United States v. Dvorkin
| Decision Date | 25 August 2015 |
| Docket Number | No. 14–2799.,14–2799. |
| Citation | 799 F.3d 867 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Daniel DVORKIN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Heather K. Mcshain, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.
Timothy Parlatore, Esq., Attorney, New York, N.Y., for Defendant–Appellant.
Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.
Daniel Dvorkin was convicted on five counts of using, or causing another person to use, a facility of interstate commerce with the intent to commit a murder for hire, in violation of 18 U.S.C. § 1958, and on one count of soliciting another to commit a crime of violence, in violation of 18 U.S.C. § 373. He timely appealed his convictions on various grounds. For the reasons set forth in this opinion, we affirm the judgment of the district court.
This case arises out of Mr. Dvorkin's failed efforts to hire a hitman to kill a creditor named Larry Meyer. Meyer was the manager of Texas 1845, LLC (“Texas 1845”). In December 2010, Texas 1845 acquired two distressed loans guaranteed by Mr. Dvorkin and his company, Dvorkin Holdings, LLC. Shortly afterward, Texas 1845 filed an action in Illinois state court against Mr. Dvorkin and his company to recover on the debt. On February 26, 2012, the state court entered judgment for Texas 1845 for approximately $8.2 million. On April 2, 2012, the parties attempted, but ultimately failed, to negotiate a settlement of the debt. The judgment became enforceable on May 4, 2012.
On April 5, 2012, Mr. Dvorkin called and left a voicemail for Robert Bevis. Bevis owned and operated a firearms store, which had leased space from one of Mr. Dvorkin's companies, Dan Development, LLC (“Dan Development”). Bevis also worked as a private detective and process server. In his voicemail, Mr. Dvorkin identified himself, stated that he “ha[d] an idea,” and asked Bevis to call him back.1
The next day, Bevis visited the offices of Dan Development. There, Mr. Dvorkin approached him in the reception area and asked Bevis to accompany him to the parking lot. Once they were alone, Mr. Dvorkin told Bevis that “he had a problem” and handed Bevis a copy of the February 26 judgment in favor of Texas 1845.2 Mr. Dvorkin stated “that he wanted this guy to stop breathing” and that he was willing to pay $50,000 for Meyer's murder.3 He then reached into his pocket and brandished a large wad of cash. He explained that he was appealing the judgment and that he could prevail if Meyer were unable to respond.
In response, Bevis told Mr. Dvorkin that he knew someone in Florida who might be willing to accept Mr. Dvorkin's offer. Bevis later testified that this statement was a lie, which he told to end quickly an uncomfortable conversation.
After their conversation, Mr. Dvorkin escorted Bevis back inside Dan Development's offices, where he gave Bevis a printout of Meyer's LinkedIn profile. At the top of the printout was a handwritten note, stating, “Not sure if this [is] your guy!”4 This note was written by Mr. Dvorkin's administrative assistant, who had printed the profile after Mr. Dvorkin had asked her to find information on Meyer's whereabouts.
Bevis left Dan Development with copies of both the February 26 judgment and Meyer's LinkedIn profile. Later that day, Bevis contacted the Oakbrook Terrace, Illinois, Chief of Police to report his encounter with Mr. Dvorkin. The police, in turn, set up a meeting with the FBI. After hearing Bevis's story, the FBI asked Bevis to become a cooperating witness and to record his conversations with Mr. Dvorkin. Bevis agreed.
On April 18, 2012, at the direction of federal agents, Bevis called Mr. Dvorkin to arrange an in-person meeting. The call was recorded. During the call, Mr. Dvorkin stated that he “still ha[d] that problem” and asked Bevis if he had traveled down to Florida.5 Bevis responded that he had but that he would prefer to talk about it in person. The two agreed to meet later that day.
During their meeting, which was recorded, Bevis told Mr. Dvorkin that the Florida hitman had offered to kill Meyer for approximately $80,000, half of which he required in advance. Mr. Dvorkin responded that he had $50,000 in untraceable funds and would “have to figure out how to get the rest.”6 After discussing the issue further, Mr. Dvorkin offered to loan Bevis $50,000 on favorable terms if he could negotiate with the hitman to accept $50,000 for killing Meyer. Bevis agreed.
