U.S. v. Ziskin, 02-50443.

• Decision Date: 15 December 2003
• Docket Number: No. 02-50443.,02-50443.
• Citation: 360 F.3d 934
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis ZISKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

360 F.3d 934

UNITED STATES of America, Plaintiff-Appellee, v. Louis ZISKIN, Defendant-Appellant.

No. 02-50443.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2003.

Filed December 15, 2003.

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Charles M. Sevilla, Cleary & Sevilla, San Diego, California, for the Appellant.

Jean M. Mohrbacher, Assistant U.S. Attorney, Los Angeles, California, for the Appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge Presiding. D.C. No. CR-00-00852-CAS-6.

Before: Ruggero J. ALDISERT,^* Richard C. TALLMAN and Johnnie B. RAWLINSON, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

This is an interlocutory appeal from an Order of the United States District Court for the Central District of California denying Appellant Louis Ziskin's motion to dismiss on double jeopardy grounds three counts of an indictment for conspiring to import, possess and distribute "ecstasy" in violation of 21 U.S.C. §§ 963 and 846 and engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. Ziskin contends that the district court erred in denying his motion to dismiss the conspiracy counts (Counts 1 and 8, respectively) because he had already been convicted under an earlier indictment for the conspiracy charged in this second indictment. He also argues that the district court improperly failed to dismiss the CCE count (Count 13) because the conspiracy for which he was convicted in the prior indictment is a lesser-included offense of the CCE charge in this indictment.

As a threshold matter, we must determine the appropriate standard of review. We conclude that the district court's denial of Ziskin's motion to dismiss based on double jeopardy is reviewed de novo, but the district court's underlying factual determinations are reviewed for clear error. Our primary responsibility is to decide whether the district court committed reversible error in determining in this fact-driven case that Ziskin participated in two distinct conspiracies — one covered in the prior adjudicated case and one encompassed in the present indictment. We hold that the district court did not err.

The United States District Court for the Central District of California had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction under the Abney collateral order exception to 28 U.S.C. § 1291. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (holding that rejection of a criminal defendant's double jeopardy defense may be appealed before final judgment).

I.

This case involves the largest-ever United States government seizure of the drug 3,4-methylenedioxymethamphet amine, more commonly known as ecstasy.

In late 1998, Louis Ziskin established himself as a major ecstasy importer in the Los Angeles area, participating in and leading a large and sophisticated operation that imported the drug from sources in the Netherlands by way of other countries in Europe. Initially, Ziskin flew to Europe carrying large amounts of cash, purchased ecstasy and then flew back to the United States with the drugs.

By early 1999, Ziskin had enlisted Tamer Ibrahim and Alexander Maimon to travel with him to Europe to purchase ecstasy for cash. At first, they paid for the drugs by pooling their money and carrying the cash with them to Europe — a simple magnification of the method already used by Ziskin. But with Ibrahim and Maimon on board, Ziskin's operation grew progressively more complex. As investors in the scheme, Ibrahim and Maimon began to accompany Ziskin to Europe to purchase large amounts of ecstasy and arrange to have it shipped back to the United States via Federal Express or another courier service. Each Federal Express box could contain up to 50,000 tablets of ecstasy. Later, the trio shipped cocaine to Europe in exchange for shipments of ecstasy.

During the course of this operation, Ibrahim introduced Ziskin to Mounir Deiri, who located mailing addresses in the Los Angeles area to which the ecstasy packages could be sent. Deiri received, stored and divided up the ecstasy. Deiri sometimes distributed it for Ziskin and Ibrahim and collected proceeds for the sales. Deiri also handled the shipment of cocaine from the American end of the business. Tamer Ibrahim's cousin, John Ibrahim, assisted Deiri with many of these duties, even lining up two storage units — one for Ziskin's share of drugs and one for Tamer Ibrahim's share. Deiri and John Ibrahim supervised various couriers, including Dwayne Sanker, Lance White, Lori Lynne Johnson, Sonya McDaniel and Amenah Jackson, who used their own addresses to receive the ecstasy before turning it over to Deiri or John Ibrahim. Ziskin compensated Deiri with ecstasy and a $60,000 Cartier watch.

