutory maximum on any count of conviction. 530 U. even if the District Court had not applied certain offense level enhancements that Solomonyan challenges on appeal. A.S. Moreover. Apprendi does not prohibit a sentencing court from imposing consecutive sentences on separate counts of conviction to achieve a desired sentence. his Guidelines sentencing range would have still been life imprisonment. This is incorrect. 466 (2000).S. Applicable Law For defendants convicted on multiple counts.S.155 Solomonyan’s total offense level was 48.2 explains how the sentencing court should proceed. His sentence was far below that: 264 months’ imprisonment.
2(d) do not run afoul of Apprendi. 76-77 (2d Cir. In all other respects. United States v. but only to the extent necessary to produce a combined sentence equal to the total punishment. 82 (2d Cir. In such a case. 240 F. Put differently.’” United States v. this Court has recognized that the Sentencing Guidelines specifically instruct the district courts to stack sentences where the Guidelines range exceeds the statutory maximum on an individual conviction. the stacking provisions set forth in Section 5G1. U. United States v.3d at 135. 2002). United States v. except to the extent otherwise required by law. 136-37 (2d Cir. 240 F. . 135 (2d Cir. § 5G1. the combined length of the sentences. 2002). see also United States v.3d 74. 639-40 (2d Cir. 282 F. then the sentence imposed on one or more of the other counts shall run consecutively. 2001). this Court has observed that it is “aware of no constitutionally cognizable right to concurrent.S.3d 127.G.. 251 F. when the total punishment exceeds the statutory maximum on any of the counts of conviction. rather than consecutive.3d 78. White.3d 127. sentences on all counts shall run concurrently. sentences. McLean. Rivera.” U.e. Outen.156 concurrently if the count “carrying the highest statutory maximum is adequate to achieve the total punishment. 2002). Accordingly.S. Thus.” i.2(d).” Id.3d 622. § 5G1. moreover. White.S. But “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment. McLeod. 287 F. to the extent necessary to achieve the ‘total punishment. 286 F. See United States v.2(c). “the Guidelines require that the sentences run consecutively. 2001) (emphasis supplied).G.S.
Six.539). McLeod. 540). and Seven — to run concurrently. (Solomonyan A. this Court has expressly rejected constitutional challenges of exactly the sort mounted by Solomonyan here. Because none of the offenses for which Solomonyan was convicted carried a statutory maximum penalty sufficient to impose that sentence. The Court subsequently determined that Solomonyan’s total punishment would be 264 months’ incarceration. which carries a Guidelines sentence of life imprisonment. (Solomonyan A. (Solomonyan A. In McLeod. 120 months for Count Two. 251 F. Discussion Applying these standards. 539-40). 60 months for Count Three. he was sentenced to 60 months’ imprisonment on Count One. (Solomonyan A.3d at 82. this Court expressly held that . he was sentenced to 120 months’ imprisonment on each of Counts Five. Moreover. After reviewing all of the counts of conviction.533. In addition.157 B. None of those sentences exceeded the statutory maximum for the relevant offense. it found that Solomonyan’s total offense level was 48. required — by the Guidelines. 536). the court sentenced him by “stacking” his sentences on multiple counts of conviction. This practice is expressly authorized — indeed.” United States v. except for the last 36 months on Count Four. when required by the Guidelines (because the ‘total punishment’ exceeds the highest statutory maximum on any count). to run sentences consecutively. and 60 month for Count Four — all to run consecutively. holding that “Apprendi is inapplicable to a sentencing judge’s decision. Thus. there is no question that the District Court correctly sentenced Solomonyan.
158 the “preponderance of the evidence standard was properly applied to determinate [the defendant’s] relevant conduct, despite the resulting consecutiveness of his sentences.” Id. (internal quotation marks omitted). In fact, Solomonyan acknowledges that his argument is foreclosed both by the Guidelines and this Court’s prior decisions. (Solomonyan Br. 59). Accordingly, this claim should be rejected. CONCLUSION The judgments of conviction should be affirmed. Dated: New York, New York December 15, 2010 Respectfully submitted, P REET B HARARA, United States Attorney for the Southern District of New York, Attorney for the United States of America. D AVID B. M ASSEY, M ATTHEW L. S CHWARTZ, A NDREW L. F ISH, Assistant United States Attorneys, Of Counsel.
CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, the undersigned counsel hereby certifies that this brief does not comply with the typevolume limitation of Rule 32(a)(7)(B) but complies with this Court’s December 6, 2008 order stating that the Government may file a brief not to exceed 50,000 words. As measured by the word-processing system used to prepare this brief, there are 36,681 words in this brief. P REET B HARARA, United States Attorney for the Southern District of New York
A NDREW L. F ISH, Assistant United States Attorney
Case Name: U.S. v. Solomonyan Docket Number: 08-4211-cr(L)
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225 Broadway.CERTIFICATE OF SERVICE 2008-4211-cr(L) United States of America v. Suite 715 New York. Fasulo. Esq. Suite 700 New York. 120 East 56th Street Suite 1150 New York. Suite 715 New York. Shalley & DiMaggio 225 Broadway.com Attorney for Levan Chvelidze . NY 10007 (212) 537-9202 srginsberg@mac. Neuman.com Attorney for Ioseb Kharabadze Susan Tipograph.com Attorney for Christian Spies Kelly Sharkey. Esq. Esq. 26 Court Street Suite 2805 Brooklyn. NY 10013 212. Esq. New York 11242 (718) 858 8843 kelleysharkeyesq@verizon. 350 Broadway. NY 10013 (212)-966-5612 email@example.com Attorney for Dimitry Vorobeychik Herald Price Fahringer. Suite 2805 Brooklyn. Solomonyan I hereby certify that two copies of this Brief for the United States of America were sent by Regular First-Class Mail and Electronic delivery to: Louis Fasulo. Esq. Esq. 100 Lafayette Street. New York11242 (718) 875-3707 firstname.lastname@example.org email@example.com Seth Ginsburg. New York 10022 (212) 319-5351 dubnoe@aol. Esq. 26 Court Street. Suite 501 New York.com Attorney for Nikolai Nadirashvili James E. New York 10007 (212) 566-6212 firstname.lastname@example.org Attorneys for Arthur Solomonyan John Burke.
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