United States v. Strukov

• Jurisdiction: United States,Federal
• Parties: UNITED STATES OF AMERICA v. [4] MYKYTA STRUKOV
• Decision Date: 04 April 2024
• Court: U.S. District Court — Middle District of Tennessee
• Docket Number: 3:23-cr-000127-4

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UNITED STATES OF AMERICA v. [4] MYKYTA STRUKOV

No. 3:23-cr-000127-4

United States District Court, M.D. Tennessee, Nashville Division

April 4, 2024

ORDER

ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

Before the court is defendantMykyta Strukov's Motion to Dismiss or Cure Indictment (Doc. No. 68) supported by a Memorandum of Law (Doc. No. 69), in which Strukov argues that Counts One and Two of the Indictment must be dismissed as to him.The government has filed a Response in opposition to the motion (Doc. No. 79), and the defendant has filed a Reply (Doc. No 85).^[1] For the reasons set forth herein, the motion will be denied but without prejudice to the defendant's ability to request special jury instructions and a carefully tailored verdict form to address the problems of duplicity and multiplicity identified herein.

I.BACKGROUND

On August 28, 2023, the government filed a thirteen-count Indictment (plus a forfeiture allegation) charging four defendants, including Mykyta Strukov.Only Counts One and Two concern all four of the defendants, and they are the only two counts against Strukov.Count One consists of a single paragraph that states:

COUNT ONE

(Weapons Trafficking Conspiracy-18U.S.C. § 933)

1.Beginning not later than in or about April 2023 . . . and continuing through at least on or about August 9, 2023, in the Middle District of Tennessee and elsewhere, the defendants[1]ARNOLD JUNIOR MARKS, a/k/a “AJ,”[2]KAMAL FAKHRY, [3]CASSETTY CARVER, and [4] MYKYTA STRUKOV . . . did knowingly: (a) ship, transport, transfer, cause to be transported, and otherwise dispose of one or more firearms to another person, in and affecting interstate commerce, knowing and having reasonable cause to believe that the use, carrying, and possession of a firearm by the recipient would constitute a felony; and (b) receive from another person one or more firearms, in and affecting interstate or foreign commerce, knowing or having reasonable cause to believe that such receipt would constitute a felony, as defined in section 932(a), and did attempt to and conspire to do the same.

In violation of Title 18, United States Code, Sections 933(a) and (b).

(Doc. No. 3, at 1-2.)

Count Two of the Indictment charges a conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371.Its allegations cover nine pages that will not be reproduced in their entirety here, but relatively few of its paragraphs concern Strukov.Paragraph 2 states that, beginning in or about April 2023 and continuing through August 9, 2023, the four defendants“did knowingly combine, conspire, confederate, and agree with each other and others known and unknown” to engage in criminal offenses against the United States, including (a)“knowingly engaging in the business of dealing in firearms without a license,” in violation of 18 U.S.C. §§ 922(a)(1)(A)and923; and (b) transferring firearms to another person while knowing or having reasonable cause to believe that the possession of the firearm by the recipient would constitute a felony, in violation of 18 U.S.C. § 933.^[2] Under the “Manner and Means”section of Count Two, the Indictment alleges that the four defendants“would purchase firearms with the intent of reselling firearms” to other individuals, including a confidential informant (“CI”), would “offer[] to sell firearms to individuals” in this judicial district, and, despite not having a license to sell firearms, “would then sell these firearms to individuals, some of whom were felons.”(Doc. No. 3 ¶¶ 5-7.)

The “Overt Acts” alleged in Count Two cover forty-five enumerated paragraphs, only six of which mention or tangentially involve Strukov:

DD.On or about June22, 2023, [1] ARNOLD JUNIOR MARKS, a/k/a “AJ” met with [2]KAMAL FAKHRY, [4]MYKYTA STRUKOV, and an unindicted co-conspirator to obtain additional firearms to sell to the CI;

EE.On or about June22, 2023, [1] ARNOLD JUNIOR MARKS, a/k/a “AJ” sold the CI [four different pistols, including one that was “modified for automatic fire”] for $4,000;^[3]....

