United States v. Andrej Sarkoezi ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREJ SARKOEZI, a/k/a Andrew
No. 99-4158
Smith, a/k/a Andre Sar, a/k/a
Ondrej Sarkoezi; MAGDALEN
KARWAY SARKOEZI, a/k/a Magda
Smith, a/k/a Magda Sar,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-98-140)
Submitted: May 31, 2000
Decided: June 28, 2000
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Camille M. Abate, ABATE & PREUSS, New York, New York, for
Appellants. Mark T. Calloway, United States Attorney, Brian L.
Whisler, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Andrej Sarkoezi and Magdalen Sarkoezi each pled guilty to one
count of conspiracy to transport stolen goods, wares, and merchandise
with a value of $5000 or more in interstate commerce, and conspiracy
to receive, conceal, store or dispose of said goods, knowing the goods
to have been stolen, converted or taken by fraud in violation of 18
U.S.C. § 371 (1994). On appeal, the Sarkoezis claim that: (1) the dis-
trict court was without jurisdiction because the indictment did not
charge a criminal offense; (2) the Government breached the plea
agreement; (3) counsel was ineffective; and (4) they were denied due
process of law because the Government breached the plea agreement
and counsel was ineffective. Finding no reversible error, we affirm.
"To pass constitutional muster, an indictment must (1) indicate the
elements of the offense and fairly inform the defendant of the exact
charges and (2) enable the defendant to plead double jeopardy in sub-
sequent prosecutions for the same offense." United States v. Williams,
152 F.3d 294, 299 (4th Cir. 1998). An indictment that tracks the lan-
guage of the statute is generally sufficient to apprise the defendant of
the charged criminal conduct. See United States v. American Waste
Fibers Co., 809 F.2d 1044, 1046 (4th Cir. 1987). Because the indict-
ment in this instance tracked the language of the statute, we find that
it charged criminal conduct. This claim also fails insofar as the
Sarkoezis contend that the overt acts depicted in the indictment do not
describe criminal conduct. The overt acts are not the charged crime
and do not have to describe criminal conduct. See United States v.
Jerkins, 871 F.2d 598, 602-03 (6th Cir. 1989); Reese v. United States,
353 F.2d 732, 734 (5th Cir. 1965).
We also find that the Government did not breach the written plea
agreements. The Sarkoezis claim that the Government orally agreed
to rely on the presentence investigation report in its determination as
2
to the value of the art. The Sarkoezis also claim that the Government
agreed to file a motion for downward departure under U.S. Sentencing
Guidelines § 5K1.1 (1997). There is no evidence of an oral agreement
as to the value of the stolen art. The plea agreements also contained
integration clauses that preclude consideration of any alleged oral
agreements. See United States v. Hunt, 205 F.3d 931, 935 (6th Cir.
2000); United States v. Alegria, 192 F.3d 179, 185-86 (1st Cir. 1999).
Furthermore, in the written plea agreements the Government retained
sole discretion to file a motion under USSG § 5K1.1, so its refusal to
so move did not violate the plea agreements. See United States v.
Wallace, 22 F.3d 84, 87 (1994).
It is well established that we will only consider a claim of ineffec-
tive assistance of counsel "in the first instance on direct appeal if and
only if it conclusively appears from the record that her counsel did not
provide effective assistance." United States v. Smith, 62 F.3d 641, 651
(4th Cir. 1995) (internal quotation omitted). Because it does not con-
clusively appear in the record that counsel did not provide effective
representation, the Sarkoezis' ineffective assistance of counsel claims
are not reviewable on direct appeal. See, e.g. , United States v. Tatum,
943 F.2d 370, 379 (4th Cir. 1991) (observing that questions about the
competency of trial counsel typically are "best left for collateral
review"). Finally, because we find no merit to the Sarkoezis' claims,
there was no due process violation.
Accordingly, we affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3