U.S. v. Andonian, s. 91-50622

• Decision Date: 19 July 1994
• Docket Number: Nos. 91-50622,91-50624,91-50625 and 91-50626,91-50623,s. 91-50622
• Citation: 29 F.3d 1432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nazareth ANDONIAN, Vahe Andonian, Ruben Saini, Raul Vivas, and Juan Carlos Seresi, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1432

29 F.3d 1432

UNITED STATES of America, Plaintiff-Appellee, v. Nazareth ANDONIAN, Vahe Andonian, Ruben Saini, Raul Vivas and Juan Carlos Seresi, Defendants-Appellants.

Nos. 91-50622, 91-50623, 91-50624, 91-50625 and 91-50626.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 1, 1993.

Submission Deferred Dec. 23, 1993.

Resubmitted Feb. 9, 1994.

Decided July 19, 1994.

Stanley I. Greenberg, Los Angeles, CA, for defendant-appellant Nazareth Andonian.

Jerry L. Newton, Newton & Newton, Hermosa Beach, CA, for defendant-appellant Vahe Andonian.

Edward L. Masry, Masry & Vititoe, Studio City, CA, for defendants-appellants Seresi and Saini.

Jason D. Kogan, Daron L. Pooch, Bird, Marella, Boxer, Wolpert & Matz, Los Angeles, CA, for defendant-appellant Vivas.

Jean Kawahara, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, BEEZER, and TROTT, Circuit Judges.

BEEZER, Circuit Judge:

The defendants appeal their jury convictions and sentences for conspiracy to commit money laundering and for money laundering in violation of 18 U.S.C. Secs. 371 and 1956(a)(1)(A)(i) and (B)(i). The government alleged the defendants organized and operated a vast and elaborate money laundering network, known by its participants as "La Mina," which laundered cash drug proceeds by purchasing, trading, and selling gold and then wire-transferring the funds out of the country. Over a three-year period, approximately $316 million were funneled to banks in Central and South America.

Raul Vivas, Juan Carlos Seresi, Vahe Andonian, and Nazareth Andonian were convicted of conspiracy to launder money (Count 2) and of individual acts of money laundering alleged in Counts 3-27. Ruben Saini was convicted of conspiracy to launder money (Count 2) and of individual acts of money laundering alleged in Counts 6-27. Saini was acquitted of money laundering alleged in Counts 3-5. None of the defendants was convicted on Count 1, which alleged conspiracy to aid and abet the possession and distribution of cocaine, in violation of 21 U.S.C. Secs. 841, 846 and 18 U.S.C. Sec. 2.

Vivas, Seresi, and the Andonians were each sentenced to 505 years in prison. Saini was sentenced to 27 years in prison.

The defendants appeal their convictions and sentences. They assign various errors to pretrial and trial proceedings and to their sentences. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm. ¹

I

At the request of the United States, Uruguay extradited Vivas on the original indictment in this case. After Vivas had been extradited, the grand jury returned the superseding indictment on which Vivas was ultimately tried. In a pre-trial motion, Vivas challenged the district court's jurisdiction to try him on the superseding indictment. The district court denied the motion, and Vivas appealed. We dismissed the appeal on the basis that the order was neither final nor subject to interlocutory appeal. United States v. Vivas, No. 90-50182 (9th Cir.1990).

Vivas argues that his trial on the superseding indictment violated the doctrine of specialty, because the indictment that formed the basis of his extradition contained fewer counts and alleged a conspiracy of narrower scope than the superseding indictment. The original indictment alleged in Count 1 conspiracy to aid and abet in the possession and distribution of cocaine and to launder money. The substantive money laundering counts against Vivas appeared in two groups. Counts 2-7 alleged individual substantive counts of money laundering in the form of shipping currency from New York, New York, to Los Angeles, California, on several dates between November 14, 1988 and December 12, 1988. Counts 8-12 alleged individual substantive counts of money laundering in the form of depositing currency into bank accounts in Los Angeles between November 15, 1988 and December 14, 1988.

