U.S. v. Nosov

• Decision Date: 31 July 2001
• Docket Number: No. S2 00 CR. 314(RLC).,S2 00 CR. 314(RLC).
• Citation: 153 F.Supp.2d 477
• Parties: UNITED STATES of America v. Alexander NOSOV, a/k/a "Sasha Dlinni," Vasiliy Ermichine, a/k/a "Vassya," a/k/a "Blondine," and Natan Gozman, a/k/a "Shmunka," Defendants.
• Court: U.S. District Court — Southern District of New York

153 F.Supp.2d 477

UNITED STATES of America v. Alexander NOSOV, a/k/a "Sasha Dlinni," Vasiliy Ermichine, a/k/a "Vassya," a/k/a "Blondine," and Natan Gozman, a/k/a "Shmunka," Defendants.

No. S2 00 CR. 314(RLC).

United States District Court, S.D. New York.

July 31, 2001.

COPYRIGHT MATERIAL OMITTED

Mary Jo White, United States Attorney for the Southern District of New York, New York City, Robert B. Buehler, Assistant United States Attorney, Of Counsel, for the United States of America.

Nalven & Schacht, Astoria, NY, Alexei Schacht, Of Counsel, for Defendant Alexander Nosov.

Amsterdam & Branden, New York City, Valerie S. Amsterdam, Of Counsel, for Defendant Vasiliy Ermichine.

OPINION

ROBERT L. CARTER, District Judge.

Defendant Alexander Nosov moves: to dismiss the indictment filed against him; to sever his trial from that of his co-defendants; for an order directing the government to provide the defendant with the identity of a particular witness and with additional discovery; and to allow him permission to join in motions made by co-defendants. Defendant Vasiliy Ermichine moves to suppress his post-arrest statements and joins in any motions filed by his co-defendants. With certain exceptions, which will be explained in greater detail below, the government opposes these motions.

BACKGROUND

The government alleges that the defendants were all members of an organized crime group and that, in connection with their membership in that group, the defendants were involved with, inter alia, the kidnapping and murder of an individual named Sergei Kobozev. On March 27, 2000, a grand jury returned an indictment in this case that charged defendants Nosov and Natan Gozman in five counts with (i) kidnapping Kobozev in aid of racketeering, (ii) murdering Kobozev in aid of racketeering, (iii) conspiring to kidnap Kobozev, (iv) kidnapping Kobozev, and (v) using and carrying a firearm during and in relation to the aforementioned crimes.¹ In May, 2000, the United States government submitted a request to the German government for the extradition of Nosov based upon these charges.

On September 11, 2000, a grand jury returned a superseding indictment that was virtually identical to the first indictment. The only significant difference was the addition of Ermichine as a defendant in all counts. In December, 2000, the United States government was notified that the German government had agreed to extradite Nosov to stand trial in this country on the charges contained in the initial indictment. On May 2, 2001, the government obtained a second superseding indictment (the "S2 Indictment") that adds two racketeering charges against defendants Ermichine and Gozman. These new counts list four separate acts of racketeering. The murder and kidnapping of Kobozev are identified as one of the acts, while the other three acts consist of a kidnapping, an extortion, and a robbery. Defendant Nosov is not charged in either of these new counts.

Defendant Nosov's Motions

(1) Nosov's Motion to Dismiss the Indictment or, in the Alternative, to Sever His Trial

Nosov claims that because the S2 Indictment includes charges that were not contained in the indictment upon which he was extradited from Germany, the new indictment should be dismissed based on the "rule of specialty." According to the rule of specialty, an extradited defendant may only be tried for the crimes for which extradition was granted. See Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir. 1973) (Friendly, J.); United States v. Medina, 985 F.Supp. 397, 400 (S.D.N.Y.1997) (Scheindlin, J.). Nosov contends that the German government was unaware of the two supplemental counts contained in the S2 Indictment when it agreed to his extradition, and that the indictment, therefore, should be dismissed.

