Opinion
CASE NUMBER: 05-80187.
June 25, 2007
ORDER
I. INTRODUCTION
Pursuant to a Rule 11 Plea Agreement, Defendant Aleksandr Maksimenko pled guilty to involuntary servitude ( 18 U.S.C. § 241), alien smuggling conspiracy ( 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (B)(I)), and money laundering conspiracy ( 18 U.S.C. § 1956(h)).
The probation department calculates Defendant's Guideline sentencing range to be 168 to 210 months, based on a criminal history category of II and an offense level of 34. However, in the Rule 11 the parties agreed that with a substantial assistance downward departure Defendant's Guideline range would be 151 to 262 months. See Rule 11 Plea Agreement at ¶ 2(B). The parties' agreed upon range was based on a criminal history category of I (rather than II) and an offense level between 34 (151-188 months) and 37 (210-262 months). The correct offense level depends upon whether Defendant's sentencing range is enhanced by three levels for criminal sexual abuse.
In their memoranda, the parties address: 1) whether Defendant should be deemed to fall within criminal history category I rather than II, and 2) whether his sentencing range should be enhanced for criminal sexual abuse. Defendant further offers information for the Court to consider in its assessment of the 18 U.S.C. § 3553(a) sentencing factors, and the Government moves for a substantial assistance downward departure under U.S.S.G. § 5K1.1.
III. ARGUMENTS AND APPLICABLE LAW
I. Arguments
A. Criminal History Category
Defendant was assessed one criminal history point for two prior convictions in 2004 (arising from the same incident) — Count I — failure to display a valid license; Count II — possession of a controlled substance (marijuana). See Presentence Investigation Report ("PSIR") at ¶¶ 46-48. Because Defendant committed some of the charged offenses while on probation for Count II, the probation department assessed him two additional criminal history points. See PSIR at ¶ 49. Defendant's total of three criminal history points places him in criminal history category II. Defendant also had a third conviction in 1996 for littering. No points were added for this offense.
In August 2004, Defendant pled guilty to Count I and nolo contendere to Count II. Defendant was assessed a fine and costs for Count I. His plea under Count II was taken under advisement and he was sentenced to three months probation.
Defendant does not dispute the accuracy of the PSIR calculation. But, he gives two reasons why the Court should deem his criminal history category to be I rather than II. First, he argues that the Court should honor the parties' negotiated agreement that category I will apply. Second, with virtually no argument and no citation to supporting authority, Defendant asserts that the probation department's criminal history determination overstates his criminal history. Therefore, he urges the Court to only assess him one criminal history point under U.S.S.G. § 4A1.3(b)(1), which would place him in category I. Presumably as an extension of his request for departure under § 4A1.3(b)(1), Defendant impliedly argues that the Court can decline to assess him two points (for committing the instant offense while on probation) because his prior conviction (on Count II) was taken under advisement and he successfully completed his (three month) probationary term. However, to say Defendant successfully completed probation may not be totally accurate. Although he was not violated and probation was discharged, he was certainly prohibited from committing other crimes as a condition of probation. He clearly violated that requirement; his violation simply was not detected.
With respect to Defendant's first argument, the Government denies that it agreed at the time of the plea that Defendant should be placed in criminal history category I. In fact, the Government says that it did not realize that Defendant might be assessed two criminal history points and, therefore, did not consider the matter. Nevertheless, the Government does not oppose Defendant's request that criminal history category I apply. The Government agrees that category II arguably overrepresents Defendant's criminal history given the nature of the convictions and the short duration of his probation.
ii. Analysis
There is a basis to grant Defendant's request for downward departure.
Defendant contends that his criminal history is overstated because the prior convictions were for minor offenses. U.S.S.G. § 4A1.3(b)(1) allows for downward departure if the defendant's criminal history substantially overstate the seriousness of the defendant's criminal history or likelihood of recidivism:
(b) Downward Departures. —
(1) Standard for Downward Departure. — If reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted.
It is within the court's discretion to grant downward departure under § 4A1.3(b)(1) if a defendant's prior convictions for minor offenses substantially overstates the seriousness of his criminal history.
