United States v. Borodyonok , 286 F. App'x 97 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VADYM VALERIYOVICH BORODYONOK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:07-cr-00134-RGD-FBS-1)
Submitted: June 19, 2008 Decided: July 16, 2008
Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William J. Holmes, Virginia Beach, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Joseph E. DePadilla, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On August 1, 2007, Vadym Valeriyovich Borodyonok was
indicted for conspiracy to commit immigration fraud, in violation
of 18 U.S.C. § 371 (2000) (Count One) and marriage fraud, in
violation of 8 U.S.C. § 1325(c) (2000) (Count Two). Following a
jury trial, Borodyonok was convicted of both counts. He now
appeals, alleging he was denied a fair trial because the trial
court’s interjections clearly conveyed to the jury the court’s
belief that Borodyonok was guilty and because the court essentially
directed a guilty verdict through its biased jury instructions. We
affirm the judgment of the district court.
Borodyonok failed to object to the district court’s
interjections and questions. Accordingly, his claim is reviewed
for plain error. Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 732 (1993). As support for his claim that the
court’s interruptions deprived him of a fair trial, Borodyonok
notes that the district court sua sponte interrupted defense
counsel sixteen times, told defense counsel to move along eight
times, and held three sidebars in the presence of the jury where he
criticized defense counsel. We have independently reviewed the
record and determined that the interjections complained of by
Borodyonok were well within the district court’s discretion to
efficiently manage the presentation of admissible evidence.
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Accordingly, Borodyonok fails to demonstrate the district court
erred, much less committed plain error.*
Moreover, when the transcript is viewed as a whole, the
record reveals no bias on the part of the district court as the
district court also told the Government’s attorney to “move along,”
corrected and criticized the Government’s attorney in front of the
jury, and took an active role in the questioning of at least one of
the Government’s witnesses. United States v. Parodi, 703 F.2d 768,
776 (4th Cir. 1983). The transcript shows at most a trial judge’s
ordinary efforts to control the mode and order of the presentation
of evidence and to prevent Borodyonok’s trial from unnecessarily
consuming judicial resources. United States v. Castnor, 50 F.3d
1267, 1274 (4th Cir. 1995); United States v. Smith, 452 F.3d 323,
332 (4th Cir. 2006). Accordingly, Borodyonok’s claim fails.
Borodyonok next claims the district court exhibited a
lack of impartiality in charging the jury that, to sustain a
conviction on Count One, the Government had to prove either
conspiracy to evade immigration laws or conspiracy to make a false
statement to immigration officials, even though the two clauses
*
To the extent Borodyonok claims bias by the district court in
threatening defense counsel with sanctions in front of the jury,
his claim is without merit as the record clearly shows the jury was
outside the courtroom when counsel was threatened with a fine for
asking repetitious questions. Also, Borodyonok suffered no
prejudice in being initially prevented from questioning his
girlfriend on why he was sent to Los Angeles because, immediately
following a sidebar, counsel was permitted to question the witness
on this point.
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were joined by the word “and” in the indictment. As the evidence
was sufficient on either of the acts charged, the instruction was
proper, and Borodyonok’s claim is without merit. United
States v. Hawkes, 753 F.2d 355, 357 (4th Cir. 1985) (citing
Turner v. United States, 396 U.S. 398, 420 (1970)).
Borodyonok also claims the district court’s lack of
impartiality was demonstrated in charging the jury that the
Government need only prove that at least one of Borodyonok’s
purposes in marrying Ashley Farrell, a U.S. citizen, was to evade
the immigration laws and that it did not have to be his sole
purpose. That Borodyonok may have married Farrell with the
additional intent of having consensual sex with her, as he claimed,
or raping her, as she alleged, does not somehow mitigate his intent
to violate the immigration laws. Accordingly, his claim is without
merit.
Borodyonok also claims the district court’s bias was
exhibited in instructing the jury that “it did not matter which two
people entered into the illegal agreement or conspiracy.” The
district court properly instructed the jury twice that the
Government had to prove Borodyonok knowingly, willfully and
voluntarily became a participant in or member of the conspiracy.
Accordingly, Borodyonok’s claim is without merit.
Finally, Borodyonok claims the district court
demonstrated its lack of impartiality in instructing the jury that
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“[t]here isn’t any issue about overt acts in this case. We need
not spend a whole lot of time on it, because the marriage actually
took place, and that’s an overt act if you find there was an
agreement.” The district court also provided detailed instruction
as to a number of other facts as to which there was no dispute, and
emphasized that the primary issue for the jury’s consideration was
the defendant’s intent in entering into the marriage and whether an
agreement existed sufficient to support the conspiracy charge.
Any error by the district court in instructing the jury
was harmless as defense counsel admitted during closing argument
several of the overt acts occurred; counsel informed the jury that
the issue for them to decide was Borodyonok’s intent in marrying
Farrell; the district court gave the jury a cautionary instruction
related to its comments on the evidence; and the evidence of
Borodyonok’s guilt was overwhelming. Neder v. United States, 527
U.S. 1, 18 (1999). Accordingly, we affirm the judgment of the
district court. We dispense with oral argument as the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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