United States v. Davron D. Dadamuratov , 340 F. App'x 540 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 28, 2009
No. 08-15900 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00018-CR-5--RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVRON D. DADAMURATOV,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 28, 2009)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Davron D. Dadamuratov appeals his conviction for copyright infringement
of motion pictures, in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(a)
and (b). After review, we affirm.
I. BACKGROUND
Dadamuratov was charged with knowingly and willfully reproducing and
distributing more than 10 copies of motion pictures without authorization from the
copyright holders, in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(a)
and (b). The government contended that Dadumartov downloaded movies from
the Internet, copied them to discs, and rented the movies to customers at the
Moscow Grocery and Internet Café (“Moscow Grocery”), the grocery store he
managed.
A. Trial Evidence
Law enforcement became aware of the Moscow Grocery’s movie rental
business on September 2, 2007. Customer Vahe Arshakyan demanded a refund
from Olga Zubova, a Moscow Grocery store clerk, because the four DVD movies
that he rented would not play in his DVD player. Zubova checked the DVDs in the
store’s DVD player and found that they all played. Zubova told Arshakyan that
she could exchange the DVDs for others in the store but could not give him a
refund. Arshakyan yelled, called Zubova names, and pushed her. Zubova tried to
call 911 from the store’s phone but Arshakyan pulled the phone cord from the wall.
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Zubova called 911 from her cell phone.
Sergeant Clayton Jordan, an officer with the Panama City Beach Police
Department, responded to Zubova’s 911 call. As Officer Jordan was speaking to
Zubova, Dadamuratov approached them and introduced himself to Officer Jordan
as the store owner. Dadamuratov explained that the Moscow Grocery rented
movies, sold international groceries and phone cards, and offered Internet access.
Zubova and Dadamuratov showed Officer Jordan one of the DVDs that was at
issue in the dispute with Arshakyan. The DVD case appeared to be for an old
Russian war movie and had Russian writing on it. Zubova and Dadamuratov said
the DVD was the movie Die Hard IV, which was still in theaters at the time.
Zubova played the DVD for Officer Jordan in the DVD player at the store counter.
Officer Jordan testified that Dadamuratov said he “downloads the movies
already dubbed over into Russian dialogue from the computer. Then he rents them
out.” Dadamuratov showed Officer Jordan the log book that he used to keep track
of DVD rentals and said that he rented the movies for $2 a day.
Officer Jordan brought Zubova and Dadamuratov to his patrol car to record
interviews with both of them using a micro-cassette recorder. Officer Jordan went
through the same questions that he had asked them inside the store. During the
interview, Dadamuratov told Officer Jordan that he had owned the store since 2004
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with another person who was no longer around and that Dadamuratov “runs the
show.” Dadamuratov also said that he personally rented the movies to Arshakyan.
Officer Jordan brought the micro-cassettes that contained the interviews of
Zubova and Dadamuratov to the police station and gave them to Jessica
Bruhmuller, the police department’s investigative secretary, for transcription. At
trial, Officer Jordan testified that the transcripts of Zubova’s and Dadamuratov’s
interviews accurately reflected their conversations. Bruhmuller testified that she
transcribed the two interviews and that the transcripts were “word for word” what
she was able to hear and understand from the recordings.1
Before the government published the transcript of Dadamuratov’s interview,
the district court explained to the jury that the government contended that the
transcript reflected an interview between Dadamuratov and Officer Jordan. The
district court instructed the jury, “If you determine that the transcript is in any
respect incorrect or unreliable, you should disregard it to that extent.” Bruhmuller
read the transcript to the jury.
According to the transcript, when Officer Jordan asked Dadamuratov what
his position was at the store, Dadamuratov responded that he was one of the
1
As discussed later, after the transcripts were prepared, law enforcement officers
accidentally destroyed the recording of the interviews as they attempted to transfer the recording
from a micro-cassette to a digital format. The district court overruled Dadamuratov’s objection
to the admission of the transcript of his interview with Officer Jordan as evidence.
