Opinion
08 Cr. 903 (SAS).
August 7, 2009
For the United States: Kenneth Allen Polite, Jr., Antonia Marie Apps, U.S. Attorney's Office, SDNY, New York, NY.
For Joseph Vasilevsky: Gary A. Farrell, Esq., New York, NY.
For Alexandr Spitsyn: Martin Jay Siegel, Esq., New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Defendants Joseph Vasilevsky and Alexandr Spitsyn move pursuant to Federal Rule of Criminal Procedure 29 for judgments of acquittal, or alternatively, pursuant to Rule 33 for a new trial. Spitsyn additionally moves for reconsideration of the Court's ruling denying his motion to suppress his post-arrest statements. For the reasons that follow, all motions are denied.
II. BACKGROUND
The trial in this case took place from May 11, 2009 to May 15, 2009. On May 15, 2009, defendants were found guilty by a jury of four counts: Conspiracy to Commit Fraud on a Financial Institution, Fraud on a Financial Institution, Conspiracy to Transport Stolen Property in Interstate Commerce, and Transportation of Stolen Property in Interstate Commerce. The facts of the case are in the trial record and need not be repeated here.
III. LEGAL STANDARD
A. Rule 29 Motion
To prevail on a Rule 29 motion, a defendant must show that "the evidence is insufficient to sustain a conviction." "[A] defendant making an insufficiency claim bears a very heavy burden." "The ultimate question is not whether [the court] believe[s] the evidence adduced at trial established the defendant's guilt beyond a reasonable doubt, but whether any rational trier of fact could so find." "In other words, the court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt."
United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). Accord United States v. Best, 219 F.3d 192, 200 (2d Cir. 2000).
United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004). Accord Jackson v. Virginia, 443 U.S. 307, 319 (1979).
United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (quotation marks and citation omitted). Accord United States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005).
A court must grant a motion under Rule 29 "if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." "But at the end of the day, `if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.'"
United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984).
United States v. Cassese, 428 F.3d 92, 99 (2d Cir. 2005) (quoting United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002)) (ruling on a Rule 29 motion).
In considering the sufficiency of the evidence, the court must "view all of the evidence in the light most favorable to the government." A court must analyze the pieces of evidence not separately, in isolation, but together, in conjunction with one another. Accordingly, a court must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from the others."
United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002); United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002).
See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000).
Guadagna, 183 F.3d at 130. Accord Reyes, 302 F.3d at 53 ("[W]e consider the evidence as a whole.").
"[T]he credibility of witnesses is the province of the jury, and [a court] simply cannot replace the jury's credibility determinations with [its] own." "[T]he task of choosing among competing, permissible inferences is for the [jury], not for the reviewing court." Furthermore, "the jury's verdict may be based on entirely circumstantial evidence." Because the jury is entitled to choose which inferences to draw, the Government, in presenting a case based on circumstantial evidence, "need not `exclude every reasonable hypothesis other than that of guilt.'" But "a conviction based on speculation and surmise alone cannot stand." Moreover, a "jury is entitled to a vast range of reasonable inferences, but may not base a verdict on mere speculation."
United States v. James, 239 F.3d 120, 124 (2d Cir. 2000). Accord Autuori, 212 F.3d at 114 (a court "may not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury"). Moreover, a court must "credit[] every inference that the jury might have drawn in favor of the [G]overnment." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998).
United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001).
United States v. Dae Wham Kim, 435 F.3d 182, 184 (2d Cir. 2006).
Guadagna, 183 F.3d at 130 (quoting Holland v. United States, 348 U.S. 121, 139 (1954)); Reyes, 302 F.3d at 56 (by "discount[ing] evidence of guilty knowledge entirely because there were possible . . . innocent explanations for [defendant's] conduct," the district court "failed to view the evidence in the light most favorable to the [G]overnment"); Autuori, 212 F.3d at 114 ("[T]he [G]overnment need not negate every theory of innocence.").
United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994).
United States v. Wilson, 160 F.3d 732, 737 (D.C. Cir. 1998) (quotation marks and citation omitted).
B. Rule 33 Motion
Rule 33 provides that a district court "may vacate any judgment and grant a new trial to [a] defendant if the interest of justice so requires." "It is only when it appears that an injustice has been done that there is a need for a new trial `in the interests of justice.'"
United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).
C. Motions for Reconsideration
Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court. Local Rule 6.3 applies to rulings in civil and criminal cases, and requires the moving party to file their motion within ten days of the ruling of which they seek reconsideration. A motion for reconsideration is appropriate where "`the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" A motion for reconsideration may also be granted to "`correct a clear error or prevent manifest injustice.'"
