United States v. Pojilenko

• Decision Date: 27 July 2005
• Docket Number: No. 03-4446.,03-4446.
• Citation: 416 F.3d 243
• Parties: UNITED STATES of America v. Evgueni POJILENKO a/k/a Eugene, a/k/a Zheka Evgueni Pojilenko, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 243

416 F.3d 243

UNITED STATES of America v. Evgueni POJILENKO a/k/a Eugene, a/k/a Zheka Evgueni Pojilenko, Appellant.

No. 03-4446.

United States Court of Appeals, Third Circuit.

Argued June 7, 2005.

Filed July 27, 2005.

Joel Harvey Slomsky (Argued), Philadelphia, PA, for Appellant.

Andrea G. Foulkes, Mark J. Ehlers (Argued), Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before AMBRO, STAPLETON, and ALARCON,^* Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

Appellant Evgueni Pojilenko challenges both his conviction and sentence. First, Pojilenko maintains he was deprived of a fair trial as a result of the admission into evidence of certain references to organized crime. Because we find that the District Court did not commit plain error in allowing the challenged testimony, we will affirm Pojilenko's judgment of conviction. Second, Pojilenko challenges his sentence pursuant to United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We will vacate Pojilenko's sentence and remand for resentencing in accordance with Booker.

I.

From 1999 to 2002, Pojilenko was involved in a criminal enterprise known as the "KGB," an organization led by Leonid Chernyak that committed various crimes including robbery, extortion, fraud, and drug trafficking. Pojilenko served, in common parlance, as "muscle" for the organization.

In December 2000, Chernyak devised a scheme to rob several potential drug purchasers. Two women attempted to purchase 200 pills of ecstacy. One of the women knew a drug dealer named "Greek John," who told them that he had a source in Philadelphia who could supply the drugs. That source was a KGB associate, 16 year old Leonid Kadomsky. Kadomsky sought to broker the ecstacy sale between Greek John and the KGB.

Chernyak instead decided that the KGB would rob the two women and Greek John when they appeared with the money to buy the drugs. Chernyak planned the robbery, recruited Pojilenko and another man, Kitiashvili, to rob the purchasers, and later instructed them on how to divide the money. Cherynak had Kadomsky detain the robbery victims until Pojilenko and Kitiashvili arrived and physically robbed the individuals.

In April 2002, a federal grand jury indicted Pojilenko on 48 counts of RICO and RICO conspiracy. Racketeering acts 8A, 8B and 8C charged Pojilenko with robbery and conspiracy to rob during the above-described incident.

At trial, the District Court allowed the following background testimony:

(1) Agent Kepple of the FBI testified that he was assigned to the organized crime squad and had been previously assigned to the Eurasian Organized Crime Squad;

(2) Another FBI agent reported that he was a member of the Organized Crime Squad;

(3) A Philadelphia police officer testified that he worked with the case agent and other federal agents assigned to the Eurasian Organized Crime Squad; and

(4) An agent of the Pennsylvania Attorney General's office testified that his investigation proceeded in cooperation with the FBI's Eurasian Organized Crime Squad.

Each law enforcement official then testified about his respective investigations of Pojilenko and the other co-defendants.

Evidence introduced at trial revealed that Pojilenko's interaction with Kadomsky related to the robbery in question was very limited. The only evidence of their interaction that night was that (1) Kadomsky spoke with either Pojilenko or Kitiashvili on the phone on the night of the robbery (but did not know to which individual he actually spoke), and (2) Chernyak told Pojilenko to hurry along to the robbery location because Kadomsky wouldn't "hold the girls for 20 minutes."

Pojilenko was found guilty. In calculating his sentence for racketeering act 8, the District Court applied a two-level enhancement for the use of a minor, pursuant to U.S.S.G. § 3B1.4. The Court then sentenced Pojilenko to 168 months of imprisonment.

Pojilenko now appeals, arguing (1) that the admission of the above-referenced law enforcement officers' testimony was error, (2) that his sentence must be vacated in light of Booker, and (3) that the two-level enhancement was improper.¹

II.