For instance, in an unpublished opinion the Sixth Circuit in United States v Mills, 27 Fed. Appx. 391 (6th Cir. 2001), defendant pled guilty pursuant to a Rule 11 plea agreement which was based in part on the parties' estimation that he fell within criminal history category II due to two minor convictions for attempted possession with intent to deliver a controlled substance and attempt to carry a concealed weapon. However, the presentence investigation report revealed two additional convictions for minor offenses for which defendant only received a fine — possession of drug paraphernalia and possession of marijuana. The two additional convictions increased defendant's criminal history category to III. Defendant requested downward departure under § 4A1.3(b)(1). The district court denied the request because it was under the impression that the Guidelines required it to include all of the convictions in the calculation. On appeal, however, the Sixth Circuit vacated the district court's sentence and remanded the matter for resentencing. The Mills Court stated that the district court was mistaken in its belief that it did not have authority to grant a downward departure:
[W]e . . . agree with Defendant that the sentencing court erroneously believed that it could not depart downward under § 4A1.3. It appears from the record that the sentencing court was under the belief that because the guidelines call for the consideration of these minor offenses in the calculation of Defendant's criminal history level, the court had no alternative but to sentence Defendant accordingly. . . . However, . . . § 4A1.3 expressly allows for a downward departure in such a case despite the guidelines command that these offense[s] be included in the calculation of the criminal history level.27 Fed. Appx. at 393-394. See also United States v Nelson, 166 F.Supp.2d 1091 (E.D. Va. 2001) (district court reduced criminal history category from VI to III, because defendant's prior convictions were for primarily minor, non-violent offenses and traffic infractions which is significantly less serious than typical offenders who fall within category VI).
Here, downward departure from category II to I would be reasonable since the Government does not object and one could reasonably argue that the seriousness of Defendant's criminal history is substantially overstated given the nature and paucity of his prior convictions. He only has two chargeable prior convictions, both of which are minor and occurred during the same incident.
Since the Court grants departure under § 4A1.3, it is not necessary to reach Defendant's alternate argument.
B. Criminal Sexual Abuse
I. Arguments
The parties agree that Defendant's offense level would increase from 34 to 37 if the Court applies the cross reference under U.S.S.G. § 2H4.1(b)(4)(B) for "criminal sexual abuse." The Government alleges that Defendant sexually abused two of the women Defendant compelled to work for him, in violation of U.S.S.G. § 2A3.1.
The burden is on the Government to prove by a preponderance of evidence that a sentencing enhancement applies to increase the advisory guideline range. United States v Barton, 455 F.3d 649, 658 (6th Cir. 2006), cert. den., 127 S.Ct. 748 (2006). To meet its burden, the Government relies upon statements from Yana Skidan, Anna Sharko, and others that Defendant forced them to have sex with him on multiple occasions. Defendant claims the sex was consensual and generally asserts that: 1) the Government's claims are disingenuous because only two of the twelve women claim they were sexually abused; 2) the Government ignored similar allegations against Co-Defendant Michail Aronov and, therefore, the three points should not be assessed due to the Government's inconsistency; and 3) Skidan and Sharko are not credible; they embellish to get sympathy from the Government and because they owe the Government which arranged for them to continue to live and work in the United States. An evidentiary hearing was scheduled on this issue, but Defendant elected to waive the hearing and present written arguments.
a. Yana Skidan
Skidan told Federal Bureau of Investigation ("FBI") agents that Defendant first forced her to have sex with him (in the fall of 2003) during a trip to New York. See Gov't. Exh. A. She says Maksimenko told her that she had to have sex with him because she owed him money for documents (presumably the documents used to bring her into the United States). When she said no, Skidan says Defendant hit her a couple of times. She says that she attempted to fight Defendant off, but he almost ripped off her clothes and held her hands down.
In his brief, Defendant denies forcing or coercing Skidan to have sex while in New York. He said that she did not resist or say no. But, Aronov went with Defendant and Skidan to New York and he corroborates her claims in a Stipulation of Facts entered as part of Aronov's plea:
After driving through the night, they arrived in New York, checking into a hotel. While at the hotel, MAKSIMENKO made [Skidan] have sex with him in the bedroom while ARONOV remained in the living room of the hotel suite. After MAKSIMENKO emerged from the bedroom, he admitted to ARONOV that [Skidan] had initially resisted having sex with him.See Aronov Stipulation of Facts at ¶ 10. Aronov says he also witnessed a second instance in the spring of 2004 when Defendant demanded sex and Skidan protested but Defendant pushed her into the bedroom. See Aronov Stipulation of Facts at ¶ 14.
