Professional Documents
Culture Documents
09-0074-cr(con), 09-0610-cr(con),
09-1493-cr(con), 09-3266-cr(con), To Be Argued By:
09-3801-cr(con) DAVID B. MASSEY
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.—
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
ii
PAGE
B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1. There Was Sufficient Evidence of
Kharabadze’s Intent. . . . . . . . . . . . . . . . . . . 40
2. There Was Sufficient Evidence that the
Price List Included Munitions List Items
and a Machinegun or Destructive Device. . . 43
3. 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. . 45
4. The Duration of Kharabadze’s
Participation in the Scheme. . . . . . . . . . . . . 47
5. The Government Was Not Required to
Prove that Kharabadze Had Direct
Contact with Any Weapons Suppliers in
Eastern Europe or Elsewhere. . . . . . . . . . . . 50
6. Count Two: Aiding and Abetting and
Pinkerton Liability. . . . . . . . . . . . . . . . . . . . 51
a. Aiding and Abetting . . . . . . . . . . . . . . . . 51
b. Pinkerton. . . . . . . . . . . . . . . . . . . . . . . . . 53
POINT II — The Evidence Was Sufficient to Support
the Jury’s Verdicts on the Domestic Gun
Trafficking Offenses . . . . . . . . . . . . . . . . . . . . . . . . 54
A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 55
1. Unlicensed Firearms Dealing. . . . . . . . . . . . 55
iv
PAGE
T ABLE OF A UTHORITIES
Cases:
Apprendi v. New Jersey,
530 U.S. 466 (2000).. . . . . . . . . . . . . . . . . . . . . . 155
Bryan v. United States,
524 U.S. 184 (1998).. . . . . . . . . . . . . . . . . . . . . . . 42
Buie v. Sullivan,
923 F.2d 10 (2d Cir. 1990).. . . . . . . . . . . . . . . 90, 93
California v. Brown,
479 U.S. 538 (1987).. . . . . . . . . . . . . . . . . . . . . . 128
California v. Trombetta,
467 U.S. 479 (1984).. . . . . . . . . . . . . . . . . . . . . . . 90
Chapman v. United States,
500 U.S. 453 (1991).. . . . . . . . . . . . . . . . . . . . . . . 66
Colon v. Kuhlmann,
865 F.2d 29 (2d Cir. 1988).. . . . . . . . . . . . . . . . . . 90
Columbia Natural Resources, Inc. v. Tatum,
58 F.3d 1101 (6th Cir. 1995). . . . . . . . . . . . . . . . . 66
ix
PAGE
Santos v. Keane,
1997 WL 414121 (S.D.N.Y. July 24, 1997). . . . 110
Skilling v. United States,
130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . 64, 66
In re United States (Coppa),
267 F.3d 132 (2d Cir. 2001).. . . . . . . . . . . . . . . . 102
United States v. Ali,
68 F.3d 1468 (2d Cir. 1995).. . . . . . . . . . . . . . . . . 43
United States v. Aloi,
511 F.2d 585 (2d Cir. 1975).. . . . . . . . . . . . . . . . . 81
United States v. Amer,
110 F.3d 873 (2d Cir. 1997).. . . . . . . . . . . . . . . . . 66
United States v. Aulet,
618 F.2d 182 (2d Cir. 1980).. . . . . . . . . . . . . . . . 109
United States v. Autuori,
212 F.3d 105 (2d Cir. 2000).. . . . . . . . . . . . . . . . . 27
United States v. Bahadar,
954 F.2d 821 (2d Cir. 1992).. . . . . . . . . . . . . . . . 110
United States v. Bakhtiar,
994 F.2d 970 (2d Cir. 1993).. . . . . . . . . . . . . . 91, 94
United States v. Bari,
750 F.2d 1169 (2d Cir. 1984).. . . . . . . . . . . . . 82, 83
United States v. Bautista,
23 F.3d 726 (2d Cir. 1994).. . . . . . . . . . . . . . . . . 121
xi
PAGE
Preliminary Statement
Artur Solomonyan, Christiaan Spies, Ioseb
Kharabadze, Dimitry Vorobeychik, Nikolai Nadirashvili,
and Levan Chvelidze (collectively, the “Appellants”)
appeal from judgments of conviction entered on August
20, 2008 (Nadirashvili), December 29, 2008 (Chvelidze),
February 13, 2009 (Vorobeychik), April 8, 2009
(Kharabadze and Solomonyan), and July 28, 2009 (Spies),
in the United States District Court for the Southern District
of New York, following a five-week trial before the
Honorable Richard J. Holwell, United States District
Judge, and a jury.
