People v. Zgurski
| Citation | 73 Cal.App.5th 250,288 Cal.Rptr.3d 214 |
| Decision Date | 27 December 2021 |
| Docket Number | A160525 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Yahor ZGURSKI, Defendant and Appellant. |
| Court | California Court of Appeals |
Gene D. Vorobyov, San Francisco, by appointment of the Court of Appeal for Defendant and Appellant
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General for Plaintiff and Respondent
In 2018, a jury convicted Yahor Zgurski of using the personal identifying information of another person for an unlawful purpose. ( Penal Code, § 530.5, subdivision (a) ( section 530.5(a) ); undesignated statutory references are to the Penal Code.) The trial court reduced Zgurski's felony conviction to a misdemeanor and placed him on probation for three years.
On appeal, Zgurski contends there is insufficient evidence to support his conviction. He also contends that his probation term must be reduced to one year pursuant to a recent amendment to section 1203a, but in his reply brief, Zgurski acknowledges that this part of his appeal is moot. We affirm the judgment.
Zgurski came to the attention of the San Francisco District Attorney because of his involvement in a scheme to defraud consumers who used the internet to purchase a boat from a person ostensibly called Joshua Eisenberg.
In May 2014, Michael C. wanted to buy a boat, looked on eBay, and was directed to another internet site where he found a boat for sale that interested him. Michael sent an email inquiry to Joshua Eisenberg, who was listed as the boat owner.1 The two exchanged emails and spoke on the phone. Eisenberg offered to deliver the boat to Michael, who lived in New York. He told Michael that he would set up an escrow account in California with a company called ITRADER Global. Michael was to deposit money into that account and then, once the boat was delivered, Michael would call the escrow company and the funds would be released to Eisenberg. They negotiated a sale price of $30,500.
In June 2014, Michael instructed his bank to complete a wire transfer of funds to the account designated by Eisenberg. Eisenberg confirmed the transfer and sent Michael a certificate of title that appeared genuine. When Michael received confirmation of the transfer from his bank, it reflected that the money was sent to a bank account in California, but the beneficiary was GV National Trading Services rather than ITRADER Global. The boat was never delivered. Michael tried to contact Eisenberg with no success.
Meanwhile, in May 2014, Steve B. was living in Ohio when he attempted to buy a boat listed on eBay but was outbid. A few days later, Steve received an email from Josh Eisenberg, who said that the sale of the boat that Steve bid on fell through and inquired if Steve was still interested in buying it. After further discussion over email, they agreed on a sale price of $23,500.
Eisenberg told Steve that he wanted to use a third-party service he had used in the past called ITRADER Global. Eisenberg said that service would hold Steve's money until Eisenberg delivered the boat and Steve had the opportunity to look it over and make sure he was happy with it. Steve set up an account at ITRADER Global and authorized his bank to wire money to the account. Eisenberg sent Steve an email confirming that the money had been transferred and the boat would be delivered to Steve. When Steve received confirmation of the wire transfer from his bank, he learned that the money was wired to GV National Trading Services. The boat was never delivered to Steve and Eisenberg did not respond to calls or emails.
The district attorney in Suffolk County, New York began an investigation of the Eisenberg fraud scheme after Michael C. filed a complaint. The bank account that was used to defraud Michael C. and Steve B. was located in San Francisco at the West Castro branch of Bank of the West. It was opened in January 2014 and closed in July 2014, and the account holder was Alexander B. doing business as GV National Trading Services. For ease of reference, we will refer to this account as the GV National account.
The Suffolk district attorney's office contacted the San Francisco district attorney, and the Eisenberg fraud case was assigned to Pollie Pent, an inspector on the high-tech crimes task force. Pent obtained records pertaining to the GV National account from Bank of the West, which showed that Michael C. and Steven B. wired money into this account, and that money was wired from this account to a woman in Russia. Pent also obtained still photographs of a man at the bank conducting business in the account.