Also, in a statement Defendant gave to agents for the Department of Homeland Security, ICE, he admitted that he: (1) felt it was his right as the boss to have sex with the women who worked for him; (2) used the threat of deportation as a means of coercion; and (3) told Skidan that she had to have sex with him because she owed him money:
MAKSIMENKO admitted to having sex with the women. He said that it was his right as the boss. MAKSIMENKO expected sex from the women. If the women didn't have sex with him they would be deported. MAKSIMENKO understood that these sexual relations were not the same as a consensual relationship between a boyfriend and girlfriend. MAKSIMENKO admitted to first having sex with SKIDAN in Michigan. He told SKIDAN that she owed him money so they would have sex.
Gov't Exh. B at p. 7. In addition to the methods he used for sexual coercion, Defendant admitted that he used various other methods to control the women so that they could not say no to him:
Defendant's assertion during the interview that he first had sex with Skidan in Michigan, rather than New York, apparently was an error. In his brief, Defendant acknowledges that the first encounter was in New York.
MAKSIMENKO explained that he controlled the women through the following: lectures and explanations, holding immigration over their heads, fear of the police and holding debts over the women's heads. MAKSIMENKO also said that we, meaning he and ARONOV, held their identity documents. MAKSIMENKO also admitted to using intimidation and threatening to "kick their ass". [sic] MAKSIMENKO also said that if he had to he would put a hand on one of the women to tug them out the door. Because of all of these things, according to MAKSIMENKO, the girls were not able to say no to him.Id.
Nevertheless, Defendant maintains that he and Skidan were involved in a consensual, romantic relationship. After the first encounter, they had sex several times per week until Skidan left. Defendant says he considered Skidan to be his girlfriend and considered leaving his wife for her. Skidan acknowledges that she did not continue to fight Defendant, but she says that she acquiesced because she felt that "it would happen anyway" and she thought that it would not hurt if she did not fight. Govt. Exh. A. Purportedly because he viewed Skidan as a girlfriend, Defendant says he bought her jewelry and other gifts on numerous occasions, paid for breast implants, moved her to a newer apartment when she complained about her existing one, purchased new furniture, and gave her money and took her out for her birthday. Skidan denies that Defendant was "romantic" with her. But, she acknowledges that he gave her jewelry for her birthday after she had been working for him for two years.
Defendant claims he broke off the relationship after Skidan began abusing drugs and alcohol. Defendant says Government correspondence (not provided to the Court) shows that Skidan was fired from one or more strip clubs because of her drug (and possibly alcohol) use. She was also convicted of shoplifting.
Lastly, Defendant asserts that Skidan is lying about the alleged sexual abuse because she is indebted to the Government because it was instrumental in getting state criminal charges for her participation in lap dances at a strip club dismissed (and because of immigration assistance). See Def. Exh. 2. The Government acknowledges that many of Defendant's victims received "T-Visas," including Skidan and Sharko. But, the Government says absent fraud the T-Visas could not be taken away once they were issued, even if the victims refused to continue cooperating. Yet, Skidan and Sharko appeared for the hearing prepared to testify against Defendant even though they had already received their T-Visas.
With respect to the dismissed state charges, the Government points out that the Wayne County Prosecutor was already in the process of dismissing charges against all of the dancers arrested in the raid, including Defendant's wife (Niki Papoutsaki) and stepmother (Anna Gonikman-Starchenko), when the Government inquired about the status of the charges against Skidan. Also, Skidan was the only one among those charged who was also a victim of the servitude conspiracy and Papoutsaki and Gonikman-Starchenko were not cooperating with the Government at that time.
b. Anna Sharko
Sharko's sexual relationship with Defendant was initially consensual. Sharko first met Defendant in Kiev, Ukraine while she was working in a strip club owned by Defendant's father, Veniamin Gonikman. Sharko went out with Defendant and says that she had consensual sex with him on two occasions before coming to the United States. Def. Exh. 3. Sharko says that she and another dancer at Gonikman's club, Julia Miroshko, agreed to come to the United States at Defendant and Aronov's suggestion to work as waitresses. Sharko says they were told that they would make a lot of money and would go on vacations with Defendant and Aronov. She was attracted to Defendant and hoped to become his girlfriend. Miroshko hoped to become Aronov's girlfriend.
However, Sharko says when she arrived in Detroit, Defendant and Aronov took her passport and other identification. Defendant, Aronov and Gonikman then told Sharko and Miroshko they would work as dancers, not waitresses. Sharko and Miroshko say they were told that they each owed $12,000 for their travel documents and flight to the United States and that it had to be repaid in two months. Sharko says, and Aronov confirms, that he and Defendant later told the women that they each owed an additional $10,000 for their personal identification and other documents and for allowing them to work as dancers. Aronov Stipulation of Facts at ¶ 19.