Indictment S1 05 Cr. 327 (RJH) (the “Indictment”) was
filed on January 29, 2007, in seven counts. The Indictment
charged the Appellants and others with various weapons
trafficking offenses that may be divided into two catego-
ries.
In the first category, Solomonyan, Spies, and
Kharabadze were charged in Counts One and Two with
military arms trafficking offenses involving a plot to
import rocket-propelled grenades, surface-to-air missiles,
machine guns, and other military arms from Eastern
3
special assessment.
On March 11, 2009, Judge Holwell sentenced
Kharabadze to a term of 108 months’(nine years’) incar-
ceration, to be followed by 3 years’ supervised release, and
imposed a $200 mandatory special assessment.
On April 16, 2009, Judge Holwell sentenced Spies to
a term of 240 months’ (20 years’) incarceration, to be
followed by 3 years’ supervised release, and imposed a
$700 mandatory special assessment.
Solomonyan, Spies and Kharabadze are currently
serving their sentences. Vorobeychik, Nadirashvili and
Chvelidze have completed their terms of imprisonment
and are currently on supervised release.
Statement of Facts
A. The Government’s Case
1. 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. The first of these
schemes — the Overseas Arms Trafficking Offenses —
occurred as follows:
From February 2004 to March 2005, Solomonyan and
Spies believed that a man named Kelly Davis was an
illegal arms trafficker who wanted to buy surplus rocket-
propelled grenades (“RPGs”), surface-to-air missiles
(“SAMs”), machine guns, and other weapons from Eastern
6
*
“Tr.” refers to the trial transcript; “GX” refers
to a Government Exhibit offered in evidence; “[Name]
Br.” and “[Name] A.” refers to the named defendant’s
brief on appeal and appendix; “SA” refers to the supple-
mental appendix filed with this brief.
9
*
Davis’s writing (GX 17) was not admitted into
evidence at trial (Tr. 948-49), but was submitted to the
District Court for the sentencings of Solomonyan, Spies,
and Kharabadze. Davis’s writing included the words “AK-
47"; “Flyer,” shorthand for RPGs; “Stinger,” referring to
Stinger SAMs, “Ground to ground,” and “Rockets.”
(SA 121).
12
*
An Government expert witness, Alexander
Melikishvili, testified that, in the summer of 2004, this
border region, South Ossetia, experienced a “flare-up in
military activities.” (Tr. 1154-56).
13
arms (Tr. 397) and that the proposed deal with Davis was
“quite serious.” (Tr. 399).* For the proposed deal,
Solomonyan told Yeribekyan, Solomonyan wanted to
obtain surplus weapons that were being moved “to the area
around Leninakan,” where “[a] lot of overstock goes out
unaccounted for under the pretense of [military] exer-
cises.” (Tr. 395-96). In particular, Solomonyan advised,
the deal would involve “those buckets that you put on your
shoulders,” referring to RPGs, and advised that Davis
wanted 200 of them. (Tr. 402-03). Solomonyan asked
Yeribekyan to “get closer” to a particular Russian individ-
ual who had access to the weapons, or to identify a soldier
with “[a]ny rank, a fake one, as long as he has access to
the warehouse” where the RPGs were stored. (Tr. 403).
Several days later, on February 2, 2005, 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.
(Tr. 387-89). 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 [immigra-
tion] papers to reduce you to a complete zero” and cause
Solomonyan to be arrested. (Tr. 389-91). Referring to the
pressure that Davis was applying to complete the deal,
Solomonyan said, “He’s probably bluffing. I’ll wait and
bluff him too. Let’s see how long this game goes on. I’ve
been playing it for the past year.” (Tr. 391).
16
*
Spies was carrying this locker key at the time of his
arrest. (Tr. 443-44).