Nosov's argument fails for two reasons. As a preliminary matter, it appears that he lacks standing to make this petition. Nosov is correct that the circuit courts are split as to whether a defendant, as opposed to the country from which he was extradited, may invoke the specialty doctrine.² Compare United States v. Kaufman, 874 F.2d 242, 243 (5th Cir.1989) (holding that "only an offended nation can complain about the purported violation of an extradition treaty"); and Demjanjuk v. Petrovsky, 776 F.2d 571, 584 (6th Cir.1985) (same), vacated on other grounds, 10 F.3d 338 (6th Cir.1993); with United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.1986) (holding that "the person extradited may raise whatever objections the rendering country might have"); and United States v. Levy, 905 F.2d 326, 328 n. 1 (10th Cir. 1990) (same); and United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir.1995) (same). Decisions from the Second Circuit —the binding authority for this court— suggest that a defendant would not have standing to invoke the rule of specialty. See United States v. Reed, 639 F.2d 896, 902 (2d Cir.1981) (holding that "absent protest or objection by the offended sovereign, [a defendant] has no standing to raise violation of [an extradition treaty] as an issue"); Shapiro, 478 F.2d at 906 (noting that "[a]s a matter of international law, the principle of specialty has been viewed as a privilege of the asylum state, designed to protect its dignity and interests, rather than a right accruing to the accused").

The court, however, need not consider this issue in great detail, because even if Nosov had standing, his argument would fail. The rule of specialty is only violated if a superseding indictment charges new "separate offenses" against the defendant. United States v. Sturtz, 648 F.Supp. 817, 819 (S.D.N.Y.1986) (Stanton, J.). The two new counts contained in the S2 Indictment implicate only Ermichine and Gozman.³ In other words, Nosov does not face any charges of which the German government was not aware when it agreed to his extradition.

Nosov also moves to sever his trial from the trial of defendant Ermichine based upon (1) the rule of specialty and (2) the possible delay resulting from the death penalty review process for Ermichine. The court has broad discretion in determining whether severance is appropriate. See Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); Rule 14, F.R.Crim. P. As for his first argument, Nosov contends that, in addition to requiring that he only be charged with crimes that were included in the extradition materials, the rule of specialty also demands that his trial not be tainted by the inclusion of co-defendants being tried for additional crimes. Nosov, however, cites no authority which stands for the position that his extradition entitles him to greater deference in a motion for severance. Indeed, the specialty doctrine "has never been construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state ...." United States v. Flores, 538 F.2d 939, 944 (2d Cir.1976) (holding that evidence of certain acts that could not be prosecuted as independent crimes because of an extradition agreement, could nevertheless be admissible as evidence of a conspiracy).

Since the specialty doctrine does not affect the evidentiary rules of this court, evidence of the crimes alleged to have been committed by Ermichine and Gozman in counts one and two of the S2 Indictment (the new counts) could be admissible even in a trial of Nosov alone. Nosov is accused of being a member of an organized crime syndicate and with committing a murder and kidnapping to increase and maintain his position in the criminal organization, in violation of 18 U.S.C. § 1959(a)(1). Therefore, evidence of the crimes committed by other members of the criminal enterprise could be admissible against Nosov because it would help demonstrate the existence and nature of the group. See United States v. Diaz, 176 F.3d 52, 79 (2d Cir.1999); United States v. Miller, 116 F.3d 641, 682 (2d Cir.1997); United States v. Brady, 26 F.3d 282, 286-88 (2d Cir.1994). Because this evidence probably would be appropriate even in a separate trial of Nosov, his argument that he would be prejudiced by the inclusion of such evidence as it relates to the new charges against his co-defendants is without merit.

The court appreciates the risk of prejudice inherent in a single trial of multiple defendants. However, there is also "a preference in the federal system for joint trials of defendants who are indicted together." Zafiro, 506 U.S. at 537, 113 S.Ct. 933. Joint trials "promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). Furthermore, as explained above, severance is even less appropriate in a racketeering case where evidence of other co-defendants' criminal conduct would be admissible even if the defendant was tried separately. Cf. United States v. DiNome, 954 F.2d 839, 845 (2d Cir.1992) (noting that joinder is generally appropriate in a conspiracy case).

Finally, Nosov is charged with participating in a rather gruesome murder and kidnapping. The new allegations of kidnapping, extortion and robbery contained in the additional counts against Ermichine and Gozman do not involve grave physical harm to the victims. Thus, while they are certainly serious, the charges are not of the same violent character as those faced by Nosov. Accordingly, proof of these charges against his co-defendants should have no adverse effect on Nosov. Moreover, the court is convinced that an appropriate limiting instruction to the jury to assess the evidence against each defendant separately will provide adequate protection against any unfair prejudice involved in the defendants' joint trial. See Zafiro, 506 U.S. at 539, 113 S.Ct. 933.

Nosov also moves to sever his trial from that of his co-defendants asserting that the government's consideration of whether to seek the death penalty for Ermichine will delay his trial. A trial date in ...