U.S. v. Nadirashvili

• Decision Date: 23 August 2011
• Docket Number: 09–0610–cr (CON),09–3801–cr (CON).,Docket Nos. 08–4211–cr (L),09–1493–cr (CON),09–0074–cr (CON),09–3266–cr (CON)
• Citation: 655 F.3d 114
• Parties: UNITED STATES of America, Appellee,v.Nikolai NADIRASHVILI, also known as Nikoloz Nadirashvili, also known as Nikush, Levan Chvelidze, Dimitriy Vorobeychik, Ioseb Kharabadze, also known as Soso, Christiaan Dewet Spies, also known as David, and Artur Solomonyan, also known as Alex, Defendants–Appellants,Joseph Colpani, also known as Joe, Michael Guy Demare, also known as Michel, Armen Razmik Barseghyan, Spartak Vahagn Yeribekyan, Levon Solomonyan, Allah McQueen, Rajab Chavis, also known as Jabs, also known as Keith Chavis, Garegin Gasparyan, also known as Garik, Michael Jimenez, also known as Mike, Nieman Myles, also known as Luis, William Jesus Thomas, Vakhtang Machitidze, Tigran Gevorgyan, also known as Tiko, Armand Abramian, also known as Armo, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

655 F.3d 114

UNITED STATES of America, Appellee,

v.Nikolai NADIRASHVILI, also known as Nikoloz Nadirashvili, also known as Nikush, Levan Chvelidze, Dimitriy Vorobeychik, Ioseb Kharabadze, also known as Soso, Christiaan Dewet Spies, also known as David, and Artur Solomonyan, also known as Alex, Defendants–Appellants,Joseph Colpani, also known as Joe, Michael Guy Demare, also known as Michel, Armen Razmik Barseghyan, Spartak Vahagn Yeribekyan, Levon Solomonyan, Allah McQueen, Rajab Chavis, also known as Jabs, also known as Keith Chavis, Garegin Gasparyan, also known as Garik, Michael Jimenez, also known as Mike, Nieman Myles, also known as Luis, William Jesus Thomas, Vakhtang Machitidze, Tigran Gevorgyan, also known as Tiko, Armand Abramian, also known as Armo, Defendants.

Docket Nos. 08–4211–cr (L)

09–0074–cr (CON)

09–0610–cr (CON)

09–1493–cr (CON)

09–3266–cr (CON)

09–3801–cr (CON).

United States Court of Appeals, Second Circuit.

Argued: Feb. 9, 2011.Decided: Aug. 23, 2011.

Herald Price Fahringer (Erica T. Dubno, Nicole Neckles, on the brief), Fahringer & Dubno, New York, NY, for Defendant–Appellant, Nadirashvili.Susan V. Tipograph, Thomas Eddy, New York, NY, for Defendant–Appellant, Chvelidze.Kelly J. Sharkey, Brooklyn, New York, for Defendant–Appellant, Vorobeychik.James E. Neuman, New York, NY, for Defendant–Appellant, Kharabadze.John Burke, Brooklyn, NY, for Defendant–Appellant, Spies.Seth Ginsberg (Louis V. Fasulo, Fasulo, Shalley, and DiMaggio, New York, NY, on the brief), New York, NY, for Defendant–Appellant, Solomonyan.David B. Massey, Assistant United States Attorney (Preet Bharara, United States Attorney, on the brief, Matthew L. Schwartz and Andrew L. Fish, of counsel), United States Attorney's Office for the Southern District of New York, New York, for Appellee.Before: WINTER, POOLER, and HALL, Circuit Judges.WINTER, Circuit Judge:

Nikolai Nadirashvili, Levan Chvelidze, Dimitriy Vorobeychik, Ioseb Kharabadze, Christiaan Dewet Spies, and Artur Solomonyan appeal from their convictions after a jury trial before Judge Holwell. Appellants were convicted of a variety of weapons trafficking offenses, described in greater detail below. These appeals followed.

We address three of the many issues raised by appellants, finding, after due consideration, their remaining arguments to lack merit. We hold that the evidence was sufficient to support all of the convictions and reject a vagueness-as-applied argument raised by Kharabadze. However, the district court employed the wrong standard of proof at sentencing in imposing increases to Solomonyan's base offense level under Section 2K2.1(b)(1)(E) and (b)(3)(A) of the Federal Sentencing Guidelines. We therefore vacate Solomonyan's sentence and remand for resentencing. Otherwise, we affirm.

BACKGROUND

a) The Evidence

Because this is an appeal from a jury trial, we briefly describe the evidence in the light most favorable to the government. See United States v. Gomez, 580 F.3d 94, 97 (2d Cir.2009).

From February 2004 until March 2005, the government conducted an investigation into a suspected weapons trafficking ring with the aid of confidential source Kelly Davis. Davis posed as a middleman for buyers of firearms and explosives while cooperating with the government. Upon the government's direction, David resumed prior conversations with Spies about Spies' efforts to obtain something “Russian made” for Davis. Spies put Davis in touch with Solomonyan, who in turn contacted Kharabadze. Using court-authorized wiretaps, the government recorded calls between Solomonyan and Kharabadze in which Kharabadze said, “[e]verything has been put on hold” because “government forces ... relocated [to the Russian side] and there's no making a deal with them.” Solomonyan reported back to Spies about the “obstacles.” A few days later, however, Solomonyan told Spies he was dealing with “very serious people” and that the deal was “ninety-nine point nine percent.”