23
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. Specifi-
cally, 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. 40, 47); (2) that the
weapons in question were on the United States Munitions
List (Kharabadze Br. 39, 47) or were a “machinegun” or
“destructive device” (Kharabadze Br. 53); (3) that
Kharabadze himself negotiated prices or transfers of such
weapons, or had a financial stake in the deal (Kharabadze
Br. 39, 46); (4) that Kharabadze played any role in the
weapons brokering scheme after June 9, 2004 (Kharabadze
Br. 43); (5) that Kharabadze spoke to any overseas any
arms dealers overseas about a weapons deal (Kharabadze
Br. 42, 44-45); (6) or that Kharabadze knew that
Solomonyan was not licensed to deal in firearms.
(Kharabadze Br. 53).
Each of these arguments fails. There was ample
evidence that Kharabadze, Solomonyan, and Spies partici-
pated in the conspiracy charged in Count One, that
Kharabadze aided and abetted Solomonyan and Spies in
committing the substantive brokering offense charged in
26
*
The Office of Defense Trade Controls is the office
within the State Department which regulates the importa-
tion and exportation of defense articles. See generally 22
C.F.R. §§ 120.1, 129.7. The Office of Defense Trade
Controls is now named “the Directorate of Defense Trade
Controls.” Citations herein are to the Code of Federal
34
5. Pinkerton Liability
Under the Supreme Court’s decision in Pinkerton v.
United States, 328 U.S. 640 (1946), “once a conspiracy
has been established, the criminal liability of its members
‘extends to all acts of wrongdoing occurring during the
course of and in furtherance of the conspiracy.’” United
States v. Gallerani, 68 F.3d 611, 620 (2d Cir. 1995)
(quoting United States v. Bryser, 954 F.2d 79, 88 (2d Cir.
1992)). Under Pinkerton, 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.”
Rosario v. United States, 164 F.3d 729, 734 (2d Cir. 1998)
(quoting United States v. Pimentel, 83 F.3d 55, 58 (2d Cir.
1996)).
Pinkerton is not a “broad principle of vicarious liability
that imposes criminal responsibility upon every co-con-
spirator for whatever substantive offenses any of their
confederates commit.” United States v. Bruno, 383 F.3d
65, 90 (2d Cir. 2004) (citing United States v. Jordan, 927
F.2d 53, 56 (2d Cir. 1991)). Under Pinkerton, rather, “co-
conspirator liability was carefully confined to substantive
offenses that are (a) committed ‘in furtherance of the
conspiracy,’ and (b) ‘reasonably foresee[able]’ by the co-
conspirator sought to be held responsible ‘as a necessary
or natural consequence of the unlawful agreement.’”
United States v. Jordan, 927 F.2d at 56 (quoting
Pinkerton, 328 U.S. at 647-48). “Whether a particular
crime is foreseeable and in furtherance of the conspiracy
is a factual matter for the jury.” United States v. Romero,
39
v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)). That means
that “one whose conduct is clearly proscribed” by a law
may not challenge the law on the ground of vagueness.
United States v. Strauss, 999 F.2d 692, 698 (2d Cir. 1993);
accord, e.g., United States v. Amer, 110 F.3d 873, 878-79
(2d Cir. 1997).
In determining Congress’s intent in the context of a
void-for-vagueness challenge, a court relies upon custom-
ary tools of statutory interpretation: most notably the
language of the statute itself. See e.g., Posters ‘N’ Things,
Ltd. v. United States, 511 U.S. 513, 517-19 & n.6 (1994);
United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)
(rejecting “as applied” challenge to Major Fraud Act), as
well as the statute’s legislative history, Nadi, 996 F.2d at
550 (deeming common-sense interpretation of “value of
the contract” to be “confirmed by the statute’s legislative
history”); United States v. Amer, 110 F.3d at 878 (chal-
lenge 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”).
“The classification of a federal statute as void for
vagueness is a significant matter,” Columbia Natural
Resources, Inc. v. Tatum, 58 F.3d 1101, 1105 (6th Cir.