The superseding indictment alleges the drug conspiracy in Count 1 and the money laundering conspiracy in Count 2. As in the original indictment, the substantive counts of money laundering appear in two groups. Counts 3-16 allege individual substantive counts of money laundering in the form of shipping currency from New York to Los Angeles on several dates between June 3, 1988 and December 12, 1988. Counts 13, 14, and 15 are identical to Counts 4, 6, and 7 in the original indictment. The remaining counts in this group (3-11, 12, and 16) are new, and three counts from the original indictment (2, 3, and 5) do not appear in the superseding indictment. Counts 17-27 of the superseding indictment allege substantive counts of money laundering in the form of depositing currency into bank accounts in Los Angeles between October 27, 1988 and December 20, 1988. Counts 19 and 25 are identical to Counts 10 and 12 of the original indictment. Nine of the remaining counts in this group (17, 18, 20-24, 26, and 27) are new, and three of the counts from the original indictment (8, 9, and 11) do not appear in the superseding indictment.

The superseding indictment also contains a greater number of alleged overt acts in furtherance of the conspiracy which roughly parallel the added substantive counts of money laundering. Vivas' alleged role in the conspiracy is described in more detail in the superseding indictment, with allegations that Vivas implemented the scheme to collect the currency proceeds of cocaine sales, use the proceeds to purchase gold, wire-transfer the proceeds from the gold to Uruguay, and then distribute the funds to cocaine traffickers and money launderers in Colombia.

II

We review de novo the district court's determination that the prosecution on the superseding indictment did not violate the doctrine of specialty. United States v. Khan, 993 F.2d 1368, 1372 (9th Cir.1993).

"The doctrine of 'specialty' prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite." United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988). The doctrine is based on principles of international comity: to protect its own citizens in prosecutions abroad, the United States guarantees that it will honor limitations placed on prosecutions in the United States. United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989). Our concern is with ensuring that the obligations of the requesting nation are satisfied. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.), cert. denied, 479 U.S. 1009, 107 S.Ct. 652, 93 L.Ed.2d 707 (1986). "Because of this, the protection exists only to the extent that the surrendering country wishes." Id. An extradited person may raise whatever objections the extraditing country is entitled to raise. Cuevas, 847 F.2d at 1426; Najohn, 785 F.2d at 1422.

We look to the language of the applicable treaty to determine the protection an extradited person is afforded under the doctrine of specialty. The treaty with Uruguay, pursuant to which Vivas was extradited, provides:

A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted ... unless ... the requested Party has manifested its consent to his detention, trial or punishment for an offense other than that for which extradition was granted....

Treaty on Extradition and Cooperation in Penal Matters, April 6, 1973, U.S.-Uru., art. 13, T.I.A.S. No. 10850 at 17-18 [hereinafter "Treaty"]. An extradited person, in any case, " 'may be tried for a crime other than that for which he was surrendered, if the asylum country consents.' " Najohn, 785 F.2d at 1422 (quoting Berenguer v. Vance, 473 F.Supp. 1195, 1197 (D.D.C.1979) (emphasis in original)).

III

Vivas argues that the doctrine of specialty was violated in two respects: first, he was not tried on the offenses for which he was extradited; and second, he was not tried on the facts that were presented to the Uruguay court.

A

Our prior decisions do not directly address the impact of the doctrine of specialty in a case involving a superseding indictment returned after the defendant has been extradited and alleging additional counts of the same substantive offense. Vivas urges us to hold that prosecution on a superseding indictment violates the doctrine absent an affirmative statement from the surrendering country authorizing trial on each count in the superseding indictment.

We agree with the government that the appropriate test for this case is "whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited." Cuevas, 847 F.2d at 1428 (citing United States v. Paroutian, 299 F.2d 486, 491 (2d Cir.1962)). The order of extradition at issue in Cuevas specifically authorized trial on a fifteen-count indictment alleging narcotics and money laundering violations. Appended to the order, however, was an ambiguous injunction referring to the "fiscal aspect[s]" of the case. We concluded that the doctrine of specialty was not violated by trial on all fifteen counts, because the extraditing country's court had acknowledged the integral relationship between the narcotics charges and the currency reporting charges. Id.; see also United States v. Sensi, 879 F.2d 888, 895-96 (D.C.Cir.1989) (applying test of "whether the requested state has objected or would object to prosecution" for the offenses).

Although it did not involve a superseding indictment, the approach of Cuevas applies to the situation presented here. In Cuevas we relied on Paroutian, in which the Second Circuit rejected a specialty challenge to the defendant's trial on an indictment other than that...