Defendant housed Sharko and Miroshko in an apartment which had no telephone. Defendant and Aronov had keys to the apartment and came and went as they pleased. They required Sharko and Miroshko to work twelve hours per day six days per week. At the end of each night, the women gave all of their earnings to Defendant and Aronov, who picked them up each night for work and dropped them off afterwards. Sharko says she was never allowed to leave the apartment alone.
Sharko described her sexual encounters with Defendant in numerous statements. In one statement, Sharko said Defendant forced her to have sex with him approximately three weeks after she arrived in Detroit. Def. Exh. 3. She says that she did not want to have sex but he kept yelling at her. Sharko elaborated in another statement. Gov't PSIR Objections, Exh. C, July 28, 2005 Statement at pp. 5-6. She said that Defendant told her to take a shower, which was his signal that she should prepare for sex. When she said that she did not want to, Sharko says Defendant told her that he did not care what she thought or felt. When she still did not comply, he grabbed Sharko and put her in the shower. When she came out of the shower, Defendant was waiting by the bedroom door and pushed her inside. Once inside, they had sex while she tried to fight back.
Thereafter, she said that he came to her apartment two or three times per week (for nine months) and forced her to have sex with him. She said he admonished her when she protested by saying "stop being a little girl" and advised that it was "best" for her. Sharko says that she felt there was no use fighting Defendant because she would lose as Defendant was relentless and always got his way. She says Defendant was rough during sex and would often leave bite marks on her shoulder and back, strangle her by putting his arm across her throat, and forcefully slap her on her rear end.
Miroshko corroborates Sharko's claim. She said Defendant and Aronov would often come to their apartment and force them to have sex; Defendant with Sharko, Aronov with Miroshko. Def. Exh. 4. Miroshko says she and Sharko argued with Defendant and Aronov but it was useless. Id.
Aronov also corroborates Sharko's claim. He stated that he was present on one occasion in the fall of 2004 when Defendant directed Sharko to prepare for sex by showering. When she refused to shower or go to the bedroom, Aronov says Defendant grabbed her hand and dragged her — while she resisted — to the bedroom. Aronov Stipulation of Facts at ¶ 22.
Defendant contends that Sharko's lack of credibility is demonstrated by the fact that she initially lied to agents about the nature of her work while in Ukraine. She first told the agents that she only worked as a waitress in Gonikman's club. Two months later, she admitted that she worked as a topless dancer. Over one year after the first interview, she admitted that she also engaged in sexual activity with the customers.
Defendant also points out that Sharko did not claim that she was forced to have sex with him until her third interview, just over one month after first speaking with the agents. Defendant, however, incorrectly paraphrases one of Sharko's statements during that interview to suggest that she said he asked for sex, rather than demanded or forced it. Defendant says, "Ms. Sharko stated that her decision to have sex with Mr. Maksimenko was based on the fact that it would be better to tolerate Mr. Maksimenko for two minutes than to tolerate him all day asking for sex." Def. br. at p. 6. In fact, Sharko never said that Defendant "asked" for sex. When her statement is read accurately and in its entirety, it is clear that Sharko actually says that Defendant would punish her in various ways if she did not acquiesce and that she was afraid of him:
SHARKO stated that part of her decision to submit to sex with MAKSIMENKO was because it would be better to tolerate something for two minutes than to tolerate him all day. SHARKO stated that MAKSIMENKO would complain and reprimand you all week. MAKSIMENKO's behavior was a way of controlling them. He controlled them by bothering them. He was the same way towards her when getting her to work as when he wanted her to have sex with him. . . . MAKSIMENKO constantly told her that you are not a little girl, you need it. If she refused she knew she would have to argue with him. She knew that if she refused he would just shut the door and not let her go to the store or anywhere and it would concern her job all week. The combination of SHARKO's fears of being locked in the basement, being shot with the gun as well being hit made up her decision to submit to sex with MAKSIMENKO.
Gov't PSIR Objections, Exh. C, March 17, 2005 Statement at pp. 5-6. Sharko's reference to being locked in a basement and being shot are based on other statements where she described being held in the basement of Defendant's house as punishment for lying and having seen Defendant with a gun. Earlier in her March 17, 2005 statement, Sharko also said that when she argued with Defendant about not having sex he would grab her and push her into the shower.