1995). “‘[E]very reasonable construction must be resorted
to, in order to save a statute from [being declared]
unconstitutional[l]y [vague].’” Columbia Natural Re-
sources, Inc. v. Tatum, 58 F.3d at 1105 (quoting Chapman
v. United States, 500 U.S. 453, 464 (1991)); see Skilling,
130 S. Ct. at 2929 (“It has long been our practice, how-
ever, before striking a federal statute as impermissibly
vague, to consider whether the prescription is amenable to
67
*
Kharabadze’s attempt to draw a parallel to 18
U.S.C. § 922(a)(1) (Kharabadze Br. 30) is misplaced,
because that statute does not contain a brokering clause
similar to that in the amended Section 2778.
72
see also United States v. Rosa, 11 F.3d 315, 341 (2d Cir.
1993). As this Court has stated, “well-recognized is the
proposition that joint trials serve the public interest in
economy, convenience, and the prompt trial of the ac-
cused.” United States v. Turoff, 853 F.2d 1037, 1039 (2d
Cir. 1988). Joint trials serve important purposes: they
“conserve[ ] judicial resources, alleviate[ ] the burdens on
citizens serving as jurors, and avoid[ ] the necessity of
having witnesses reiterate testimony in a series of trials.”
United States v. Lyles, 593 F.2d 182, 191 (2d Cir. 1979)
(quoting United States v. Borelli, 435 F.2d 500, 502 (2d
Cir. 1970)). As the Supreme Court has also recognized,
It would impair both the efficiency and the
fairness of the criminal justice system to
require . . . that prosecutors bring separate
proceedings, presenting the same evidence
again and again, requiring victims and
witnesses to repeat the inconvenience (and
sometimes trauma) of testifying, and ran-
domly favoring the last-tried defendants
who have the advantage of knowing the
prosecution’s case beforehand. Joint trials
generally serve the interests of justice by
avoiding inconsistent verdicts and enabling
more accurate assessment of relative cul-
pability—advantages which sometimes
operate to the defendant’s benefit. Even
apart from these tactical considerations,
joint trials generally serve the interests of
justice by avoiding the scandal and inequity
of inconsistent verdicts.
79
C. Discussion
The District Court acted well within its discretion in
denying the severance motions. The Appellants were
indicted together and charged in overlapping conspiracies,
with Solomonyan and Spies at the hub of both. The fact
that Nadirashvili, Chvelidze, and Vorobeychik had lower
levels of culpability and a lesser quantity of proof com-
pared to Solomonyan and Spies does not, standing alone,
constitute sufficient basis for a severance. United States v.
Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990). Even if
Nadirashvili, Chvelidze and Vorobeychik had been tried
separately, all the conduct of their co-conspirators
Solomonyan and Spies in furtherance of the Domestic Gun
Trafficking Offenses would have been admissible against
them. United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.
1984); see also United States v. Nersesian, 824 F.2d 1294,
1304 (2d Cir. 1987). In addition, 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, Chvelidze,
and Vorobeychik to explain the background of the rela-
tionship between Solomonyan, Spies, and Davis, because
Davis was the purported buyer of the overseas arms as
well as the domestic guns. See United States v. Villegas,
899 F.2d 1324, 1347 (2d Cir. 1990) (finding no prejudicial
spillover where evidence regarding the furtherance of the
conspiracy would have been admitted at a severed trial);
Bari, 750 F.2d at 1178 (denying motion to sever even “the
least active, but nevertheless fully implicated conspirator”
because the evidence would have been admissible at a
severed trial); United States v. Rahman, 854 F. Supp. 254,
262 (S.D.N.Y 1994) (“Once such proof is shown to be
83
(SA 116).
2. Davis’s Availability To Testify at Trial
On March 5, 2007, the District Court selected a jury for
trial in this matter. On or about the evening of March 5,
2007, the Government learned that Davis had been
hospitalized after an apparent suicide attempt and notified
the District Court and the Appellants. (SA 11). On March
8, 2007, with the consent of the Government and the
Appellants, the Court declared a mistrial. (SA 25-26).
On June 5, 2007, the Court held a hearing on the issue
of whether Davis was available to testify. Two psycholo-
gists who had examined Davis testified. At the end of the
hearing, the Court authorized Spies to issue a subpoena for
Davis’s trial testimony. (SA 34). Thereafter, the Govern-
ment made Davis available so that the Appellants could
call him as a witness at trial in June and July 2007.