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owners of Moscow Grocery, along with a man named Yusup, since 2004 and that
Dadamuratov was “the one running the show now.” Dadamuratov told Officer
Jordan that, the day before, he had rented four movies—two Russian movies and
two American movies that had been translated into Russian—to “Vahe.” When
Officer Jordan asked where Dadamuratov got the movies, Dadamuratov responded,
“Most of them we download from the computer.” Dadamuratov said he had been
downloading movies, burning them to DVDs, and renting them “since we opened.”
When asked where he downloaded the movies, Dadamuratov said, “I don’t do it. I
had a guy who was doing from [a] free download website.”
Christopher Murphy, a special agent with Immigration and Customs
Enforcement, testified that he became aware of the Moscow Grocery’s rental of
potential copyrighted material while working on Arshakyan’s case. Special Agent
Murphy investigated further and obtained a federal search warrant for the Moscow
Grocery. In executing the search of the Moscow Grocery on October 5, 2007, law
enforcement officers seized: eight computers; three hard drives; several DVD and
VHS players and recorders that could record from a VHS tape or DVD onto a
DVD; 562 VHS tapes; 897 DVDs; and stacks of blank, recordable DVDs and DVD
covers. The officers also seized a logbook containing dates, renters’ names, and
movie titles, which documented rentals from January 2005 through October 2007.
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Special Agent Murphy testified that the movies that were being rented by the
Moscow Grocery did not resemble movies from other movie rental stores like
Blockbuster because there was no art work on them. Some of the discs had movies
on each side of a recordable DVD.
Special Agent Murphy and other officers watched all the movies to
determine which were American and were created during the 180-day period
charged in the indictment. The DVDs seized from the Moscow Grocery were
distinct from DVD rentals at ordinary movie rental stores in that (1) several did not
contain FBI warnings at the beginning; (2) instead of playing previews of other
movies as rental videos usually do, the opening scene on several of the DVDs was
an advertisement for the Moscow Grocery; (3) they did not have credits at the end;
(4) some were filmed by individuals with video cameras in a movie theater; and (5)
some of the movies were screening versions from the Motion Picture Association
that contained a warning to the public that they should not be viewing the
copyrighted film. In addition, Special Agent Murphy stated that several documents
filed with the Florida Department of State listed Dadamuratov as the owner or
managing member of the Moscow Grocery.
Zubova testified that she had known Dadamuratov and Yusup Kabuljanov,
the other owner of the Moscow Grocery, for approximately four years. In
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September or October 2006, Kabuljanov left the United States and has not returned
since. Zubova started working part-time at the Moscow Grocery and kept records
of groceries. In December 2006, Dadamuratov hired her as a full-time employee
and trained her. Zubova testified that Dadamuratov managed the Moscow Grocery
after Kabuljanov left the country.
Zubova performed duties in all parts of the Moscow Grocery’s business,
including movie rentals. Zubova testified that Dadamuratov gave her new movies
to add to the other rentals and that she labeled and organized the rental movies in a
book so it would be easier for customers to browse them.
On cross-examination, defense counsel asked Zubova about her April 2008
interview with Special Agent Murphy that occurred after Dadamuratov was
arrested. When asked if she requested a lawyer during that interview, Zubova
responded that there was one question that she did not understand and that she said
she would not answer and needed a lawyer. When asked if she requested a lawyer
twice during the interview, Zubova said that “it was long ago, and I was quite
scared, so maybe.” Defense counsel asked if she was afraid because she was being
questioned by law enforcement. Zubova responded, “Everything happened all of a
sudden, and I didn’t expect anything would happen to [Dadamuratov].”
Defense counsel asked to play a recording of Zubova’s April 2008
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interview. The government objected that the tape was hearsay, unless it was being
used to impeach Zubova. Defense counsel stated that she intended to use the
interview to impeach Zubova’s testimony that Dadamuratov gave her the DVDs
and to show that the interviewing agent was suggesting answers to her. The
government requested that the district court admit the entire recording because
Zubova also stated during the interview that Dadamuratov gave her the tapes. The
district court told defense counsel to question Zubova about the responses she gave
during that interview and then play “the part that is an inconsistent statement,” but
stated that “we are not gonna play the whole thing.”