Throughout 1999, the United States Customs Service ("USCS") intercepted numerous Federal Express and DHL packages containing multi-kilogram amounts of ecstasy sent from European countries to various commercial mailbox centers in the Los Angeles area. In mid-July 1999, the USCS made a controlled delivery of one of the packages to one such commercial mailbox center. After Deiri picked up the package of ecstasy and attempted to deliver some of the shipment to one of Ziskin's customers, the USCS arrested Deiri. Tamer Ibrahim hired a lawyer to defend Deiri against federal charges in the United States District Court for the Central District of California and shared the costs with Ziskin and Deiri. At the time of Deiri's arrest, Tamer Ibrahim and Ziskin also began to have problems with one another.

Deiri stayed in jail for about a month, during which the pace of ecstasy transactions slowed substantially. He was released from jail on bond in late August 1999, the same time Ziskin returned from a trip to Europe. Ziskin offered Deiri $250,000 to leave the United States to work with Ziskin's drug contacts in Europe, but Deiri rejected the offer. Ziskin gave Deiri and Tamer Ibrahim large quantities of ecstasy to jumpstart transactions. By October 1999, the conspiracy's trafficking had picked up again and Ziskin and Tamer Ibrahim had set up their own crews in Amsterdam.

In late December 1999, the USCS intercepted three ecstasy-filled packages from France, all bound for Los Angeles. Couriers Johnson, McDaniel and Jackson picked them up. McDaniel and Jackson were arrested on December 21, 1999, but they agreed to cooperate with the USCS to deliver the packages to Deiri as planned. Deiri instructed the couriers to deliver the packages to John Ibrahim. After that delivery, the USCS seized the packages, searched the apartments of Deiri, John Ibrahim and Maimon, and arrested John Ibrahim. Including what it found at the two storage units, the USCS seized more than 700 pounds of ecstasy and more than $1 million cash on December 22, 1999.

The government produced evidence that these seizures drove Ziskin and Tamer Ibrahim apart. Deiri told government investigators that Tamer Ibrahim, Maimon and Deiri became disenchanted with Ziskin. Deiri believed Ziskin owed him $1.2 million to compensate for the losses Deiri sustained in the December 1999 seizures. Deiri said that he and Tamer Ibrahim broke away from Ziskin at that point to establish their own, separate drug-trafficking operation.

At first, Deiri and Tamer Ibrahim tried the same methods they had used while working with Ziskin, but with different people. Deiri and Tamer Ibrahim enlisted a new cocaine supplier in the person of Jose Antonio Cortes. While lying to Ziskin to cover up his new drug-trafficking operation, Tamer Ibrahim sent Joseph Yavetz and Michael Helo to the Netherlands to export ecstasy via Federal Express. When Yavetz and Helo were arrested in Germany in February 2000, Ziskin became angry because he realized that Tamer Ibrahim had started a new enterprise without him.

The arrests of Yavetz and Helo prompted Deiri and Tamer Ibrahim to look for a different means of importing ecstasy—one that would also provide for larger shipments than the air courier method. David Reziniano told Deiri and Tamer Ibrahim about a plan that would allow millions of ecstasy tablets to be shipped at once rather than just the 50,000 tablets that could be sent in each Federal Express package. The new idea was (1) to ship large quantities of ecstasy from Europe to the United States through South Korea; (2) to conceal the drugs in clothing and other legitimate merchandise; and (3) to bribe international customs officials to allow passage. This scheme concealed the fact that the shipments originated in the Netherlands, the leading source country for ecstasy. Ziskin was told about this plan before the December 1999 seizures, but he declined to adopt it.

Deiri and Tamer Ibrahim, however, agreed to try it with Jiha Ryu and Min Sung Jin, two Korean importers who had relationships with shipping companies in France and elsewhere. Joseph Gilboa delivered boxes of ecstasy to the particular shipping company designated by Jin, and the company sent the bulk shipments as air freight from Europe to South Korea. In South Korea, the ecstasy was packaged among clothing and other legitimate merchandise and invoice documents were altered. Ryu and Jin bribed Korean customs officials. Eventually, the shipments arrived at a bonded warehouse in Los Angeles, where a United States Customs agent had been bribed to ensure safe passage of the packages.

In February 2000, Tamer Ibrahim and Deiri tested the new method with a small shipment hidden in socks inside a Federal Express box. The box was repackaged in South Korea and then sent to Los Angeles without detection. In early March 2000, Ibrahim and Deiri successfully shipped a larger amount of ecstasy from France to South Korea to Los Angeles. From then on, Tamer Ibrahim and Deiri increased the size of the shipments and ceased using Federal Express boxes. Over the next...