See Patterson v. United States, No. 04 Civ. 3140, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006) ("The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court.") (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).
See United States v. Kerik, 615 F. Supp. 2d 256, 276 n. 27 (S.D.N.Y. 2009) ("The applicable standard for a reconsideration motion in a criminal case is the same as the civil standard under Rule 6.3 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York").
In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation omitted).
RST (2005) Inc. v. Research in Motion Ltd., No. 07 Civ. 3737, 2009 WL 274467, at *1 (S.D.N.Y. Feb. 4, 2009) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
The purpose of Local Rule 6.3 is to "`ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'" Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively, to reargue "`those issues already considered when a party does not like the way the original motion was resolved.'" A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced," nor is it a substitute for appeal.
Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v. Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001). Accord Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005) ("[A] movant may not raise on a motion for reconsideration any matter that it did not raise previously to the court on the underlying motion sought to be reconsidered.").
United States v. Treacy, No. 08 Cr. 0366, 2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009) (quotation omitted). Accord Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the motion when the movant "seeks solely to relitigate an issue already decided.").
Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at *1 (S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)).
Associated Press v. United States Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).
See Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400 (S.D.N.Y. Oct. 6, 2008).
D. Substantive Offenses
1. Conspiracy
The elements of a conspiracy are: "(1) an agreement between two or more persons to commit an unlawful act; (2) knowingly engaging in the conspiracy intending to commit those offenses that were the objects of the conspiracy; and (3) commission of an `overt act' by one or more members of the conspiracy in furtherance of the conspiracy."
United States v. Reyes, 302 F.3d 48 (2d Cir. 2002) (citations omitted).
2. Bank Fraud
To prove that defendants have committed bank fraud, the Government must prove that the defendants "(1) engaged in a course of conduct designed to deceive a federally chartered or insured financial institution into releasing property; and (2) possessed an intent to victimize the institution by exposing it to actual or potential loss."
United States v. Crisci, 273 F.3d 235, 239-40 (2d Cir. 2001).
3. Transportation of Stolen Property in Interstate Commerce
To prove that defendants committed the offense of transportation of stolen property in interstate commerce, the Government must prove — among other elements — not only that the defendant knew the property was stolen, but also that the stolen goods were valued at $5,000 or more.
See United States v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002).
See United States v. Rogers, 9 F.3d 1025, 1032 (2d Cir. 1993).
IV. DISCUSSION
A. Rule 29 Motion
Defendants contend that the Government failed to show that defendants possessed the requisite intent to support convictions of transportation of stolen property in interstate commerce, bank fraud, and conspiracy and therefore that they are entitled to judgments of acquittal. In support of their contention, they point to the lack of direct evidence of defendants' knowledge that the checks were stolen or of their intent to defraud a financial institution. However, it is well-established that knowledge and intent may be proven by circumstantial evidence alone.
See Joseph Vasilevsky's Memorandum of Law on Post-Trial Motions ("Vasilevsky Mem.") at 12; Alexandr Spitsyn's Memorandum of Law on Post-Trial Motions ("Spitsyn Mem.") at 2.
For instance, Vasilevsky argues that "there was no evidence that Volov [the man who gave them unauthorized checks to endorse] told the defendants the checks were stolen. On the critical issue of the defendant[s'] state of mind regarding whether the checks were stolen, Volov could only opine, `he could not know it, but he could assume.'" Vasilevsky at 12. Spitsyn asserts that "[t]here was absolutely no testimony to indicate that Mr. Spitsyn knew or should have known that the checks were stolen." Spitsyn Mem. at 2.
See United States v. Chavez, 549 F.3d 119, 125 (2d Cir. 2008) (quoting United States v. Stewart, 485 F.3d 666, 671 (2d Cir. 2007) ("`Both the existence of a conspiracy and a given defendant's participation in it with the requisite knowledge and criminal intent may be established through circumstantial evidence.'"). See also Crisci, 273 F.3d at 240 ("We look to the entire circumstances of defendant's conduct as an indication of his intent.") (internal quotations omitted).
Here, the Government demonstrated that as part of the check cashing operation, defendants often reviewed the face value of the checks themselves. Indeed, it was necessary to do so in order to determine the percentage they would pay Leonid Volov and the fee West Orange Check Cashing ("WOCC") would charge for processing the checks. A reasonable jury could have inferred that defendants had ample opportunity to investigate the checks to ascertain whether the checks were indeed payable to Volov, Avenue K Clinic, or to some other individuals with whom they were not familiar. That defendants still cashed checks that were the property of other individuals suggests that they knew they were dealing with stolen property and that they intended to do so.