Defense counsel resumed her questioning of Zubova and asked her several
questions about her answers in the April 2008 interview regarding who gave her
the DVDs and who ran the store. The district court instructed defense counsel to
review the recording during the court’s lunch break to find any specific
inconsistent statements that could be used for impeachment purposes. The court
was in recess for lunch for one hour and twenty minutes.
After lunch, the government briefly presented testimony from a few other
witnesses before resting its case. Dadamuratov moved for a judgment of acquittal
on the grounds that the government had failed to establish, inter alia, that he made
the counterfeit DVDs or otherwise had any knowledge of what was on them. The
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district court denied the motion.
Defense counsel stated that Dadamuratov would not present any evidence in
his defense but reiterated his argument that he should be permitted to play
Zubova’s April 2008 interview for the jury to show that Zubova was intimidated
by the interviewing officer. Defense counsel stated that she was unable to review
the recording of the interview to find the inconsistent portions to be used for
impeachment purposes because her CD player would not play the disc. The district
court again stated that it would not allow the entire 30-minute interview to be
played and that the interview was admissible for impeachment purposes only. The
district court also noted that defense counsel could have retrieved another CD
player but failed to do so.
The jury found Dadamuratov guilty.
After the jury’s verdict, Dadamuratov renewed his motion for judgment of
acquittal on the ground that the government had failed to establish that he willfully
committed a copyright violation. Dadamuratov alternatively moved for a new trial
based on the government’s use of the transcript of his interview with Officer
Jordan and the district court’s refusal to permit him to play Zubova’s taped
statement for the jury. The district court denied his motions.
The district court sentenced Dadamuratov to 24 months’ imprisonment.
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Dadamuratov appeals his conviction.
II. BACKGROUND
A. Sufficiency of the Evidence
It is a criminal offense to (1) willfully (2) infringe a copyright, if (3) “the
infringement was committed -- (A) for purposes of commercial advantage or
private financial gain; (B) by the reproduction or distribution . . . during any
180-day period, of 1 or more copies . . . of 1 or more copyrighted works, which
have a total retail value of more than $1,000; or (C) by the distribution of a work
being prepared for commercial distribution . . . , if such person knew or should
have known that the work was intended for commercial distribution.” 17 U.S.C. §
506(a); see also United States v. Goss, 803 F.2d 638, 642 (11th Cir. 1986).
Dadamuratov argues that the evidence was insufficient to show that he willfully
infringed a copyright.2
Here, the evidence showed that Dadamuratov was one of the owners of the
Moscow Grocery and had been managing the store since Kabuljanov left the
country in 2006. In fact, Dadamuratov introduced himself to Officer Jordan as the
2
We review de novo a claim of insufficiency of the evidence. United States v. Nolan,
223 F.3d 1311, 1314 (11th Cir. 2000). We view the evidence in the light most favorable to the
government and will affirm a conviction if, based on this evidence, “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation
marks omitted).
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owner of the Moscow Grocery and told Jordan that he was “the one running the
show now.” In addition, Zubova testified that Dadamuratov hired and trained her.
While Dadamuratov argues that the evidence showed that Kabuljanov was running
the Moscow Grocery from out of the country through Zubova, it was within the
province of the jury to believe Dadamuratov’s own statements that he was the
owner and operator of the Moscow Grocery. United States v. Thompson, 473 F.3d
1137, 1142 (11th Cir. 2006) (“The jury gets to make any credibility choices, and
we will assume that they made them all in the way that supports the verdict.”);
United States v. Hernandez, 141 F.3d 1042, 1052 (11th Cir. 1998) (“It is
emphatically not within the province of an appellate court to reweigh the evidence
and the credibility of the witnesses at trial.”).
