United States v. Roman Seleznev ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30085
Plaintiff-Appellee, D.C. No.
2:11-cr-00070-RAJ-1
v.
ROMAN SELEZNEV, AKA bandysli64, MEMORANDUM*
AKA Bulba, AKA Roman Ivanov, AKA
nCuX, AKA Ruben Samvelich, AKA
shmak, AKA smaus, AKA Track2, AKA
Zagreb,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted March 6, 2019
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,** District Judge.
Defendant Roman Seleznev appeals his conviction and sentence on 38
counts under 18 U.S.C. § 1343 (Wire Fraud), 18 U.S.C. § 1030(a)(5), (c)(4)(B)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
(Intentional Damage to a Computer); 18 U.S.C. § 1030 (Obtaining Information
from a Protected Computer), 18 U.S.C. § 1029(a)(3) (Access Device Fraud), and
18 U.S.C. § 1028A(a)(1) (Aggravated Identity Theft). We have jurisdiction under
28 U.S.C. § 1291 and we affirm.
1. We review the denial of a motion to dismiss an indictment based on
outrageous government conduct de novo, and its underlying factual findings for
clear error. United States v. Struckman, 611 F.3d 560, 573 (9th Cir. 2010).
Generally, how a defendant is brought to trial does not affect the government’s
ability to try him. United States v. Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir.
1995). We recognized two exceptions to this rule in Struckman. 611 F.3d at 571.
Neither of these recognized exceptions applies here. Because there is no
extradition treaty between the United States and the Maldives, U.S. agents did not
violate an extradition treaty. And because, as the district court reasonably found,
Seleznev’s apprehension occurred with the approval and cooperation of Maldivian
authorities, the U.S. agents’ conduct was not of the most “shocking and outrageous
kind” as to warrant dismissal of the indictment. For the same reasons, the district
court did not abuse its discretion in refusing to dismiss the indictment under its
supervisory powers. See id. at 574.
2. We review denial of a motion to suppress de novo and its underlying factual
findings for clear error. United States v. Fernandez, 388 F.3d 1199, 1234 (9th Cir.
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2004). “Information offered to support a search warrant application becomes stale
when enough time has elapsed such that there is no longer ‘sufficient basis to
believe . . . that the items to be seized are still on the premises.’” United States v.
Grant, 682 F.3d 827, 835 (9th Cir. 2012) (quoting United States v. Lacy, 119 F.3d
742, 746 (9th Cir. 1997)). “[A] probable cause determination can be supported
entirely by circumstantial evidence.” United States v. Diaz, 491 F.3d 1074, 1078
(9th Cir. 2007).
Here, the affidavit gave a sufficient basis to believe that evidence of
Seleznev’s crimes would still be on his computer. Among other evidence, the
affidavit noted e-currency accounts connecting Seleznev to 2pac.cc, a website that
had been active in 2014. That information was not stale in July 2014. On this
record the district court did not err in denying the motion to suppress.
3. We review de novo whether a waiver was made “knowingly and
voluntarily.” United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016). In the
context of reviewing a waiver, the related factual findings are reviewed for clear
error. Id. Under Federal Rule of Evidence 410, “a statement made during plea
discussions” is “not admissible against the defendant who . . . participated in the
plea discussions.” A defendant can, however, waive this privilege, so long as the
waiver is knowing and voluntary. United States v. Mezzanatto, 513 U.S. 196, 210
(1995).
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We conclude that the district court did not clearly err in determining that
Seleznev partially waived his Rule 410 privilege. And we further conclude that
Seleznev did not demonstrate any prejudice from the district court’s instruction
that his lawyers could not present evidence contrary to his statements without a
good faith basis to do so.
4. We review for abuse of discretion the district court’s ruling on the relevance
of classified documents. United States v. Miller, 874 F.2d 1255, 1275 (9th Cir.
1989). We review de novo the district court’s interpretation of the Classified
Information Procedures Act (“CIPA”), 18 U.S.C. App. III. Id. We have
previously affirmed in camera and ex parte review of CIPA information. See
United States v. Sedaghaty, 728 F.3d 885, 908 (9th Cir. 2013). Here, the district
court did not err in its review of the government’s CIPA application.
5. The contentions about ineffective assistance of counsel need not and will not
be reviewed on this appeal because, “as a general rule, we do not review
challenges to the effectiveness of defense counsel on direct appeal.” United States
v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005), overruled on other grounds by
United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.2007) (en banc). That
general rule squarely applies here, because the record is not so fully developed as
to make it proper for immediate review. We deny Seleznev’s ineffective assistance
of counsel claims without prejudice to his ability to raise these claims in a later
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proceeding under 28 U.S.C. § 2255. See United States v. McGowan, 668 F.3d 601,
605–06 (9th Cir. 2012).
6. We review sentences for abuse of discretion. United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc). “A substantively reasonable sentence is
one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s
sentencing goals.” United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009)
(citing 18 U.S.C. § 2553(a)). We “afford significant deference to a district court’s
sentence under 18 U.S.C. § 3553 and reverse only if the court applied an incorrect
legal rule or if the sentence was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.” United States v.
Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir. 2017) (en banc) (internal quotation
omitted).
The district court did not abuse its discretion in sentencing Seleznev to 27
years in prison. Seleznev’s long sentence is not substantively unreasonable given
the harm that he undoubtedly caused to many businesses, the large sums Seleznev
gained from his scheme, his general lack of remorse, the need to deter other
offenders who may consider similar schemes, and the sentences received by
similarly situated defendants.
7. A district court must explain a sentence sufficiently to permit meaningful
appellate review. Carty, 520 F.3d at 992. We conclude that the district court gave
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an adequate explanation for its sentence. The record shows that the district court
was aware of Seleznev’s medical condition but rejected it as a basis to lower his
sentence.
AFFIRMED.
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