See Trial Transcript ("Tr.") at 386:17-22 (Leonid Volov, the Government cooperator who supplied defendants with the checks which are at issue in this case, testifying that the two meetings he had with Spitsyn consisted of him giving Spitsyn the checks and Spitsyn calculating the amount owed to Volov on a calculator).
Volov testified that the defendants charged "10 kopecks [percent]" to cash his checks. See id. at 393:22-394:1.
John Kunz, one of the West Orange Cash Checking employees, testified that the defendants would normally hand over a number of checks, and the check cashing facility would charge a 1.5% fee. See id. at 605:5-11.
Avenue K Clinic was a medical clinic owned by Volov, which he used frequently as part of an insurance fraud scheme. See id. at 365:10-21.
The Government also presented evidence showing that defendants had a practice of writing initials on the back of each check to identify who had given them the checks. A reasonable jury could have inferred that upon viewing the backs of these checks, defendants would have realized the checks were unendorsed when they were received from Volov. Indeed, Vasilevsky concedes that "[n]early all of the checks were not signed when they were given by Volov to the defendants, yet nearly all were endorsed by the time they [were] brought from WOCC to Banco Popular after being cashed." There was also testimony from the WOCC employees, John Kunz and Linda Vargas, that they would — pursuant to Vasilevsky's instructions — frequently endorse the checks if they lacked endorsement. Although Vasilevsky argues that no handwriting exemplars were taken of him so that they could be matched to the endorsements on the checks, a reasonable jury could infer that the endorsements were made by defendants or by Kunz and Vargas under the defendants' direction. Indeed, evidence that Vasilevsky gave instructions to Kunz and Vargas to endorse the checks prior to cashing is sufficient to establish intent to defraud a financial institution.
See id. at 283:9-16 (Special Agent ("SA") Brian Conolly testifying that Vasilevsky initialed each check that was cashed). See also Vasilevsky Mem. at 15 (discussing how Vasilevsky merely had to read the initials he or Spitsyn had written on the back of the bounced check to identify — albeit wrongly — that the check was given to them by Volov).
Vasilevsky Mem. at 7 (citing Tr. at 281:22-282:6).
See Tr. at 614:20-615:8 (Kunz testifying that Vargas had instructed him that it was okay to sign the backs of the checks according to Vasilevsky's instructions); 553:14-22 (Vargas testifying that 20-30% of the checks brought in by defendants were unendorsed and that she would sign them pursuant to instructions from Vasilevsky).
See Vasilevsky Mem. at 13 (citing Tr. at 282:23-283:1).
See Crisci, 273 F.3d at 239 ("The [G]overnment must prove that a bank was `an actual or intended victim' of defendant's scheme, and defendant's knowing negotiation of a bank check bearing a forged endorsement satisfies this requirement.").
Vasilevsky makes much of a tape recording of a conversation between himself and Volov in which he told Volov he did not want checks from anyone other than Volov because accepting checks from people he did not know might cause him trouble. Although Vasilevsky argues that this conversation demonstrates that he did not want any stolen checks, his comments are contradicted by his acceptance of checks bearing the names of people and entities other than Volov and Avenue K Clinic. Moreover, Volov testified that the defendants never confirmed with him that they had the authorization to sign the checks on behalf of third parties nor did they ask for certification from the companies involved.
See Tr. at 394:2-396:18.
See id. at 390:19-23 (Volov testifying that at no time did defendants ask for any corporate documents or authorizations to sign the checks). Indeed, Vargas testified that she had reminded defendants to endorse the checks prior to deposit, but that these instructions went unheeded. See Tr. at 554:15-556:14. I do note, however, that Vargas testified that she did receive some corporate documents from Vasilevsky or Spitsyn for the companies whose checks they cashed. See id. at 610:6-16
Spitsyn's post-arrest statement also confirms Spitsyn's knowledge that he was dealing with stolen checks. FBI Agent Conor O'Sullivan, one of Spitsyn's arresting officers, testified at trial that Spitsyn had told the officers that the checks were typically made payable to people he did not know. Spitsyn noted further that they were not the same people who gave him the checks. O'Sullivan also testified that Spitsyn had told the officers that the checks were unendorsed when he received them.
See id. at 718:23-719:1.
See id.
See id. at 719:2-4.
