U.S.A. v. Sogomonian

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1415
• Citation: 247 F.3d 348
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. KHACHATOUR C. SOGOMONIAN Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 348

247 F.3d 348 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. KHACHATOUR C. SOGOMONIAN Defendant-Appellant.

Docket No. 00-1415

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 23, 2001

Decided: April 18, 2001

Defendant-appellant, Khachatour C. Sogomonian ("Sogomonian"), appeals from a June 6, 2000 judgment entered in the United States District Court for the Western District of New York (John T. Elfvin, Judge). The three-count indictment against Sogomonian charged him with two counts (Counts 1 and 2) of violating 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) and one count (Count 3) of violating 18 U.S.C. § 922(k) and 18 U.S.C. § 924(a)(1)(B). Judgment in this case was entered after Sogomonian was found guilty on Count 1 of the indictment. The jury was unable to reach a verdict on Counts 2 and 3 of the indictment, and therefore Counts 2 and 3 were dismissed. Judge Elfvin sentenced Sogomonian to fifteen months' imprisonment, to be followed by a period of two years' supervised release, and a $100 special assessment. AFFIRMED.

William Clauss, Federal Public Defender's Office, Western District of New York, Rochester, NY, for Appellant.

Richard Power Maigret, Assistant United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

PER CURIAM:

Defendant-appellant, Khachatour C. Sogomonian ("Sogomonian"), appeals from a June 6, 2000 judgment entered in the United States District Court for the Western District of New York (John T. Elfvin, Judge). The three-count indictment against Sogomonian charged him with two counts (Counts 1 and 2) of violating 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) and one count (Count 3) of violating 18 U.S.C. § 922(k) and 18 U.S.C. § 924(a)(1)(B).¹ Sogomonian's defense at trial was that he did not knowingly possess either of the firearms in question. Judgment in this case was entered after Sogomonian was found guilty on Count 1 of the indictment. The jury was unable to reach a verdict on Counts 2 and 3 of the indictment, and therefore Counts 2 and 3 were dismissed. Judge Elfvin sentenced Sogomonian to fifteen months' imprisonment, to be followed by a period of two years' supervised release, and a $100 special assessment. On appeal, Sogomonian raises three issues, which all focus on Judge Elfvin's interaction with the jury.

I. BACKGROUND

On March 11, 1997, Sogomonian and two of his cousins, who do not speak English, traveled across the country from California to Boston in a rented van. They made many stops to sell antique rugs on the trip. On the return trip, the cousins drove through Western New York and for a very short time into Canada.

On March 22, 1997, a little after 3 a.m., Sogomonian drove the rented van back into the United States from Canada at the Rainbow Bridge, Niagara Falls, New York. Apparently, Sogomonian had been sleeping when his cousins drove into Canada and thus was unaware that he had been in Canada. Therefore, when asked by the customs inspector how long he had been in Canada, Sogomonian responded that he and his cousins had not been in Canada. As a result of this answer, Sogomonian and his cousins were directed to proceed from the primary inspection area to the secondary inspection area.

When questioned about the presence of firearms in the van, Sogomonian answered that there was a 9 millimeter pistol in the side compartment toward the rear of the van. Sogomonian also told the Customs Inspectors that the gun was not loaded, that there were two magazines somewhere in the van, and that the 9 millimeter pistol was registered in his father's name. Customs Inspectors Ballentine and Langan proceeded to search the van, and Ballentine found the 9 millimeter pistol. The magazines for the 9 millimeter pistol were also found in the van. Langan also found a.25 caliber pistol with its serial number obliterated between the seat and the seat back of the rear seat of the van. When asked if there were other firearms in the van besides the 9 millimeter pistol and to whom they might belong, Sogomonian responded that there might be a .22 or .25 caliber pistol in the van and that "basically, it belongs to me."

Sogomonian was arrested for violating 18 U.S.C. § 922(k), which makes it illegal to possess a firearm with its serial number removed or obliterated. Later in the morning of March 22, 1997, while awaiting his initial appearance, Sogomonian was in the custody of Special Agent Vadala of the United States Customs Service. Vadala testified that Sogomonian told him that the guns in the van were for protection, that his friends in California told him to take the guns for protection, and that it was stupid and a big mistake for him to have the guns. Vadala also testified that Sogomonian inquired as to whether there was any way to get out of the situation that he was in. Sogomonian denied making any statements suggesting that he knew the guns were in the van. Sogomonian also pointed out that Agent Vadala made three reports of the alleged admissions, each with different details. These reports contained changes concerning the location where Sogomonian's statements were made and to whom the statements were made.

