U.S. v. Nishnianidze
| Decision Date | 26 August 2003 |
| Docket Number | No. 01-2621.,No. 01-2495.,01-2495.,01-2621. |
| Parties | UNITED STATES of America, Appellee, v. Giorgiy NISHNIANIDZE, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Elizabeth L. Bostwick, with whom Joseph S. Berman and Berman & Dowell were on brief, for appellant.
Samuel W. Buell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, were on brief, for appellee.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.
Giorgiy Nishnianidze raises a host of challenges to his extortion conviction. After careful review, we affirm.
Lewis Finfer and Judith Shea, a married couple, adopted an infant son, Alexander, from the country of Georgia in March 1996. They consulted with a Massachusetts adoption agency called Wide Horizons for Children, Inc., which in turn worked with Nishnianidze (pronounced nish-nee-ah-NID-zuh), an attorney in Georgia. Finfer and Shea paid $10,000 for the adoption — half to Wide Horizons and half to Nishnianidze for his legal services.
Finfer and Shea traveled to Georgia to pick up their son, staying with Nishnianidze at his home. Finfer and Shea asked to meet the birth mother but Nishnianidze told her that he did not know how to locate her. The adoption was without incident. Nishnianidze provided the couple with Georgian legal documentation of the adoption, including a document in which Alexander's birth mother relinquished all parental rights. These documents were recognized by a Massachusetts court that finalized the adoption after Finfer, Shea, and Alexander returned home.
Nishnianidze emigrated to Brooklyn, New York in October, 1998, seeking permanent residency from the Legacy Immigration and Naturalization Service. Finfer and Shea heard nothing from Nishnianidze until January 26, 1999, when he called their home and spoke to Shea. He said he was in Boston and asked to see the family. Shea told Nishnianidze to call Finfer, who then invited Nishnianidze to their home for dinner.
Finfer picked up Nishnianidze in downtown Boston and drove him to the family's home in Dorchester. That evening, on the pretense of documenting a successful international adoption, Nishnianidze filmed the family with a video camera he brought. Intimating that the birth mother was having "a rough time," he asked if the couple would provide financial support to the birth mother and her two children in Georgia. The couple refused.
At the end of the evening, Finfer drove Nishnianidze back to downtown Boston. During the car ride, Nishnianidze told Finfer that Alexander's birth mother was upset, might challenge the legality of the adoption, had made threats to Nishnianidze and Nishnianidze's family, and wanted $50,000 from Finfer and Shea. Finfer was upset by the conversation and told Nishnianidze it "sounded like blackmail."
Finfer relayed the conversation to Shea. The couple contacted an attorney the next day and met with the FBI on January 28, 1999. At this meeting, Finfer and Shea agreed to record their subsequent conversations with Nishnianidze. They also received advice from the agents about how to gather information from Nishnianidze. After this initial meeting, Finfer and Shea occasionally spoke with a single FBI agent about their conversations with Nishnianidze and received suggestions as to how to handle the discussions.
On the morning of January 29, 1999, Nishnianidze called Shea at home, and she recorded the conversation. Nishnianidze began by describing recent events in Georgia, including opposition and challenges to international adoptions. He stated that Alexander's biological mother was upset the boy had been adopted by an American family and had threatened harm to Nishnianidze and Nishnianidze's son if Alexander was not returned. Nishnianidze stated that he came to the United States because of the threats, and that the birth-mother requested "from me to take the child back." He told Shea that if she paid him $50,000 (to be given to the biological mother), the biological mother would guarantee not to pursue the child.
Nishnianidze stressed that he had been threatened and abused by Alexander's biological family, whom he described as "hungry," "homeless," and "crazy people," who were connected to the Georgian police. Shea stated that it was "[s]cary to think about ... people wanting Alexander back." Nishnianidze responded, "[I]t's very hard for, for you, okay?"
Near the end of the conversation, Nishnianidze told Shea that if the biological mother "don't receive money I don't know what will be happened." He told Shea to "be silence" and "not to make noisy." Nishnianidze advised her to borrow the $50,000 from a bank or from friends. The call ended when Shea told Nishnianidze she would discuss the matter with Finfer.