(Tr. 137). Neither the Appellants nor the Government
called Davis to testify at trial.
3. Trial Testimony
At trial, the Appellants extensively cross examined
three law enforcement agents — FBI Special Agents
Mario Pisano and Cliff Carruth, and ATF Special Agent
Ken Keener — concerning Davis’s destruction of the
recordings and his renumeration and expectation of a
reward.
a. Testimony Concerning the
Destroyed Recordings
Special Agents Carruth and Pisano testified about
Davis’s destruction of the recordings. Special Agent
88
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, Kharabadze argues that
the District Court should have declared a mistrial because
of the Government’s belated production of telephone
records that, he says, would have proved that he did not
make international calls to broker arms deals. The District
Court properly denied Kharabadze’s motion. 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, 2004. Accordingly,
Kharabadze was in no way prejudiced by the government’s
belated production.
A. Relevant Facts
As described above, on April 23, 2004, 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. Specifically, Kharabadze advised
Solomonyan that Kharabadze “found out a few things,”
including the fact that the efforts to obtain arms “has been
temporarily put on hold” for an uncertain period. (Tr. 252).
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.”
(Tr. 252). Kharabadze attributed the problem to “the
peacekeeping Kantemirovskaya Division” and noted that
95
*
To the extent that Kharabadze’s brief can be
construed to raise a Brady claim, it should be rejected for
an additional reason, as well. To demonstrate a Brady
violation, “a defendant must show: (1) the Government,
either willfully or inadvertently, suppressed evidence; (2)
the evidence at issue is favorable to the defendant; and (3)
the failure to disclose this evidence resulted in prejudice.”
In re United States (Coppa), 267 F.3d 132, 140 (2d Cir.
2001). Besides being unable to demonstrate prejudice, as
discussed above, Kharabadze cannot show that the Gov-
ernment “suppressed” evidence, as the material was
ultimately made available to the defense in time to be used
102
(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 im-
port 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 Muni-
tions 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
127
White, 552 F.3d 240, 246 (2d Cir. 2009) (“To secure
reversal on a flawed jury instruction, a defendant must
demonstrate both error and ensuing prejudice.”) (quoting
United States v. Quinones, 511 F.3d 289, 313-14 (2d Cir.
2007)); United States v. Mulder, 273 F.3d 91, 105 (2d Cir.
2001); United States v. Pujana-Mena, 949 F.2d 24, 27 (2d
Cir. 1991).
In reviewing jury instructions, this Court does not look
only to the particular words or phrases questioned by the
defendant, but must “‘review the instructions as a whole to
see if the entire charge delivered a correct interpretation of
the law.’” United States v. Carr, 880 F.2d 1550, 1555 (2d
Cir. 1989) (quoting California v. Brown, 479 U.S. 538,
541 (1987)); United States v. Mulder, 273 F.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, 30 F.3d 276, 284 (2d Cir. 1994)).
Although this Court reviews a preserved claim of error
in jury instructions de novo, it will reverse a conviction
“only where appellant can show that, viewing the charge
as a whole, there was a prejudicial error.” United States v.
Tropeano, 252 F.3d 653, 657-58 (2d Cir. 2001).
C. Discussion
1. Spies’s Challenges
As Spies readily acknowledges, the portions of the
District Court’s charge to which he objects are commonly
used by district courts. (See Spies Br. 27, 31-32). Indeed,
these instructions properly state the law and could not have
caused prejudicial error.
129
*
As set forth in Point I above, the AECA regulations
define “brokering activities” to mean “acting as a broker
as defined in § 129.2(a)” and “includes the financing,
132
A. Relevant Facts
At the sentencing hearings of Kharabadze,
Solomonyan, and Spies, the District Court made detailed
rulings concerning the application of the Guidelines. As an
initial matter, the District Court found the Overseas Arms
Trafficking Offenses — Counts One and Two — should
be grouped pursuant to U.S.S.G. § 3D1.2. (Kharabadze A.