Subsequent investigation revealed that Sogomonian had been convicted of the Illegal Possession of a Narcotic Controlled Substance, as a felony, in violation of Section 11350 of the California Health and Safety Code. This crime was punishable by imprisonment for a term exceeding one year. Therefore, Sogomonian was charged with two counts of violating 18 U.S.C. § 922(g)(1), which makes it illegal for an individual who has previously been convicted of a crime punishable by imprisonment for a term exceeding one year to possess a firearm.

Sogomonian's defense at trial was that he did not knowingly possess either of the firearms in question. Sogomonian's father bolstered his son's defense by testifying that he had hid the 9 millimeter pistol and the magazines inside the rugs in late April 1996. Sogomonian testified that he had trouble renting a van for the trip across the country, and when he finally secured a rental van, it was not cleaned before the trip began. Also testifying at trial was a fingerprint specialist with the Bureau of ATF who testified that no identifiable fingerprints were found on either of the firearms or the ammunition clips. As indicated above, the jury found Sogomonian guilty on Count 1 (possession of the 9 millimeter pistol after having been convicted of a crime with a potential sentence exceeding one year in prison) and was unable to reach a verdict on Counts 2 and 3, which both related to the.25 caliber pistol. Counts 2 and 3 were dismissed. On appeal, Sogomonian claims that (1) the district court's instruction to the jury on reasonable doubt was unconstitutional, (2) the district court committed plain error when it gave a conscious avoidance instruction to the jury, and (3) the district court committed plain error in selecting alternate jurors by lottery at the conclusion of the trial in violation of Federal Rule of Criminal Procedure 24(c).

II. DISCUSSION

A. The District Court's Reasonable Doubt Instruction

Sogomonian argues that the district court's instruction to the jury on reasonable doubt was unconstitutional for four reasons. First, Sogomonian claims that, by equating a reasonable doubt with a fair doubt, the trial court created confusion as to the definition of reasonable doubt. Second, appellant suggests that the reasonable doubt instruction was unconstitutional because it told jurors that they would not be determining whether Sogomonian was guilty or not guilty. Third, Sogomonian argues that the district court "eviscerated the presumption of innocence," "applied unfair pressure" to the jurors, and "diluted the government's burden of proof" when it told jurors that they were obligated to explain their views to each other and to the court. Finally, Sogomonian argues that, as a whole, these deficiencies in the district court's instruction create a reasonable likelihood that the jury was misled and confused by the instructions.

With respect to reasonable doubt instructions, the Supreme Court has held that "so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, seeJackson v. Virginia, 443 U.S. 307, 320 n.14 (1979), the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478, 485-86 (1978). Rather, 'taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.' Holland v. United States, 348 U.S. 121, 140 (1954)." Victor v. Nebraska, 511 U.S. 1, 5 (1994). When considering the district court's reasonable doubt instruction, this Court does "not engage in an inquiry of harmless error review." United States v. Doyle, 130 F.3d 523, 536 (2d Cir. 1997). Instead, this Court must "assess only the charge, taken as a whole, in order to determine whether there is a reasonable likelihood that the jury misinterpreted the reasonable doubt instruction.... Here, therefore, we need only decide whether there is a reasonable likelihood that the jury misunderstood the reasonable doubt standard." Id. (emphasis in original). In addition, this Court must focus on the cumulative effect of the definitions of reasonable doubt given by the district court. SeeGaines v. Kelly, 202 F.3d 598, 606 (2d Cir. 2000). Considering the district court's reasonable doubt instruction and the jury charge as a whole and considering the potential cumulative effect of the alleged errors, we hold that there is not a reasonable likelihood that the jury misinterpreted or misunderstood the reasonable doubt instruction. Therefore, we hold that the district court's reasonable doubt instruction was constitutional.

B. The District Court's Conscious Avoidance Instruction

Sogomonian argues that...