LL.On or about July10, 2023, [1] ARNOLD JUNIOR MARKS, a/k/a “AJ” met with [2]KAMAL FAKHRY and [4] MYKYTA STRUKOV at the Rains Market & Eatery in Nashville before [1]ARNOLD JUNIOR MARKS, a/k/a “AJ” obtained the money from the CI to purchase firearms;

MM.On or about July10, 2023, [1] ARNOLD JUNIOR MARKS, a/k/a “AJ” met with the CI and the CI provided [1]ARNOLD JUNIOR MARKS, a/k/a “AJ” with $8,450 for firearms;

NN.On or about July 10, 2023, immediately after obtaining money from the CI, [1]ARNOLD JUNIOR MARKS, a/k/a “AJ” met with [4]MYKYTA STRUKOV at the Rains Market & Eatery in Nashville where [4]MYKYTA STRUKOV provided [1]ARNOLD JUNIOR MARKS, a/k/a “AJ” with three bags containing firearms in exchange for the currency previously obtained from the CI; OO.On or about July10, 2023, [1] ARNOLD JUNIOR MARKS, a/k/a “AJ sold the CI [four pistols and a rifle] ....

(Doc. No. 3 ¶¶ 8(DD), 8(EE), 8(LL)-8(OO).)^[4]

Strukov seeks dismissal of both Indictment counts against him.He argues that Count One should be dismissed as insufficient or, alternatively, that it must be reformulated to cure duplicity.He also argues that, insofar as it charges a conspiracy in violation of § 933, it is multiplicitous.(SeeDoc. No. 69, at 5 n.1.)He seeks dismissal of Count Two on the grounds that (1) it does not adequately allege that he knowingly joined the conspiracy to effectuate its purpose and (2)the statutes criminalizing the unlicensed “dealing” of firearms fail to provide him fair warning that his conduct would be considered illegal and (3) are unconstitutionally vague.

The government responds that the defendant's objection to the Indictment amounts to a mere factual dispute, that the Indictment is valid on its face, and that no court to date has found the relevant statutes to be unconstitutionally vague.

II.COUNT ONE

As indicated above, Strukov argues, first, that Count One should be dismissed as legally insufficient, as it consists of a “mere recitation of 18 U.S.C. § 933 without the requisite ‘statement of facts and circumstances.'”(SeeDoc. No. 69, at 5(quotingUnited States v. Landham, 251 F.3d 1072, 1079(6th Cir.2001)).)Alternatively, he contends that Count One must be reformulated to cure duplicity and multiplicity.More specifically, he contends that Count One is duplicitous, because subsections (a)(1) and (a)(2) proscribe two substantively different offenses requiring different proof and that subsection (a)(3), which proscribes attempting and conspiring to violate (a)(1) or (a)(2), creates two additional offenses.Strukov also contends that the conspiracy charge in Count One is multiplicitous, insofar as it charges the same conspiracy to violate § 933 that is charged in Count Two.The government responds by arguing only that Count One is sufficient.

A.Legal Standards

1.Sufficiency of the Indictment

Rule 7 of the Federal Rules of Criminal Procedure states that an indictment must include a “plain, concise, and definite written statement of the essential facts constituting the offense charged.”Fed. R. Crim. P. 7(c)(1).A count in the indictment “may incorporate by reference an allegation made in another count,” but the indictment must provide, for each count, the “official or customary citation of the statute, rule, regulation or other provision of law that hedefendant is alleged to have violated.”Id.Under Rule 8, when there are multiple defendants in one case, they“may be charged in one or more counts together or separately,” so long as “they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”Fed. R. Crim. P. 8(b)

The Sixth Circuit has generally recognized that an indictment is sufficiently pleaded, both under these rules and under the Constitution,^[5] if it, “first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.”United States v. Howard, 947 F.3d 936, 942(6th Cir.2020)(quotingHamling v. United States, 418 U.S. 87, 117(1974)).As the Supreme Court further explained in Hamling:

It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.

Hamling, 418 U.S. at 117-18(internal citations and quotation marks omitted)(emphasis added);see alsoLandham, 251 F.3d at 1079 (“[I]t is axiomatic that, ‘[t]o be legally sufficient, the indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime.'”(quotingUnited States v. Superior Growers Supply, Inc., 982 F.2d 173, 177(6th Cir.1992)).

Courts evaluating a motion to dismiss an indictment do not evaluate the evidence upon which the indictment is based.Landham, 251 F.3d at 1080(citing, among othersCostello v. United States, 350 U.S. 359, 362-63(1956)).However, “[w]hether the elements of the offense are adequately alleged in the indictment is a legal question subject to de novo review.”Id.(citingSuperior Growers, 982 F.2d at 177).An indictment is...