300 F.3d 286 (2nd Cir. 2002), 00-1444, U.S. v. Aleskerova

Docket Nº:00-1444(L), 00-1526(XAP).
Citation:300 F.3d 286
Party Name:UNITED STATES of America, Appellee-Cross-Appellant, v. Natavan ALESKEROVA, Defendant-Appellant-Cross-Appellee, Aydyn Ibragimov, aka
Case Date:August 08, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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300 F.3d 286 (2nd Cir. 2002)

UNITED STATES of America, Appellee-Cross-Appellant,

v.

Natavan ALESKEROVA, Defendant-Appellant-Cross-Appellee,

Aydyn Ibragimov, aka "Aidyn," aka "Aideen," Defendant.

Nos. 00-1444(L), 00-1526(XAP).

United States Court of Appeals, Second Circuit

August 8, 2002

Argued May 25, 2001.

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Richard M. Asche, (Russell M. Gioiella, Jack T. Litman, Todd B. Terry, on the brief), Litman, Asche & Gioiella, LLP, New York, N.Y., for Defendant-Appellant-Cross-Appellee Natavan Aleskerova.

Alexander H. Shapiro, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, and Baruch Weiss, Assistant United States Attorney, on the brief), New York, N.Y., for Appellee-Cross-Appellant.

Before: WALKER, Chief Judge, KATZMANN and CUDAHY,1 Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

Defendant Natavan Aleskerova appeals from a jury verdict convicting her of two counts of possession of stolen property, in violation of 18 U.S.C. § 2315, and one count of conspiracy to possess, conceal, and sell stolen property, in violation of 18 U.S.C. § 371. Aleskerova, a citizen of Azerbaijan, was sentenced by the United States District Court for the Southern District of New York (Loretta A. Preska, District Judge) principally to eleven months of imprisonment and three years of supervised release.

On appeal, Aleskerova challenges (1) the sufficiency of the evidence to support her convictions and (2) the admission of similar bad act evidence pursuant to Fed.R.Evid. 404(b). In a cross-appeal, the government contends principally that, in sentencing the defendant, the district court erred in (1) reducing the loss amount by depreciating the artwork's value because of an earlier, unrelated theft and (2) departing downward to render the defendant eligible to apply for asylum.

We affirm the convictions, but remand for resentencing.

BACKGROUND

This appeal adds another episode to the saga of European art that disappeared at

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the close of World War II. During the war, the Bremen Kunstverein (the "Bremen Museum") secreted over 1000 drawings in the Karnzow Castle, located north of Berlin, Germany. In 1945, soldiers of the Soviet army looted the castle and removed the hidden artwork. Some years later, the KGB donated fourteen of these drawings, including works attributed to such masters as Albrecht Diirer and Rembrandt Harmenszoon van Rijn, to the National Fine Arts Museum of Baku, Azerbaijan (the "Baku Museum"). Shortly after they were exhibited there in 1993, twelve drawings originally from the Bremen Museum (the "Bremen drawings") and 200 other works of art (the "Baku Pieces") disappeared from the Baku Museum.

Two years later, Aleskerova and her husband, co-defendant Aidyn Ibragimov, met over dinner in Istanbul, Turkey with Masatsugu Koga, a Japanese businessman. After dinner, Koga went to Ibragimov's hotel room for about one hour. Koga's nurse, Taeko Kishi, later saw photographs of the Baku Pieces and discovered Koga's notes on eight Bremen drawings written on stationery from the hotel in Istanbul.

On May 21, 1996, Koga entered the United States. Two days later, Ibragimov and Aleskerova arrived in New York and stayed in Brooklyn with Rovchan Charifov, Aleskerova's son from a previous marriage. By chance, Ibragimov met Jakov Ifraimov, a former acquaintance from Azerbaijan, who also lived in Brooklyn. Upon Ibragimov's request, Ifraimov agreed to store business papers for Ibragimov in his apartment, where he lived with his ex-wife Iskana Mardakhayeva. Later, while Aleskerova waited on the street, Ibragimov and Ifraimov took a package and locked briefcase up to Ifraimov's apartment, where the items remained, hidden in a bedroom closet, throughout the next year.

On April 1, 1997, Koga again arrived in New York. Two days later, Ibragimov retrieved objects from the briefcase for a meeting with an "Asian" businessman. In May 1997, Aleskerova returned to Brooklyn and stayed in her son's apartment with her friend Lilia Gousseinova. In a telephone conversation, Ibragimov instructed Aleskerova to "check out something." The next day, Aleskerova went to Ifraimov's apartment and asked Mardakhayeva to show her the suitcase. Mardakhayeva left Aleskerova alone with it for several minutes. Aleskerova departed, leaving the suitcase behind. Gousseinova, who had surreptitiously listened in on the earlier telephone conversation between Aleskerova and Ibragimov, testified that this visit to Ifraimov's apartment was not a social call.

