United States v. Alexander Sakhanskiy ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10060
Plaintiff-Appellee, D.C. No.
2:13-cr-00160-MCE-1
v.
ALEXANDER SAKHANSKIY, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10061
Plaintiff-Appellee, D.C. No.
2:13-cr-00160-MCE-2
v.
LARISA SAKHANSKIY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted March 14, 2018
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BERZON and BEA, Circuit Judges, and BERG,** District Judge.
In these consolidated appeals, Alexander and Larisa Sakhanskiy (husband
and wife) appeal their convictions under 18 U.S.C. § 844(i) (federal arson) for their
role in a fire that burned their house down in Antelope, California. The
Sakhanskiys argue that their conduct did not meet the statute’s interstate commerce
element and the district court’s instructions, as well as its answer to a jury question
on this element, were in error. They also argue that the district court erred in
allowing their former insurance attorney to testify at trial that he used the U.S.
Mail to send a letter on their behalf to the insurance company’s attorney. For the
reasons set forth below, we AFFIRM.
1. The Sakhanskiys first challenge the jury’s finding that their home was
“[a] building ... used in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce.” 18 U.S.C. § 844(i). They contend that the
evidence at trial failed to prove the interstate commerce nexus element of § 844(i)
beyond a reasonable doubt. In reviewing a claim of insufficient evidence, we
consider whether “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99
**
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
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S.Ct. 2781, 61 L.Ed.2d 560 (1979). At trial, two witnesses testified that Mr.
Sakhanskiy ran a “handy-man” business out of his home, in addition to working as
an employee of a plumbing company. The government also presented evidence
that Sakhanskiy placed advertising for the “Alexander’s Handyman” business,
obtained several years of licenses related to the business, maintained a business
bank account at a large multinational bank (Bank of America), and stored
numerous expensive construction tools on the property of his residence (several of
which were manufactured by such multinational, interstate vendors as Craftsman,
Dewalt, Hitachi, and Honda). This evidence was sufficient to permit a rational
jury to find the interstate commerce element was met. A rational jury hearing such
evidence could conclude beyond a reasonable doubt that the Sakhanskiy residence
“served as a home office or the locus of any commercial undertaking.” Jones v.
United States, 529 U.S. 848, 856, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Thus,
we conclude that this challenge is not well-taken.
2. The Sakhanskiys next contend that the district court erred by (1) failing
to instruct the jury that a conviction on the arson charge requires a finding that “the
fire substantially affected interstate commerce,” and (2) responding to a written
question from the jury during deliberations concerning the definition of “interstate
commerce.” This objection was not presented to the district court, however, so our
review is for plain error. See United States v. Del Toro-Barboza, 673 F.3d 1136,
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1146 (9th Cir. 2012). The district court’s arson jury instructions: (1) tracked the
language of § 844(i) nearly verbatim; and (2) drew upon a slightly altered phrase
from the Supreme Court’s opinion in Jones. The district court defined “interstate
commerce” by instructing the jury that “[a] building is used in interstate commerce
or in any activity affecting interstate commerce if it is used for a commercial
purpose.” In Jones, the Supreme Court concluded that a residence was not “used
in interstate . . . commerce” in part because there was no allegation that it “served
as a home office or the locus of any commercial undertaking.” Jones, 529 U.S. at
856. The district court’s instruction here was not materially different from the
language in Jones and did not constitute plain error. See United States v. Serang,
156 F.3d 910, 914 n.3 (9th Cir. 1998) (holding in relation to § 844(i) that the
appellant’s argument “that the … jury instructions were insufficient because they
did not contain the word ‘substantial’ are without merit”). Moreover, the district
court’s subsequent reference back to the instruction, in response to the jury’s
written question during deliberations about the definition of “interstate commerce,”
was not an abuse of discretion because there was no error in the jury instruction in
the first place.
3. Finally, the Sakhanskiys contend that the district court erred by allowing
their former insurance attorney, Jerry Chong, to testify about his use of the U.S.
Mail to send a letter containing Defendants’ itemized loss statement to Farmers
4 16-10060
Insurance’s attorney. This evidence was offered by the Government to establish an
element of mail fraud (Count Three). The attorney-client privilege protects
confidential communications between attorneys and clients, which are made for the
purpose of giving legal advice. See Upjohn Co. v. United States, 449 U.S. 383,
389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “The claim of privilege must be made
and sustained on a question-by-question or document-by-document basis; a blanket
claim of privilege is unacceptable. The scope of the privilege should be strictly
confined within the narrowest possible limits.” United States v. Christensen, 828
F.3d 763, 803 (9th Cir. 2015) (internal quotation omitted). Chong testified only
that: (1) he was an attorney, (2) he recognized both the letter and his signature on
his letterhead, and (3) he mailed the letter by U.S. Mail. None of these questions
touched upon a confidential communication between Attorney Chong and his
clients that was made for the purpose of obtaining legal advice.
AFFIRMED.
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