Dadamuratov also admitted to Officer Jordan that the Moscow Grocery
downloads movies for free from the Internet, burns them to DVDs, and rents them
to customers. According to Jordan, Dadamuratov said he “downloads the movies
already dubbed over into Russian dialogue from the computer. Then he rents them
out.” When asked later where he got the movies, Dadamuratov responded, “Most
of them we download from the computer.” Dadamuratov said he had a guy who
downloaded the movies from a free website and that the Moscow Grocery had
been downloading movies, burning them to DVDs, and renting them since it
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opened. Law enforcement officers seized electronic equipment at the Moscow
Grocery that revealed the extensive nature of this operation, including multiple
computers, hard drives, and machines to record from a VHS tape or DVD onto a
DVD; hundreds of VHS tapes and DVDs; and stacks of blank, recordable DVDs
and DVD covers.3
There was evidence from which the jury reasonably could have concluded
that Dadamuratov was an active participant in the illegal movie rental enterprise at
the Moscow Grocery. Zubova testified that Dadamuratov was the person who
gave her new movies to catalog with the other rentals. In addition, Dadamuratov
admitted that he personally rented four movies to Arshakyan. One of these movies
was a recordable DVD copy of the movie Die Hard IV, which was still playing in
theaters at the time, that was rented in a DVD case that appeared to be from an old
Russian war movie.
Finally, there was evidence that the movies being rented by the Moscow
Grocery were not authorized copies. Specifically, the officers who seized and
viewed the DVDs observed that some of the DVDs (1) were on recordable DVD
3
Dadamuratov argues that the fact that none of this equipment was removed from the
Moscow Grocery between the time of the incident with Arshakyan on September 2, 2007 and the
search on October 2, 2007 shows that Dadamuratov lacked knowledge that there was any illegal
material in the Moscow Grocery. However, the jury reasonably could have concluded that
Dadamuratov did not remove any of the equipment because he believed that the police’s
investigation was focused on Arshakyan’s alleged battery, not on the Moscow Grocery’s
operations.
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discs with no art work, (2) had movies on each side of a recordable DVD, (3)
lacked FBI warnings, movie previews, and credits, (4) appeared to be filmed by an
individual with a video camera in a movie theater, and (5) were screening versions
from the Motion Picture Association that contained a warning that they should not
be viewed by the public.
The totality of this evidence, with all reasonable inferences being made in
favor of the jury’s verdict, supports a finding that Dadamuratov was the owner and
manager of a store that operated an enterprise of reproducing and distributing
copies of copyrighted movies and that he was personally involved in this movie
rental enterprise. The evidence, while circumstantial, supports a finding that
Dadamuratov was aware that the downloaded movies on the DVDs that were being
produced and distributed by the Moscow Grocery were copyrighted material.
B. Admission of the Transcript of Dadamuratov’s Interview
Dadamuratov argues that the district court erred in denying him a new trial
based on the admission of the transcript of his interview with Officer Jordan after
the original recording of the interview was destroyed.4 Before trial, the
government filed a Notice of Accidental Destruction of Evidence regarding a
recording of an interview of Dadamuratov by local law enforcement officers that
4
We review a district court’s denial of a motion for a new trial for an abuse of discretion.
United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir. 2007).
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was taken while they were investigating a possible theft and battery at the Moscow
Grocery. After the interview was transcribed, other law enforcement officers
attempted to transfer the recording to a digital format, but accidentally taped over
the recording. Dadumuratov objected to the admission of the transcript at trial on
several grounds. The district court rejected each of Dadamuratov’s arguments and
admitted the transcript in lieu of the recording.
On appeal, Dadamuratov raises three arguments, which we address in turn.
First, Dadamuratov argues that the transcript should not have been admitted as
evidence because it was not the best evidence of the conversation. “To prove the
content of a writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in these rules . . . .” Fed. R.
Evid. 1002. However, “[t]he original is not required, and other evidence of the
contents of a writing, recording, or photograph is admissible if . . . [a]ll originals
are lost or have been destroyed, unless the proponent lost or destroyed them in bad
faith.” Fed. R. Evid. 1004; see also United States v. Ross, 33 F.3d 1507, 1513
(11th Cir. 1994) (rejecting defendant’s best-evidence challenge to the district
court’s decision to admit transcripts of destroyed recordings of conversations
between co-conspirators and stating that “[o]nce the terms of Rule 1004 are
satisfied, the party seeking to prove the contents of the recording—here, the
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government—may do so by any kind of secondary evidence”).