Through her investigation, Pent learned that the man who opened the GV National account used a Pennsylvania license, which contained Alexander B.’s name and an identification number for a valid driver's license belonging to a man named Loni P. Pent used this information to conduct a "deconfliction," which is a database search of an "Intelligence Clearinghouse" of ongoing fraud investigations to determine if other agencies are looking at the same information. The driver's license number used to open the GV National account was connected to a man named Vadzim Klimasheuski, who was the "target" of an FBI investigation in South Florida that involved bank fraud, drugs and weapons.
After additional research, Pent discovered that the name Alexander B. was also associated with the South Florida fraud investigation of Klimasheuski. Pent contacted Alexander B., who later testified at Zgurski's trial. Alexander B. reported that he did not open the GV National account or any other bank account on the West Coast. Nor did Alexander B. give anybody permission to use his name to open the GV National account or have any knowledge about a company called GV National Trading Services.
Pent found a "Facebook" page for Vadzim Klimasheuski, which led her to Zgurski, who was identified as a friend of Klimasheuski. Zgurski was easily recognizable as the man in the bank photographs conducting transactions in the GV National account. A Bank of the West employee also identified Zgurski as the man who opened the GV National account using the name Alexander B.
Through further investigation, Pent discovered that Zgurski and Klimasheuski were neighbors living on the same cul-de-sac in San Francisco. A phone record search showed that calls perpetrating the fraudulent boat transactions originated within a 25-meter radius of a location between the homes of these two men.
In February 2015, Zgurski was arrested and interviewed by Pent and an FBI special agent who was involved in the South Florida fraud investigation. At the outset of the interview, Zgurski waived his Miranda rights and stated that he wanted to talk to the investigators. Zgurski was provided the assistance of an interpreter, which he did not use. The interview was recorded and admitted into evidence at Zgurski's trial.2
Before asking questions, Pent stated that Zgurski had been arrested for conducting banking transactions in an account that people used to attempt to buy boats. Pent said she had evidence that Zgurski had gone into the account, withdrew money, and then wired the rest of the money to a woman in Russia. Zgurski denied doing those things, and also denied opening an account at Bank of the West in January 2014. Pent showed Zgurski several photographs that had been taken at Bank of the West. Zgurski grinned as he confirmed that he was the person in the photographs. Pent also told Zgurski that bank employees had identified him as the person who opened the account. Then Zgurski admitted that he opened the GV National account in January 2014. He told the officers that he "did it" because he "needed ... some money."
Zgurski said he did not use his own name to open the account because it was supposed to be in somebody else's name. He claimed not to remember what name he used, but he admitted that he did not know that person. Both officers pressed Zgurski to explain how he got the name that he used to open the account. Pent asked how Zgurski got the information of a person who he did not know, stating that this "guy does exist" and that he is "mad" because his name has been "flagged" by the authorities. Zgurski did not respond to Pent's question. When the FBI agent asked again how Zgurski got the name, Zgurski asked if he could "not answer" this particular question. Pent told him that he did not have to answer, reminding him of his Miranda rights. (See Miranda v. Arizona (1966) 384 U.S.436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)
After a pause, Zgurski said "okay," and then told the officers that his friend, Vadzim Klimasheuski, told him that he could make some money if he opened an account at Bank of the West in San Francisco and used the account to send money to Russia. In exchange for these services, Klimasheuski paid Zgurski $1000. Klimasheuski told Zgurski not to use his own name and gave him the ID to open the account. Zgurski admitted that he supplied a photo of himself and Klimasheuski gave him the ID a few weeks later. Zgurski did not know the purpose of the account or ask Klimasheuski any questions about the name on the ID. The ID was a Pennsylvania driver's license because that made things easier. The only question Zgurski asked was whether his role would be dangerous. Klimasheuski said there was no danger and not to worry.
Zgurski acknowledged that he opened the account in the name of Alexander B. He also confirmed that the account was opened in the name of a company, but he did not know why that name was used. Klimasheuski gave him the information to open the account, including the company name, the account holders’ phone numbers and their address. Klimasheuski...
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