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United States v. Diatlova

United States District Court, E.D. New York

May 3, 2017

UNITED STATES OF AMERICA,
v.
ANASTASIA DIATLOVA, Defendant.

          BRIDGET RHODE United States Attorney, EDNY By: Richard Tucker Claire S. Kedeshian Hilary Jager Una A. Dean Attorneys for the United States

          WILSON SONS INI GOODRICH & ROSATI Morris Fodeman Megan Wall-Wolff Attorney for Defendant Anastasia Diatlova

          MEMORANDUM AND ORDER

          JOHNSON, U.S.D.J.

         On October 26, 2015, defendant Anastasia Diatlova ("Diatlova" or "Defendant") was convicted of two counts: (1) conspiring both to violate the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1707 ("IEEPA"), and to commit wire fraud, pursuant to Title 18 U.S.C. § 1343 (Count One); and (2) one substantive count of violating the IEEPA by shipping an export-controlled microelectronic to Russia without obtaining the required permission from the Department of Commerce ("DOC") in her capacity as a salesperson at Arc Electronics. Presently before the Court is Defendant's motion for a Judgment of Acquittal and a New Trial pursuant to Federal Rules of Criminal Procedure 29 and 33, respectively.[1] Based on the submissions of the parties, the oral arguments held on June 29, 2016 and December 1, 2016, and for the reasons stated below, Diatlova's Rule 33 motion is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         The facts and circumstances surrounding the instant action are, in large part, set forth in this Court's September 201, 4 order denying various pre-trial motions and familiarity therewith is assumed. (Dkt. No. 256.) Briefly, on November 6, 2014, Diatlova and ten other individuals were charged in a 17-count superseding indictment related to their employment at Arc Electronics, Inc. ("Arc"), a Houston-based company "engaged in the export of microelectronics and other high-tech products." (See Superseding Indictment ¶ 1.) The following is a summary of the evidence adduced at trial as it relates to Diatlova.

         Arc Electronics was founded in 2001 by Alexander Fishenko ("Fishenko") who owned and operated Arc until his 2012 arrest. Alexander Posobilov ("Posobilov") was the procurement manager at Arc, and Shavkat Abdullaev ("Abdullaev") was the shipping manager. Diatlova, along with Lydmila Bagdikian, Svetalina Zagon and Sevinj Taghiyeva, were all saleswomen at Arc. There was no evidence that their job duties went beyond the clerical. While Arc presented itself as a manufacturer of traffic lights and other railway components, it did not manufacture any goods of its own making. Arc re-sold products obtained from United States corporations to entities in Russia. Some of these products are subject to export controls under the IEEPA and require permission from the Department of Commerce before they are sold to individuals and corporations located abroad in certain countries.

         Diatlova began working at Arc in July of 2011 until her 2012 arrest. She was among the lowest-earning employees, if not the lowest. She earned a gross income of approximately $2800 per month. Her job consisted of assisting in filling orders for various parts. The orders were negotiated by co-defendant Posobilov, Arc's procurement manager, and forwarded to Diatlova. Evidence was presented at trial that certain companies demanded' of Arc certification that the electronics were in fact being incorporated into products then sold abroad without having violated the IEEPA. Specifically, representatives from Xilinx, Toshiba and Hittite testified at trial to their corporate policy of insuring compliance with export control laws.

         In her capacity of saleswoman, Diatlova was sometimes responsible for providing information as to the end-user of Arc products, not all of which were export-controlled. However, the evidence at trial indicated that Diatlova did falsify end user information. In a June 8, 2012 instant message, Diatlova expressly suggested to a representative of Russia's Kirill Forward Electronics that they provide the wrong end user to TriQuint, the United States seller, to wit: "Perhaps we can give them a different END User, for example: our end user = NIIR Federal State Unitary Enterprise radio research and Development Institution ("NIIR")...Will that work?" Kirill Yevdokimenko responded, in part, "We use NIIR much too often :). Let's give it a try...There's no harm in it, if they say no we'll say we can't ship it."

         In another instance, on April 3, 2012, Diatlova again suggested using NIIR as an end user when co-defendant Yuri Savin-(Savin") indicated that the real end user could not be determined:

Savin: So it's hard to say for me who the real end user is...I guess it's Kobra after all, but at least NIIR has a website in English.
Diatlova: Okay the latter :)

(Gov't Ex. 123-B(T).)

         However, the government presented no evidence that Diatlova either provided false end user information for items actually controlled by the IEEPA or knew that others were providing false end user information to ...


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