USA v. Sarkisian
| Decision Date | 03 December 1999 |
| Docket Number | 98-10242,Nos. 98-10241,98-10261,98-10250,s. 98-10241 |
| Citation | 197 F.3d 966 |
| Parties | (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VASAK SARKISIAN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VITALY SEMENOV, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ASHOT MIKAYELYAN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SERGEY IVANCHIKOV, Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
COUNSEL: Sandra Gillies, Woodland, California, Karen L. Landau, Oakland, California, Jeffrey L. Staniels, Senior Assistant Federal Public Defender, Sacramento, California, Jolie S. Lipsig, Sacramento, California, for the defendants-appellants.
Mary L. Grad, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of California; Edward J. Garcia, District Judge, Presiding. D.C. Nos. CR-96-00928-EJG, CR-96-00928-1-EJG, CR-96-00928-3-EJG
Before: Mary M. Schroeder, Betty B. Fletcher, and Robert Boochever, Circuit Judges.
Defendants Ashot Mikayelyan, Vitaly Semenev, Vasak Sarkisian, and Sergey Ivanchikov appeal their trial convictions and sentences imposed for numerous counts of trafficking in altered motor vehicle parts and one count of conspiracy to violate the Motor Vehicle Theft Prevention Act, 18 U.S.C. SS 511-511A, 42 U.S.C. S 14171. Mikayelyan appeals his conviction and sentence imposed for one count of collection of an extension of credit by extortionate means, and Semenov
appeals the trial court's denial of his motion for acquittal on that charge.
We have jurisdiction pursuant to 28 U.S.C. S 1291. We affirm.
This case stems from a multi-defendant scheme trafficking in stolen cars and auto parts. Participating in the scheme were, among others, defendants Vitaly Semenov, Ashot Mikayelyan, Sergey Ivanchikov, and Vasak Sarkisian. Starting at least as early as January 3, 1995, the defendants would regularly steal cars in and around Sacramento, California and bring them to an automobile repair shop operated by Mikayelyan. Some of the cars would then be taken apart and stripped for their parts. The remaining cars would undergo a "VIN switch," whereby the car's vehicle identification number ("VIN") would be replaced with that of another, "salvaged" car1 to disguise the stolen car's identity.
The scheme was headed by Mikayelyan, who owned the repair shop and directed much of the activity. The remaining participants were paid by Mikayelyan to steal cars and car parts, and to perform the VIN switches.
On April 12, 1996, police agents went to Mikayelyan's repair shop. When they arrived, they saw Ivanchikov exit the garage and leave. They then pulled up to the garage door, identified themselves, and asked for identification. Semenov ran out and was able to evade arrest. Inside the garage, agents found a dismantled red Honda with its VIN sticker removed, as well as many stolen car parts. The police arrested several participants found at the scene.
A short while after the raid, the police arrested Ivanchikov nearby at another repair shop. On Ivanchikov's person, officers found a business card for a storage rental room in a facility in Sacramento. The officers obtained the rental agreement from the facility manager and learned that it had been rented by Alex Bedrik, an unindicted co-conspirator in the car stealing scheme, on behalf of and in the name of his grandmother. Bedrik, Mikayelyan, and Ivanchikov were listed on the agreement as people authorized to access the storage room. Because Ivanchikov and Mikayelyan were on searchable state probation, the police did not obtain a search warrant before cutting the padlock off the gate of the storage room and searching its contents. Inside, officers found numerous car parts and evidence of tampering with identification labels.
Over the year preceding these events, a dispute arose between Mihran Karapogosian and his brother-in-law, Shage Pogosian, over a $140,000 debt allegedly owed by Karapogosian to Pogosian. Pogosian contacted Mikayelyan and asked for Mikayelyan's assistance in collecting the debt. Mikayelyan arranged for some of the participants in the car stealing conspiracy, including Semenov, Sarkisian and Ruslan Gabareyev, to go to Glendale, California, to intimidate Karapogosian into paying the alleged debt to Pogosian. Specifically, Gabareyev testified that 30 minutes prior to departing for Glendale, he spoke with Mikayelyan, who told Gabareyev that "[Bekaryn] will tell you more over there on the way there, and when you guys get there you guys, [Bekaryn] tell you guys what you got to do there." Bekaryn supplied Semenov and Gabareyev with guns.