Defendant erroneously asserts that neither Skidan nor Sharko asserted that he used force or violence to get sex. To the contrary, however, Skidan says Defendant hit her and held her down when she resisted sex the first time. Sharko says that when she first refused to have sex with Defendant, he grabbed her and put her in the shower, pushed her into the bedroom, and had sex with her while she fought him. Aronov corroborates both women's claims. He recounted one occasion where Skidan protested and Defendant pushed her into the bedroom. Similarly, Aronov says he once saw Defendant grab Sharko's hand and drag her — while she resisted — to the bedroom after she refused to prepare for sex on demand.
c. Other Allegations of Sexual Abuse
Contrary to Defendant's claim that only two women alleged that they were forced to have sex with him, the Government presents a statement from a third woman who made similar allegations but was not willing to testify, and a third party statement about a fourth woman who fled the country before the Government's investigation began and refused to return to give testimony.
Galyna Kurganska was recruited by Defendant from Ukraine and held under the same circumstances described by Skidan and Sharko. Kurganska says that Defendant never hit her, but she was afraid of him because of things she heard from the other women. Gov't Exh. D at p. 5. And, he threatened her on one occasion when he put his foot by her head and told her that he could stomp her head. Id at p. 10. When Defendant approached Kurganska for sex she says that she told him no, but he screamed at her, told her to "behave well" and coerced her to go along. Id at 5, 10. Kurganska said she felt she had to have sex with him because she thought he would beat or hit her. Id at 6.
The Government also presents a report of an interview with Tim Nowatzke who had a relationship with a woman who worked for Defendant, Lena Reznickova. Gov't. Exh. E. Nowatzke said Reznickova was recruited from Ukraine and worked under similar but slightly less restrictive circumstances than other women described. That is, she was allowed to drive herself around and to keep some of her earnings. But, Nowatzke says Reznickova told him that Defendant and Aronov threatened and beat her on numerous occasions. Consistent with her claim, Nowatzke says he often saw bruises on her arms and legs. Reznickova also told him that Defendant and Aronov raped her three to five times at gunpoint. Reznickova eventually fled to Chicago and then to the Czech Republic.
Aronov denies Reznickova's alleged claims. In a statement to investigators Aronov said Reznickova had an "ongoing consensual sexual relationship" with Maksimenko. Gov't Supp. br., Exh H at p. 5. Aronov also said that neither he nor Maksimenko ever forced Reznickova to have sex at gunpoint. Aronov said that he never saw Maksimenko use a gun towards any of the women to coerce sex; rather, Maksimenko relied solely on physical intimidation. And, Aronov said that he never had sex with Reznickova.
d. Parity with Aronov
The Government says that it has not sought an enhancement against Aronov for criminal sexual abuse because there is insufficient evidence to support it. The Government says that only Miroshko claimed that Aronov forced her to have sex, and when pressed for an explanation of why she felt it was not consensual she could not give specific evidence associated with the sexual encounters themselves. She instead felt that the overall atmosphere of intimidation, together with the imbalance of power, made her sex with Aronov non-consensual. Also, the Government says Defendant's statement to agents undercut a sexual abuse enhancement for Aronov because he said that when Miroshko said that she did not want to have sex with Aronov anymore, Aronov said that was fine and the sex ceased. Gov't. Exh. B at p. 7. Although Miroshko's perception that the sex was not consensual is legitimate and reasonable, the Government says it concluded that it would be difficult to sustain its burden of proof at sentencing without more specific evidence. It is also for this reason, says the Government, that it did not seek an adjustment against Defendant for a number of other women with whom he had sex.
ii. Analysis
The Government met its burden. It presented credible evidence, which Defendant does not persuasively rebut, that Defendant sexually abused Skidan and Sharko while holding them against their will. Skidan and Sharko recount similar experiences where Defendant used force and coercion to compel them to have sex with him on demand. Their allegations are corroborated by Miroshko and Aronov. And, most telling, Defendant admitted that he: 1) felt that he was entitled to have sex with the women who worked for him; 2) threatened the women with deportation if they refused; 3) told Skidan that she had to have sex with him because she owed him money; and 4) understood the distinction between sexual relations with the women who worked for him and consensual sex during a relationship.
Because there is ample evidence that Defendant used physical and psychological coercion to compel Skidan and Sharko to have sex with him repeatedly and over their protests, the Court grants the Government's request for a three-level enhancement for criminal sexual abuse. With the enhancement to an offense level of 37 and a criminal history category of I, Defendant's Guideline range is 210-262 months.
The Court will address the Government's substantial assistance motion for downward departure, and the 18 U.S.C. § 3553(a) factors at the sentencing hearing.
IT IS SO ORDERED.