On April 30, 2012, Mr. Dvorkin called Bevis and told him “[t]hat he had a different avenue that he may want to take” with respect to Meyer.7 Bevis testified that he understood this statement to mean that Mr. Dvorkin had “found somebody else to kill Larry Meyer at a cheaper rate than” the fictional Florida hitman.8 Mr. Dvorkin also told Bevis that his last court date “didn't go well.”9 The two men made plans to speak again soon. On May 3, Mr. Dvorkin called Bevis and made arrangements to meet on May 7.
On May 7, 2012, Bevis drove to Mr. Dvorkin's office. In a recorded conversation, Mr. Dvorkin elaborated on the “other avenues” that he had mentioned on April 30. He told Bevis that he had hired someone else to kill Meyer for less than half of the price of the Florida hitman and with only a ten-percent down payment. Further, he explained, this other individual had promised to finish the task by Friday, May 18. Consequently, Mr. Dvorkin initially instructed Bevis to discontinue negotiations with the Florida hitman and to “tell him [that] it fell through.”10 After discussing the issue further, however, Mr. Dvorkin instructed Bevis to inquire whether the Florida hitman would accept a lower price and to tell him that they had found someone else willing to do the job for $20,000. Bevis agreed to do so.
Later in the day on May 7, Bevis, at the direction of the FBI, called Mr. Dvorkin to report that the Florida hitman would accept the lower price. In response, Mr. Dvorkin explained that his plan to use the “other avenue” hitman was already in motion and that he could not do anything until May 18. The two agreed to discuss the issue again on that date.
Following this call, the FBI placed Meyer and his family under twenty-four-hour surveillance. Further, on that same day, law enforcement officers confronted Mr. Dvorkin in the parking lot outside his office. They told him that they were aware of his plot to kill Meyer and that, if Meyer were harmed, he would be the primary suspect.
On May 8, 2012, Mr. Dvorkin called and told Bevis that he was on his way to Bevis's gun store. He arrived ten to fifteen minutes later. Their meeting was not recorded. Upon his arrival, Mr. Dvorkin told Bevis that law enforcement had confronted him and had reported that someone had taken “a shot at Larry Meyer.”11 Mr. Dvorkin asked Bevis to search online for news concerning Meyer because he did not want to use his own computer. FBI computer analysts later confirmed that a Google search for Meyer's name was made on Bevis's computer at approximately 10:16 a.m. on May 8.
On May 11, 2012, Bevis called Mr. Dvorkin to determine whether the FBI's intervention had stymied his plan to use the “other avenue” hitman. Bevis started the conversation, which was recorded, by telling Mr. Dvorkin that the FBI had stopped by his gun store and had questioned him about Mr. Dvorkin. After agreeing on what they would say if confronted by the FBI in the future, Bevis inquired whether Mr. Dvorkin still intended to follow through with his plan to kill Meyer:
FBI agents arrested Mr. Dvorkin on June 5, 2012.
In August 2012, a grand jury returned a six-count indictment, charging Mr. Dvorkin with five counts of using or causing another person to use a facility of interstate commerce with the intent to commit a murder for hire, in violation of 18 U.S.C. § 1958, and one count of soliciting another to do the same, in violation of 18 U.S.C. § 373.
Mr. Dvorkin was tried before a jury approximately one year later. During the six-day trial, the Government introduced evidence of the facts just recited. Prior to the submission of the case to the jury, Mr. Dvorkin moved for acquittal. The court denied the motion. Shortly afterward, the jury found Mr. Dvorkin guilty on all counts. Mr. Dvorkin then filed a renewed motion for acquittal and a motion for a new trial. The court denied both motions. Mr. Dvorkin timely appealed.13
Mr. Dvorkin raises four arguments on appeal. He first contends that the evidence of record is insufficient to sustain any of his convictions. Second, he submits that the evidence shows that he had renounced his criminal intent with respect to his solicitation charge and, consequently, that the district court erred in denying his motion for acquittal. Third, he asserts that the court improperly restricted his cross-examination of Bevis. Finally, he contends that the court erred by allowing the Government to make an improper argument during its rebuttal at closing. We address these issues in turn.
We begin with Mr. Dvorkin's sufficiency of the evidence arguments. See United States v. Douglas, 874 F.2d 1145, 1150 (7th Cir.1989), abrogated on other grounds by United States v. Durrive, 902 F.2d 1221 (7th Cir.1990). “In considering such a challenge, we view the...
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