On February 12, 1996, armed with those guns, Sarkisian, Gabareyev and Semenov visited Karapogosian at his workplace. They told Karapogosian: They added: " Finally, they told Karapogosian that if he did not pay the debt, a "bad thing" was going to happen to him. Before leaving Karapogosian's office, they showed their guns to Karapogosian to intimidate him.
The first superseding indictment included seven counts of violating the Motor Vehicle Theft Prevention Act (counts 17), and two counts of conspiracy to collect a debt by extortionate means (counts 8 & 9). Count 1 charged all defendants with conspiracy to alter or remove motor vehicle identification numbers (VINs) and trafficking in certain motor vehicles and motor vehicle parts, in violation of 18 U.S.C.SS 371, 511, and 2321. Counts 2 through 7 charged all defendants with trafficking in certain motor vehicles and motor vehicle parts, in violation of 18 U.S.C. S 2321. Count 9 charged Mikayelyan, Semenov, Bekaryn, and Sarkisian under 18 U.S.C. S 894 for the 1996 Glendale extortion incident. Count 8 is not at issue in this appeal.
Prior to trial, Sarkisian, Ivanchikov, Semenov and Mikayelyan moved the district court under Federal Rule of Criminal Procedure 8(b) to sever count 9, the extortion count, from the auto theft and VIN-switch counts. Based on the prosecutor's offer of proof linking the extortion count to the other counts, and on further concerns about judicial efficiency, the district court denied the motion. At the close of the government's case and again at the close of evidence, the defendants moved under Rule 14 to sever the extortion count. The district court deferred ruling on those motions until after the verdicts were returned, but ultimately denied them as well.
At trial, the government offered evidence of the conspiracy to traffic in stolen cars and auto parts. During the trial, a problem with two jurors arose, and they were excused by the district court. The jury ultimately convicted Mikayelyan, Sarkisian, and Semenov on all charges. Ivanchikov was convicted of counts 1-7, and Bekaryn was convicted of count 9. The district court granted new trials to Bekaryn, Sarkisian and Semenov on count 9. The district court denied the defendants' Rule 29 motions for judgments of acquittal, and Rule 14 motions for a new trial based on prejudicial joinder.
Mikayelyan, Ivanchikov and Sarkisian argue that the district court erred under Rule 8(b) in denying their motion to sever at the outset of the trial. Alternatively, the defendants argue that the district court erred under Rule 14 by denying their later motion (which was renewed at the end of the trial) to sever the extortion count. A claim of misjoinder of charges under Rule 8(b) is a question of law reviewed de novo. See United States v. Vasquez-Velasco, 15 F.3d 833, 843 (9th Cir. 1994). The district court's denial of a motion to sever under Rule 14 is reviewed for an abuse of discretion. See United States v. Baker, 10 F.3d 1374, 1386 (9th Cir. 1993) (as amended). "The test for abuse of discretion by the district court is whether a joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial." Id. (quotations omitted).
Rule 8(b) provides:
Two or more defendants may be charged in the same indictment or information if 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
(Emphasis added). "Under this rule, when multiple defendants are involved, joinder is improper unless all offenses arise out of the same series of acts or transactions." See United States v. Martin, 567 F.2d 849, 853 (9th Cir. 1977). Because "[t]he goal of Rule 8(b) is to maximize trial convenience and efficiency with a minimum of prejudice," United States v. Sanchez-Lopez, 879 F.2d 541, 550 (9th Cir. 1989), "Rule 8(b) is construed liberally in favor of joinder." Baker, 10 F.3d at 1387. In determining whether two or more offenses are part of the "same series of acts or transactions constituting an offense," Fed. R. Crim. P. 8(b), this court looks for a "logical relationship" between the offenses. As this court has explained:
[W]e have stated that "transactions" has a flexible meaning and that the existence of a "series" depends upon the degree to which the events are related. Mere factual similarity of events will not suffice. Rather, there must be...
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