651; Solomonyan A. 530; Spies A. 74). The District Court
then proceeded to calculate the offense levels for Counts
One and Two. With regard to Count Two, the District
Court found that the total offense level was 26, pursuant to
U.S.S.G. § 2M5.2(a)(1). (Kharabadze A. 651; Solomonyan
A. 530; Spies A. 74).
Because Count One of the Indictment charged a
conspiracy with two objects — (1) engaging in the busi-
ness of brokering activities with respect to the import and
transfer of foreign defense articles, and (2) conspiracy to
transport a machinegun or a destructive device — the
District Court applied U.S.S.G. § 1B1.2(d), which pro-
vides:
A conviction on a count charging a conspir-
acy 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 con-
spired to commit.
U.S.S.G. § 1B1.2(d). Because, in this case, the jury verdict
did not establish which of the two objects was the object
of the conspiracy charged in Count One, the District Court
134
of the acts necessary for the offense at the time they were
arrested in March 2005. (Kharabadze A. 656; Solomonyan
A. 532; Spies A. 76).
The District Court also increased the offense levels of
Solomonyan and Spies based on their roles in the offense.
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, pursuant to
U.S.S.G. § 3B1.1(a). (Solomonyan App. 536). 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, pursuant
to U.S.S.G. § 3B1.1(b). (Spies A. 75-76).
Finally, the District Court ruled that the same Guide-
lines calculation could be reached with respect to
Kharabadze, Solomonyan, and Spies based on the “rele-
vant conduct” analysis of U.S.S.G. § 1B1.3(a)(2).
(Kharabadze A. 656; Solomonyan A. 532-33; Spies A.
76).
Accordingly, the District Court determined that the
total offense levels of Kharabadze, Solomonyan, and Spies
were 32, 48, and 45, respectively. (Kharabadze A. 656;
Solomonyan A. 533, 536; Spies A. 76). Based on a
criminal history category of I for each, the Court found
that the Guidelines ranges of Kharabadze, Solomonyan,
and Spies were 121 to 151 months’ imprisonment
(Kharabadze A. 656), life imprisonment (Solomonyan A.
533), and life imprisonment (Spies A. 76), respectively.
137
B. Discussion
Applying these standards, there is no question that the
District Court correctly sentenced Solomonyan. After
reviewing all of the counts of conviction, it found that
Solomonyan’s total offense level was 48, which carries a
Guidelines sentence of life imprisonment. (Solomonyan
A.533, 536). The Court subsequently determined that
Solomonyan’s total punishment would be 264 months’
incarceration. (Solomonyan A. 540). Because none of the
offenses for which Solomonyan was convicted carried a
statutory maximum penalty sufficient to impose that
sentence, the court sentenced him by “stacking” his
sentences on multiple counts of conviction. Thus, he was
sentenced to 60 months’ imprisonment on Count One; 120
months for Count Two; 60 months for Count Three; and
60 month for Count Four — all to run consecutively,
except for the last 36 months on Count Four. (Solomonyan
A.539). In addition, he was sentenced to 120 months’
imprisonment on each of Counts Five, Six, and Seven —
to run concurrently. (Solomonyan A. 539-40). None of
those sentences exceeded the statutory maximum for the
relevant offense.
This practice is expressly authorized — indeed,
required — by the Guidelines. Moreover, this Court has
expressly rejected constitutional challenges of exactly the
sort mounted by Solomonyan here, holding that “Apprendi
is inapplicable to a sentencing judge’s decision, when
required by the Guidelines (because the ‘total punishment’
exceeds the highest statutory maximum on any count), to
run sentences consecutively.” United States v. McLeod,
251 F.3d at 82. In McLeod, this Court expressly held that
158
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
P REET B HARARA,
United States Attorney for
the Southern District of New York
Louis Bracco
Record Press, Inc.
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. Herald Price Fahringer, Esq.
Fasulo, Shalley & DiMaggio 120 East 56th Street
225 Broadway, Suite 715 Suite 1150
New York, New York 10007 New York, New York 10022
(212) 566-6212 (212) 319-5351
loulegal@aol.com dubnoe@aol.com
_________________________
Sworn to me this RENEE ANDERSON
December 15, 2010 Record Press, Inc.
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NADIA R. OSWALD HAMID New York, New York 10018
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