Pojilenko contends that the testimony of law enforcement officials in which those officials identified themselves as being members of organized crime squads unfairly associated him with organized crime and created a situation in which the jury believed he was a dangerous man. Because this objection was not raised at trial, we review for plain error. United States v. Boone, 279 F.3d 163, 174 n. 6 (3d Cir.2002). We find none. The challenged testimony "served the legitimate purpose of apprising the jury of [the officers'] qualifications for investigating Appellant's activities." United States v. Vastola, 899 F.2d 211, 242 n. 38 (3d Cir.1990) (affirming the District Court's decision to permit two law enforcement officers to testify that they were assigned to organized crime units, and rejecting the argument that the testimony gave an improper inference that the defendant had connections to organized crime). Its probative value was not outweighed by the likelihood of undue prejudice to appellant. Id.²

III.

Pojilenko was sentenced before the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the District Court applied the Sentencing Guidelines as mandating the extent of its sentencing discretion. Accordingly, we will vacate Pojilenko's sentence and remand for resentencing in accordance with Booker. United States v. Davis, 407 F.3d 162 (3d Cir.2005) (denying rehearing en banc).

IV.

While the District Court's sentencing discretion will not be limited by the Sentencing Guidelines on remand, the Sentencing Reform Act of 1984 ("the Act"), even "without the `mandatory' provision, . . . nonetheless requires judges to take account of the Guidelines together with other sentencing goals." Booker, 125 S.Ct. at 764. Thus, the Act requires that the District Court consider, among other things, "the Guidelines' sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant.'" Id. For this reason, Pojilenko's challenge to the District Court's interpretation of U.S.S.G. § 3B1.4 is not a moot issue, and we will address it in the interest of conserving judicial resources.³ We review the District Court's interpretation of the Sentencing Guidelines de novo. United States v. Mobley, 956 F.2d 450, 451 (3d Cir.1992).

Pojilenko argues that there is no evidence he "used" Kadomsky within the meaning of § 3B1.4 and that the use of Kadomsky by other members of the conspiracy cannot be attributed to Pojilenko for purposes of a § 3B1.4 enhancement. We agree.

Section 3B1.4 of the Sentencing Guidelines provides, in relevant part, that "[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase [the base offense level] by 2 levels." U.S.S.G. § 3B1.4. The application notes to this section define "use or attempted use" as including "directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting or soliciting."

A. "Use" by Appellant

Numerous courts have held that there must be some affirmative act beyond mere joint participation in a crime with a minor to qualify as "use of a minor" under § 3B1.4. See United States v. Parker, 241 F.3d 1114 (9th Cir.2001) (holding defendant's participation in a robbery with a minor does not warrant a sentence enhancement under § 3B1.4 "in the absence of evidence that the defendant acted affirmatively to involve the minor in the robbery, beyond merely acting as his partner"); United States v. Suitor, 253 F.3d 1206 (10th Cir.2001) (holding that "the two-level § 3B1.4 increase is only applicable if a defendant directs, trains, or in some other way affirmatively engages the minor participant in the crime of conviction"); United States v. Ramsey, 237 F.3d 853, 860 (7th Cir.2001) (noting that the defendant must still take affirmative acts to involve the minor in the commission of the offense); United States v. Butler, 207 F.3d 839 (6th Cir.2000) (finding Congress contemplated an offender who actually exercised some control or took some affirmative role in involving the minor). We agree with our sister Circuits that some affirmative act is necessary beyond mere partnership in order to implicate § 3B1.4. To hold that any defendant who merely participated with a minor in a crime is subject to a two-level enhancement and would create, in effect, an across-the-board enhancement that would conflict with the notion that this enhancement is reserved for defendants who play a particular role in the offense.

The District Court is, of course, free to allow the parties to supplement the sentencing record on remand. We comment on the current record only for the purpose of illustrating our view of the scope of § 3B1.4.⁴ As we view the record, it would not support a finding that Pojilenko committed an affirmative act beyond mere partnership. The record reflects that the recruitment and direction of Kadomsky were performed by Chernyak before Pojilenko became involved in the robbery as "muscle." Even if Kadomsky did indeed speak to Pojilenko on the telephone the night of the robbery, a telephone call from Kadomsky in which he informed Pojilenko of some robbery details cannot reasonably be viewed as Pojilenko taking affirmative steps with respect to Kadomsky's participation. Similarly, the telephone call in which Chernyak told Pojilenko that Kadomsky could only "hold the girls for 20 minutes" may have informed Pojilenko regarding Kadomsky's involvement, but being told something by Chernyak certainly is not the same as Pojilenko's directly performing an affirmative act to recruit or direct Kadomsky.

The record simply lacks evidence of any affirmative act...