Here, the district court properly admitted the transcript as secondary
evidence of the destroyed recording of the interview between Officer Jordan and
Dadamuratov under Federal Rule of Evidence 1004. In its pretrial order, the
district court found that the destruction of the recordings was accidental and not in
bad faith because (1) the interview was voluntarily initiated by Dadamuratov
during the course of the investigation of the incident with Arshakyan and thus was
not made with the purpose of implicating Dadamuratov in any crime; (2) the
interview was transcribed before the search warrant of the Moscow Grocery was
executed and before Dadamuratov was indicted; and (3) the officers who erased the
recordings were not the same officers who interviewed Dadamuratov or who
transcribed the recordings. In light of these findings, we cannot say that the district
court abused its discretion.
Second, Dadamuratov argues that the transcript was inadmissible hearsay
and that it would have been more appropriate to have a law enforcement officer
testify as to the contents of the conversation. We reject this argument because the
statements in the transcript were admissions by Dadamuratov, a party-opponent,
and thus were not hearsay when offered as evidence against him. See Fed. R. Evid.
801(d)(2)(A); Ross, 33 F.3d at 1514 n.9.
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Finally, Dadamuratov objects to the authenticity of the transcript. “The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Fed. R. Evid. 901(a). Officer Jordan
testified that the transcript accurately reflected his conversation with Dadamuratov.
Also, Jessica Bruhmuller, the police department’s investigative secretary, testified
that she transcribed the interview and that the transcript was “word for word” what
she heard on the recording. We are satisfied from this evidence that the district
court properly determined that the transcript was authenticated.
For all these reasons, we conclude that the district court did not err in
denying Dadamuratov’s motion for a new trial based on the admission of the
transcript of the interview between Officer Jordan and Dadamuratov.
C. Refusal to Play the Recording of the Entire Zubova Interview
Dadamuratov also argues that the district court erred in denying him a new
trial based on the court’s refusal to allow him to play the entire recording of
Zubova’s April 2008 interview.5 Dadamuratov argues that the district court denied
him his Fifth and Sixth Amendment rights to a fair trial and theory of defense
because he was unable to establish how Zubova’s answers were coaxed by Special
5
As stated earlier, we review a district court’s denial of a motion for a new trial for an
abuse of discretion. Perez-Oliveros, 479 F.3d at 782.
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Agent Murphy.
We find no abuse of discretion by the district court in this regard, either.
Dadamuratov insisted that he needed to play the entire interview for the jury in
order to show Zubova’s motivation to testify against him. However, Dadamuratov
had the opportunity on cross-examination to inquire if Zubova had any bias or
motive to testify falsely against Dadamuratov or if her answers in the interview
were improperly suggested by the interviewing officer, and he was unsuccessful in
both regards.
Furthermore, while the district court would not allow Dadamuratov to play
the entire interview for the jury, it advised defense counsel that she could use
specific portions of the interview that were inconsistent with Zubova’s trial
testimony for impeachment. The district court instructed defense counsel to ask
Zubova questions to lay the foundation for impeachment and, during the court’s
lunch break, to find the specific portions of Zubova’s testimony that defense
counsel would use for impeachment. Defense counsel failed to locate these
portions because her CD player was not compatible with the disc. Instead of
locating another machine to find the isolated portions of the interview to use for
impeachment, as the district court instructed, defense counsel insisted that
Dadamuratov should be allowed to play the entire 30-minute interview based on
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vague allegations of bias and improper questioning. Defense counsel, however,
never identified any specific part of the interview that reflected bias by Zubova or
improper questioning by Special Agent Murphy. Thus, we cannot say the district
court abused its broad discretion in denying Dadamuratov a new trial based on its
ruling that Dadamuratov could not play for the jury the entire recording of
Zubova’s April 2008 interview.
III. CONCLUSION
For all the reasons above, we affirm Dadamuratov’s conviction.
AFFIRMED.
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