At about the same time, Koga presented photographs of twelve drawings to the German Embassy in Tokyo. The German Ministry of Foreign Affairs asked Dr. Anne Roever-Kann, Curator of Prints and Drawings at the Bremen Museum, to review these photographs. She identified eight drawings as having been stolen from the Bremen Museum during the war. In June 1997, Koga faxed a letter to the Bremen Museum, offering to sell the art for six million dollars. Roever-Kann responded by fax agreeing to view the drawings, but warned him that no one, other than the Bremen Museum, would be willing to purchase the art because of its wellknown history as stolen war booty. On July 31, 1997, Koga arrived in Bremen with Mahito Ogo, his associate and translator, and met with Roever-Kann and Dr. Rudolf Blaum, Chairman of the Board of Directors of the Bremen Museum. Koga indicated that he had acquired the art with a "Russian partner" and that the art was stored in a safe deposit box in a bank in New York.

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Subsequent to this meeting, Koga and Roever-Kann arranged for Roever-Kann to view the art in New York City. On September 3, 1997, Ogo told Roever-Kann that the meeting could not take place before September 8. The following day, however, Ogo agreed to a meeting on September 5, at 2:30 p.m. at the Grand Hyatt Hotel in Manhattan ("Grand Hyatt"), where Koga was staying. He informed Roever-Kann that "the wife of the Russian partner" would be bringing the key to the safe deposit box in which the drawings were stored. In response to Roever-Kann's request that they meet in the morning, Ogo insisted on meeting at 2:30 "because the wife of the Russian partner is not in earlier." British Airways records indicated that on September 4, 1997, Aleskerova booked a flight from Baku to New York, via London, scheduled to depart that night at 9:20 and to arrive at Kennedy Airport at 1:40 p.m. the following day. Customs records showed that Aleskerova passed through customs at 2:21 p.m. on September 5.

On September 4, 1997, Ibragimov called Ifraimov to tell him that a person, who was already en route via airplane, would pick up the suitcase and package the following day. The next day, Ibragimov called Ifraimov and asked him to meet a businessman at the Grand Hyatt because the person who was supposed to retrieve the suitcase had been delayed. Leaving the suitcase at his apartment, Ifraimov went to the Grand Hyatt and met Koga. After Koga handed him twelve photographs, the men called Ibragimov. Ibragimov gave Ifraimov the combination to the locked suitcase and instructed him to match each photograph to drawings in the suitcase. After Koga told him that they had to wait for people "from Germany," Ifraimov left the hotel room and waited for about an hour and a half.

Meanwhile, Roever-Kann, now accompalied by a Japanese interpreter and an undercover agent of the United States Customs Service, met Koga and Ogo in the rand Hyatt lobby. Ogo told them that he viewing would take place in an apartment in Brooklyn. Koga, Ogo, Ifraimov, and Ifraimov's driver left in a white car and Roever-Kann, the Customs agent, and the interpreter followed in a taxi. Upon instructions from the Customs agent's superiors, however, Roever-Kann, the agent, and the interpreter returned to Manhattan. When Roever-Kann failed to appear in Brooklyn, Koga and the others drove back to the Grand Hyatt. After exchanging several phone calls, Roever-Kann and Koga rescheduled the viewing for September 8.

Telephone records introduced at trial indicated that on September 5, a phone call was placed to the Grand Hyatt from Aleskerova's son's apartment about fifty minutes after Aleskerova passed through customs. A second call from the same place was made to the Grand Hyatt one hour later.

On September 7, Aleskerova went to Ifraimov's apartment and explained that her plane had been delayed in London, even though airline records indicated that it had actually arrived on time. Ifraimov showed Aleskerova the drawings and demanded to know what was going on. Ifraimov testified that Aleskerova did not respond but instead looked at the drawings, saying "[t]his is good . . . . it's a very good one." Ifraimov asked Aleskerova to take his place and bring the drawings to the meeting the next day. She refused, stating "[t]his is not my business. . . . You have been asked to do it, . . . so take it." Aleskerova then left the apartment.

On September 8, Ifraimov delivered six drawings to Koga in his hotel room and then went to the hotel cafe. After Roever-Kann met with Koga and inspected

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the art, Customs agents seized the six drawings. Koga was arrested the next day and subsequently pled guilty to participating in a conspiracy to sell the drawings from the Baku and Bremen Museums. By the end of that week, Ifraimov turned over the remaining art to federal prosecutors. Ibragimov has not been found.

On October 6,1997, Aleskerova returned to the United States and was met at Kennedy Airport by her son. Customs agents who were alerted to her arrival followed the vehicle as it left the airport. Aleskerova and her son noticed the surveillance on the...

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