Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. KOUZMINE

April 5, 1996

UNITED STATES OF AMERICA, against PHILLIPE KOUZMINE, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This decision disposes of defendants' pretrial motions to the extent not ruled upon in open court.

 Severance

 Counts 1, 3, and 5 through 8 (the "ITB Counts") charge an immigration fraud conspiracy and related substantive offenses led by one Filimanov that allegedly took place at the offices of Kazakhstan United Corp. ("KUC") and ITB New York State Corp., both located in the same premises at 855 Avenue of the Americas. Counts 2, 4 and 9 (the "Ganenko/Kouzmine Counts"), on the other hand, charge a separate and distinct immigration fraud conspiracy and related substantive counts that allegedly took place after Ganenko and Kouzmine, who initially were involved with Filimanov at KUC, had a falling out with Filimanov and went into business for themselves at another location.

 Agthe and Wilson, who are attorneys who were employed by KUC and worked at the 855 Avenue of the Americas location, are alleged to have participated in the conspiracy and certain substantive offenses that are the subject of the ITB Counts, but not in those involved in the Ganenko/Kouzmine Counts. Indeed, the government does not suggest that they had any knowledge whatever of the latter offenses. They move to sever the ITB Counts from the Ganenko/Kouzmine Counts on the ground that their joinder in the same indictment is improper.

 Joinder of offenses in a multi-defendant indictment is governed by Rule 8(b). E.g., United States v. Attanasio, 870 F.2d 809, 814 (2d Cir. 1989); United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). It permits such joinder only where, inter alia, the defendants "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). Of course, in the broadest sense, both conspiracies are part of the same series of acts or transactions constituting offenses -- just as the 1995 World Series was part of the same series of acts or transactions that began with Abner Doubleday. But, as this example demonstrates, Rule 8(b) cannot possibly be read so broadly if it is to have any practical meaning. The fundamental question therefore is whether these two conspiracies properly may be said to constitute parts of "the same series of acts or transactions constituting an offense or offenses" as that phrase is used in the Rule.

 Several cases in this circuit have concluded that the joinder of distinct conspiracies as the government has done here is improper. In United States v. Lech, 161 F.R.D. 255 (S.D.N.Y. 1995), for example, Judge Sotomayor held that the joinder of three similar albeit separate conspiracy charges was improper, notwithstanding the presence of a common defendant and similar objects, because there was no suggestion that the moving defendant knew of or participated in the schemes other than the one with which he was charged. See also United States v. Giraldo, 859 F. Supp. 52 (E.D.N.Y. 1994); United States v. Menashe, 741 F. Supp. 1135 (S.D.N.Y. 1990); United States v. Gentile, 60 F.R.D. 686 (E.D.N.Y. 1973); 1 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL ยง 144, at 515 & n. 39 (1982 & Supp. 1995) (citing cases). This seems entirely correct, as it is hard to see why the moving defendant in that case should have been burdened with the risks inherent in joinder of those alleged conspiracies simply because he had the misfortune of being charged with another defendant who was subject also to other accusations.

 So too here. Given the conceded falling out between Filimanov and Ganenko and Kouzmine, there is no colorable argument in this case, as the government acknowledges, that both conspiracies alleged here were part of a single overarching scheme. Nor is there an identity of participants. Hence, the justification for trying the defendants charged only on the ITB Counts should be tried in a case involving also the Ganenko/Kouzmine Counts is limited.

 The government's position rests on Attanasio, 870 F.2d 809, which stated that Rule 8(b) is satisfied where the acts are "'unified by some substantial identity of facts or participants,' or 'arise out of a common plan or scheme...'" Id. at 815 (quoting United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert. denied, 485 U.S. 934, 99 L. Ed. 2d 269, 108 S. Ct. 1108 (1988). It maintains that both of the conspiracies charged in this case had similar objects, that Kouzmine and Ganenko participated in both schemes and dealt with the same undercover agent and confidential informant, and that the Kouzmine/Ganenko conspiracy arose in consequence of their falling out with Filimanov.

 With due respect, the government's argument proves too much. Precisely these arguments were rejected in Lech and Menashe for the same reason -- there was no evidence that the defendants joined in the indictments were aware of or joined in all of the schemes alleged. That analysis is equally applicable here. Attanasio and the other cases cited by the government are of no help to it because each charge joined in the indictments there at issue involved a common purpose to which every defendant allegedly was committed. *fn1"

 Motion to Suppress

 Agthe moves to suppress the fruits of a search of 855 Avenue of the Americas conducted pursuant to a warrant issued by Magistrate Judge Francis. The search warrant in question authorized seizure of "all business records, files, papers, computer hard drives and discs, correspondence and other material constituting evidence of the offenses listed above." Agthe attacks this as a general warrant, contending that the fruits of the search should be suppressed because the warrant did not sufficiently particularize the things to be seized and that this failure is not excused under the "all records" exception *fn2" because the affidavit upon which the warrant issued did not demonstrate that all or most of the activities of KUC and ITB were illegal. The government rejoins that the warrant is sufficiently particular and, in any case, that suppression should be denied because the seizure was made in objectively reasonable reliance on the warrant. See United States v. Leon, 468 U.S. 897, 919-21, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).

 Agthe's objection to the breadth of the warrant is not frivolous. The agent's affidavit demonstrated his awareness that he sought visa petitions filed with the INS and a letter soliciting recipients to telephone ITB to inquire about obtaining visas, perhaps among other records. The government, moreover, tellingly indicates that it would have been obvious to agents familiar with the immigration process that "blank and completed INS forms; letters to the INS discussing the employment, education and credentials of foreign aliens, blank and completed foreign diplomas; and so forth" would be the pertinent materials. (Gov. Br. 27) Yet the warrant did not specify even those categories of documents, which distinguishes it from the warrant upheld in Andresen v. Maryland, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). See United States v. Buck, 813 F.2d 588, 591 (2d Cir.), cert. denied, 484 U.S. 857, 98 L. Ed. 2d 121, 108 S. Ct. 167 (1987). Moreover, Andresen and other cases passing upon the validity of warrants, especially for documents, have placed a good deal of weight on whether the warrant was as particular as reasonably could ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.