A reasonable jury could thus conclude beyond a reasonable doubt — by the foregoing evidence alone — that the defendants knew the checks were stolen and that they intended to defraud a bank. Nevertheless, additional circumstantial evidence consisting of the holding of meetings inside cars and trips across state lines to cash the checks also appears to confirm that the defendants were engaged in an illegitimate operation. I therefore reject defendants' suggestion that the jury's conclusion here was the product of speculation. To the contrary, there was enough evidence in this case that a reasonable jury could find that the defendants possessed the requisite intent based on well-reasoned inferences.
See id. at 383:13-25 (Volov testifying to meeting Vasilevsky and Spitsyn in a car to discuss the percentage that they would take to cash the check); 386:8-13 (Volov testifying to meeting Spitsyn on two later occasions in Spitsyn's car).
See id. at 260:21-261:2 (SA Conolly testifying that although all checks were exchanged between Volov and the defendants outside of the Avenue K Clinic in Brooklyn, the checks were cashed in New Jersey).
See Vasilevsky Mem. at 12 ("It was this type of speculative, unsubstantiated evidence that the Government relied upon throughout the trial. . . ."); Spitsyn's Reply Memorandum of Law at 2 ("Speculation is not proof. . . .").
Defendants' reliance on United States v. Rodriguez, 140 F.3d 163 (2d Cir. 1998), is misplaced. In that case, the Second Circuit held that no rational trier of fact could find Rodriguez guilty of bank fraud because she had not engaged in deceptive conduct as to the bank. See id. at 168. Because her deceptive conduct encompassed causing a corporation to write checks payable to her based on phony invoices, the court found that the Government had failed to prove that she possessed the requisite intent to defraud the bank, as opposed to the corporation. See id. By contrast, here, a reasonable jury could find that defendants intended to defraud a bank by endorsing checks (or causing someone else to do so) for the purpose of causing the bank to allow them access to the funds.
Vasilevsky also contends that the Government has failed to prove beyond a reasonable doubt that the stolen checks amounted to over $5,000 and therefore that defendants cannot be convicted of the transportation of stolen property in interstate commerce. He argues that the Government called only four witnesses who identified checks that the defendants cashed as belonging to them and that the total face value of those checks does not exceed $5,000. However, there is testimony that the face value of the checks Volov gave to defendants totaled over $13,000. While not all of the people and entities whose names were on the checks Volov gave to defendants testified at trial, a reasonable jury could infer that the rest of the checks were stolen as well. Defendants' Rule 29 motion is therefore denied.
See Vasilevsky Mem. at 16.
See Tr. at 258:23-259:6 (SA Conolly testifying that Volov gave Spitsyn nine checks with a total face value of $2,853 on April 7, 2008 and seven checks with a total face value of $4,640 on May 19, 2008, and then gave Vasilevsky eighteen checks with a total face value of $6,602 on May 27, 2008).
B. Rule 33 Motion
Defendants also move pursuant to Federal Rule of Criminal Procedure 33 for a new trial. Because I do not find that an injustice has been done, I deny this motion.
C. Motion for Reconsideration
Spitsyn also moves for reconsideration of the Court's ruling denying his motion to suppress the post-arrest statements made by him. The suppression hearing and ruling on this motion occurred on January 9, 2009. Thus, Spitsyn's motion is several months late. His motion also fails to present any factual matters that were overlooked by the Court. Spitsyn argues that had the Court allowed Jeannette Andreev, the Russian interpreter who was present at Spitsyn's arrest, to testify at the suppression hearing, the Court would have found her testimony to contradict the testimony of Spitsyn's arresting agents who testified that Spitsyn understood his Miranda rights. However, I based my decision not to take the testimony of Andreev on the fact that her testimony was both cumulative and irrelevant in that Spitsyn was given a written Miranda form in Russian. Spitsyn also testified that he had read and understood the paragraphs, and he had signed the form stating that he understood. Andreev's testimony that Spitsyn only speaks Russian and that she translated the interrogation of Spitsyn by the arresting agents would not have altered my decision. Spitsyn's motion for reconsideration is therefore also denied.
See Spitsyn Mem. at 4-5.
See 1/9/09 Transcript of Suppression Hearing ("Suppression Tr.").
See Spitsyn Mem. at 5.
See Suppression Tr. at 61:9-15.
See id. at 55:15-56:10. I should also note that Andreev testified at trial as Spitsyn's witness, and the jury was free to credit her testimony in full and discount Spitsyn's statements. Nevertheless, the jury appeared to credit the testimony of Agent O'Sullivan.
V. CONCLUSION
For the foregoing reasons, defendants' motions are denied. The Clerk of the Court is directed to close these motions (document nos. 46 and 51).
SO ORDERED: