United States v. Akop Daniyelyan , 500 F. App'x 603 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30284
Plaintiff - Appellee, D.C. No. 2:10-cr-00311-TSZ-7
v.
MEMORANDUM *
AKOP DANIYELYAN,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30326
Plaintiff - Appellee, D.C. No. 2:10-cr-00311-TSZ-6
v.
GRAYR POGOSOVICH YERIKYAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted November 9, 2012
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**
Akop Daniyelyan appeals his judgment of conviction and sentence for one
count of conspiracy to commit bank fraud and one count of bank fraud. Grayr
Yerikyan appeals his sentence for one count of conspiracy to commit bank fraud,
one count of bank fraud and one count of conspiracy to commit unlawful
production of identification documents. We affirm.
1. Sufficient evidence supported Daniyelyan’s conviction for conspiracy
to commit bank fraud and for bank fraud. The evidence showed that, consistent
with a check-kiting scheme described by a co-conspirator, Daniyelyan opened
bank accounts in the name of a fraudulent business, used debit cards of other
fraudulent businesses to purchase hundreds of thousands of dollars of cigarettes,
purchased the cigarettes by drawing on accounts whose balances were artificially
inflated and stayed in close communication with other members of the conspiracy
while purchasing these cigarettes. See United States v. Chung, 659 F.3d 815, 823
(9th Cir. 2011) (“We review the sufficiency of the evidence de novo to determine
whether, ‘viewing the evidence in the light most favorable to the prosecution, any
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S. District
Court for the Western District of Michigan, sitting by designation.
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rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))).
2. There was no plain error when the prosecutor stated in closing
argument that Daniyelyan had lied to the bank associate who helped him open the
bank accounts and that Daniyelyan had lied on the stand, because the prosecutor
did not personally vouch against Daniyelyan’s trial testimony and it was a
reasonable inference from the evidence that Daniyelyan had lied to open the bank
accounts and on the stand. See United States v. Moreland, 622 F.3d 1147, 1161-62
(9th Cir. 2010); United States v. Weatherspoon, 410 F.3d 1142, 1147 n.3 (9th Cir.
2005).
3. The district court did not plainly err by employing a three-level
sentencing enhancement for Yerikyan based on his role as a manager or supervisor
of the conspiracy. The evidence showed that Yerikyan supervised at least one co-
conspirator in opening fraudulent bank accounts. See United States v. Egge, 223
F.3d 1128, 1132 (9th Cir. 2000).
4. The district court did not plainly err by imposing a condition of
supervised release that prohibited Daniyelyan and Yerikyan from frequenting
places where controlled substances are illegally sold, used, distributed or
administered. Even if the release condition was error, for error to be “plain,” it
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must affect substantial rights, see Moreland, 622 F.3d at 1158, but the right to
frequent places where controlled substances are illegally sold, used, distributed or
administered is not a substantial right. We construe this condition to exclude
unintentional violations. See United States v. Vega, 545 F.3d 743, 750 (9th Cir.
2008).
AFFIRMED.
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