Later that day, Nishnianidze called again and spoke to Finfer, who recorded the call. Nishnianidze repeated that the biological family wanted $50,000 and encouraged Finfer to promptly pay whatever he could. Nishnianidze first said that his family in Georgia was in danger, then stated "maybe they will call you or come here I don't know what they can do."
Finfer told Nishnianidze that he was worried and asked, "Are you telling me that you're gonna take our child?" Nishnianidze responded, "Ah, I don't know what will be happen." Finfer concluded the call by telling Nishnianidze he would call him in New York the following week.
On February 3, Nishnianidze left a message at the couple's home asking them to call him at his Brooklyn residence. Finfer returned the call. In this recorded conversation, Nishnianidze asked, "What you decide?" Finfer told him that they had decided not to pay. Nishnianidze responded, "I think it would be ... worse for me and ah, also for your family." Nishnianidze told Finfer that the biological family knew Finfer and Shea's address and could send someone to the home. He continued:
They can take the child from yard or and they'll ah, request ah, twice more money. Or they can I don't know what they can do, everything they can do....
They can find ah, another people which can come not to make photos but to take child. And then you, you, you, you will, you will not ah, know what we do when it would be happen because they don't warn you....
They know address they will take ah, after one month, two months, five months, ah, one year I don't know, which time it would be happen.... [They told me to] warn them, that we will take the child ah, or something we will do it then.
Finfer stated he was concerned for his son's safety, and Nishnianidze again advised against going to the police or telling anyone about the situation. He stated, "If you are afraid for [Alexander] and his life in this case you must do right for son; you must pay." Nishnianidze concluded by saying Finfer should call him within one week if he decided to pay.
Finfer called Nishnianidze the next day and stated that he was afraid for himself and his family and had decided to pay. Over the next two weeks, Finfer and Nishnianidze spoke five times regarding the exchange of money. They agreed to meet at Boston's South Station to exchange $38,000.
In his final phone call on the evening of February 17, 1999, Nishnianidze told Finfer that he was sick and could not go to Boston to pick up the money. He said Finfer could send the money directly to the birth mother, but stated that he believed he could be arrested and did not want to touch the money.
On the morning of April 6, 1999, two New York FBI agents and a New York City Police Department detective went to the Manhattan apartment where Nishnianidze was staying. FBI agents in Boston had requested that they locate Nishnianidze, interview him and obtain any photographs or videotapes in his possession of children whose adoptions he had processed.
When they arrived at the apartment between 8:00 and 8:30 a.m., the agents knocked and identified themselves. Nishnianidze opened the door and they entered into a one-room apartment with a bed and two additional mattresses on the floor. Nishnianidze appeared to have been sleeping when he answered the door, and the agents observed Nishnianidze's son on a mattress on the floor where he had been sleeping and where he remained throughout the interview.
The agents (including one Russian speaker) informed Nishnianidze that they were investigating his contacts with a Massachusetts family and interviewed him for thirty to forty-five minutes. Nishnianidze talked about his involvement in international adoptions and his contacts with Finfer and Shea, and then answered follow-up questions. The agents asked Nishnianidze if he had any photographs or videotapes of the adopted children. An agent accompanied Nishnianidze as he searched the apartment and produced the video of Alexander. The agents and detective were all armed, and while Nishnianidze searched for the video, the detective removed his snub-nosed handgun from its holster and held it behind his back, reholstering it when the search was complete.
At some point during the interview, Nishnianidze's roommate arrived at the apartment. The detective asked him to wait in the hallway while the interview was completed and he agreed to do so. After giving Nishnianidze a receipt for the videotape and a birth announcement relating to another adoption, the interview ended.
Nishnianidze was arrested on May 17, 1999. He was charged with four counts (1) transmitting an interstate threat with the intent of extorting $50,000 in violation of 18 U.S.C. § 875(b); (2) transmitting an interstate threat in violation of 18 U.S.C. § 875(c); (3) traveling in interstate commerce to perform acts of extortion in violation of 18 U.S.C. § 1952; and (4)...
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