In May 2004, Davis, Spies, and Solomonyan discussed how to obtain and ship “grenades,” “warheads,” “missiles,” and “launchers,” and Solomonyan repeatedly asked Davis to create an order list. The following month, Solomonyan asked Kharabadze to create a price list because he “ha[d] to show [the buyer] something real.” Kharabadze agreed to create the list and told Solomonyan he could pick it up the following morning. The next day, before leaving to attend a meeting with Davis and Spies, Solomonyan visited Kharabadze's apartment building for approximately an hour. At the meeting with Davis and Spies, Solomonyan wrote something on a piece of paper, handed it to Davis, and told him to memorize it. In addition to discussing the weapons on the list, Solomonyan also told Davis that he had “overstayed” his visa and asked whether Davis could help. The meeting was resumed two days later, when the three discussed weapons, dimensions, shipping options, and prices in some detail.

Later that month, Solomonyan spoke over the phone with a man named Artur Barseghyan about “exercises taking place [in Leninakan, Armenia]” in which “everything that Georgia owned was dumped there. And it's being actively taken out of there.” Six months later, in December 2004, Solomonyan spoke to Armen Baregamyan, who was in Azerbaijan, about “merchandise” that would go from Leninakan to Georgia to the United States. In January 2005, Davis, at the direction of the FBI, told Solomonyan and Spies that he was “under a lot of pressure” and that the “time limit is two weeks.” He also said that he had green cards for Solomonyan and Spies, but could not deliver them until he got the “products.”

Over the following two weeks, Solomonyan made contact with a man in Armenia and managed to obtain digital photographs by email of various weapons that were allegedly available, including a mortar launcher, anti-tank gun, and several missile launchers. At a meeting in March 2005, Solomonyan showed these photos to Davis, and the FBI arrested Solomonyan and Spies.

As the events above were unfolding, the government instructed Davis to also try to obtain machine guns and semi-automatic rifles already in the United States. In July 2004, Solomonyan and Spies spoke about buying new and used “apartments,” which the government contended was code for machine guns. On September 11, 2004, Davis gave money to Solomonyan to purchase guns. The same day, Solomonyan called Nadirashvili to ask whether Nadirashvili knew where he could purchase “cars ... with automatic transmission[s].” Solomonyan explained that he had “been talking to a dealer for a week now” and that a “man came today, gave me the money,” but that the dealer had vanished at the last minute. Nadirashvili said, “I understand what you are talking about,” and told Solomonyan he would call Chvelidze to see if he could arrange anything. Nadirashvili immediately called Chvelidze. After some initial confusion during which time Chvelidze thought Nadirashvili was talking about actual cars, Chvelidze caught on and told Nadirashvili that he could not get them that day, but to “[t]ell me if you want to place an order or something.” Nadirashvili relayed this information to Solomonyan. Solomonyan called Chvelidze the following day to verify that Nadirashvili “told [Chvelidze] about the cars.” Chvelidze confirmed this, and said he would try to help. Solomonyan also spoke to Nadirashvili again, who said he would “walk around Brighton” to “see if there's anything there.” Neither Nadirashvili nor Chvelidze ultimately obtained any firearms for Solomonyan.

Solomonyan also spoke with Vorobeychik on September 12. Vorobeychik informed Solomonyan that he had told a third party, “[Solomonyan] will call you. Don't be afraid of what he's going to talk to you about.” Solomonyan said, “I'll call him now,” and immediately placed a phone call to Allah McQueen. There was some confusion while Solomonyan tried to get McQueen to understand what he meant by “big trucks with ... fully automatic transmission.” However, after Solomonyan said, “Listen, of course I am not talking about vehicles,” McQueen said he understood what they were talking about. Over the next week, Solomonyan and McQueen had a number of phone conversations in which they spoke about setting up a deal involving “dogs,” “puppies,” an “AK,” “dog food,” and “an Israeli,” which the government argued was code. On September 30, Vorobeychik asked Solomonyan, “[c]an they really get it?” and Solomonyan responded, “Well, I only need two pieces.” Vorobeychik later told law enforcement agents that “they” referred to McQueen. In a conversation in October, Vorobeychik and Solomonyan discussed the possibility of “build[ing] the empire” by dealing directly with McQueen. McQueen ultimately provided Solomonyan and Spies with three firearms. Solomonyan and Spies also obtained five additional firearms, apparently without Vorobeychik's assistance.

b) The Verdict and Sentencing

The jury convicted Solomonyan, Spies, and Kharabadze of engaging in a conspiracy to traffic in foreign defense articles, in violation of 22 U.S.C. § 2778(b)(1)(A)(ii) and (c) and 18 U.S.C. § 922(a)(4), and of trafficking in foreign defense articles (or aiding and abetting thereof), in violation of 22 U.S.C. § 2778(b)(1)(A)(ii) and (c). Solomonyan, Spies, Vorobeychik, Nadirashvili, and Chvelidze were convicted of engaging in a domestic firearms trafficking conspiracy, in violation of 18 U.S.C. § 922(a)(1)(A) and ( o ), of firearms trafficking (or aiding and abetting thereof), in violation of 18 U.S.C. § 922(a)(1)(A) and of interstate firearms trafficking (or aiding and abetting thereof), in violation of 18 U.S.C. § 924(n). Solomonyan and Spies were also convicted of illegal transfer and possession of a machine gun (or aiding and abetting thereof), in violation of 18 U.S.C. § 922( o), and being illegal aliens in possession of a firearm (or aiding and abetting thereof), in violation of 18 U.S.C. § 922(g)(5). The district court sentenced...