United States v. Irina Morgovsky ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10486
Plaintiff-Appellee, D.C. No. 3:16-cr-00411-VC-1
v.
MEMORANDUM*
NAUM MORGOVSKY,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10448
Plaintiff-Appellee, D.C. No. 3:16-cr-00411-VC-3
v.
IRINA MORGOVSKY,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Submitted September 16, 2020**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, TASHIMA, and BADE, Circuit Judges.
Naum and Irina Morgovsky appeal from their convictions and sentences,
following guilty pleas, for conspiracy to violate the International Traffic in Arms
Regulations (ITAR) in violation of the Arms Export Control Act (AECA), 22
U.S.C. §§ 2751–2799aa-2. Naum also appeals his convictions and sentences for
money laundering in violation of 18 U.S.C. § 1956(a)(1)(B) and (a)(2)(A). We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The Morgovskys argue that the district court committed a variety of
errors during each of their plea proceedings. Because the Morgovskys raised none
of these challenges in the district court, we review for plain error. United States v.
Pena, 314 F.3d 1152, 1155 (9th Cir. 2003). “Plain error is (1) error, (2) that is
plain, and (3) that affects substantial rights. If all three conditions are met, we may
then exercise our discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Yijun Zhou, 838 F.3d 1007, 1012 (9th Cir. 2016)
(quotation marks omitted).
Naum and Irina point out that the district court failed to recite the elements
of their offenses during both their plea colloquies. A district court must state the
elements of an offense during a plea colloquy, and the failure to do so is error
under well-settled Ninth Circuit precedent. United States v. Covian-Sandoval, 462
2
F.3d 1090, 1095 (9th Cir. 2006). However, neither Naum nor Irina proves that the
error affected their substantial rights, as the third step of the plain error standard
requires. United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). An error
affects substantial rights where there is “a reasonable probability that, but for the
error, [the defendant] would not have entered the plea.” Id. Here, both Naum and
Irina confirmed in writing and during their plea colloquies that they fully
understood the charges made against them. These facts, combined with the
Morgovskys’ representation by counsel in the district court, strongly support their
“full comprehension of the nature of the offense[s].” Covian-Sandoval, 462 F.3d
at 1095.
Next, Naum and Irina argue that the district court failed to determine a
sufficient factual basis for their guilty pleas. “[A] court need not rely on the plea
colloquy alone and may conclude that a factual basis exists from anything that
appears on the record.” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th
Cir. 2009) (internal quotation marks and citation omitted). The statements that the
district court relied on (particularly from the Morgovskys’ presentence reports
(PSRs) and their admissions during plea proceedings) establish a basis for each of
the facts the Morgovskys now dispute: specifically, that they lacked the requisite
license to export ITAR-controlled equipment to Russia, that they intentionally
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agreed to join the conspiracy, and that they knew their conspiracy was illegal.1
The Morgovskys also argue that the district court failed to ensure their pleas
were voluntary because Irina’s plea agreement was contingent on Naum’s guilty
plea. Apart from citing generic statements that a district court should closely
scrutinize “package plea deal” arrangements, see, e.g., United States v. Caro, 997
F.2d 657, 659 (9th Cir. 1993), the only specific argument they make on this issue is
that the district court failed to advise Irina that she could decline to enter a guilty
plea even after she signed the plea agreement. But the record flatly contradicts this
assertion: the court stated at her plea hearing, “You do have the right to continue
to plead not guilty. Do you understand that?” Irina responded, “Yes.”
Irina also argues that the district court failed to determine her competence
adequately once it learned that she was taking an antidepressant. But after learning
that Irina was “under the influence of some medication,” the district court satisfied
its obligations to determine “what type of drug [she] ha[d] taken” and “whether the
drug [was] affecting [her] mental state.” United States v. Carter, 795 F.3d 947,
954 (9th Cir. 2015).
1
The Morgovskys fault the district court for relying on “totally defective
PSRs, virtually identical for both Morgovskys.” They are correct that many of the
relevant portions of their PSRs are similar, but they cite no authority that it is
improper for two co-conspirators’ PSRs to closely mirror each other, and they fail
to show that the factual findings the district court adopted from the PSRs were
unreliable.
4
The court asked Irina whether she was “currently under the influence of any
drug, medication or alcoholic beverage that would hinder [her] ability to
understand the proceedings here today.” She responded, “No, I’m taking some
antidepressant, but they’re not affect [sic] my ability to understand any of the
proceedings.” Irina suggests that her “short and contradictory answers” were “red
flags” that the district court failed to investigate, but she fails to explain how her
answers were contradictory, or what about them should have raised the district
court’s suspicion.
Next, Naum and Irina argue that their pleas were “not knowing and
voluntary as a constitutional matter because the district court failed to advise
[them] of the law in relation to facts and demonstrate on the record that [they]
understood the complex charg[es] to which [they were] pleading.” We reject this
general argument for the same reasons we rejected the Morgovskys’ specific
challenges above: the record amply demonstrates that they understood the charges
to which they were pleading guilty, they were represented by counsel, and they
gave no indication that their decisions to plead guilty were anything but voluntary
and intelligent. Finally, the Morgovskys’ cumulative error arguments necessarily
fail because only one error occurred. United States v. Solorio, 669 F.3d 943, 956
(9th Cir. 2012).
5
2. The Morgovskys argue that their conspiracy convictions under ITAR
and the AECA should be vacated because Congress, when it enacted 22 U.S.C.
§ 2778, did not establish criminal conspiracy liability.2 Because Irina has generally
waived her appeal rights pursuant to her plea agreement, we do not entertain her
challenge. United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011).3
Moreover, because Naum did not raise this challenge in the district court as
Federal Rule of Criminal Procedure 12(b)(3) requires, and he has not shown good
cause, United States v. Guerrero, 921 F.3d 895, 897 (9th Cir. 2019) (per curiam),
cert. denied, 140 S. Ct. 1300 (2020), he has waived his challenge on appeal except
insofar as he “attack[s] the constitutionality of the law under which he is charged,”
United States v. Parker, 761 F.3d 986, 991 (9th Cir. 2014) (internal quotation
marks and citation omitted). However, we review de novo Naum’s constitutional
argument that “under the separation of powers, Congress had no power and thus
2
Notwithstanding the Morgovskys’ own inconsistent characterizations of
their challenge, it plainly consists of two distinct arguments: (1) that “Congress
did not delegate to the Executive Branch its legislative authority . . . to create a
separate crime of conspiracy,” and (2) that even if Congress purported to delegate
this authority, such a delegation violates the separation of powers.
3
Although “even a valid appellate waiver does not prevent courts from
reviewing an illegal sentence,” United States v. Pollard, 850 F.3d 1038, 1041 (9th
Cir. 2017), the rationale underlying this exception does not extend to challenging a
statute of conviction because nothing prevents a defendant from raising the latter
during pretrial proceedings. See, e.g., United States v. Johnson, 67 F.3d 200, 203
n.6 (9th Cir. 1995) (discussing “the possibility that a sentencing error could be
entirely unforeseeable and therefore not barred by the defendant’s appeal waiver”).
6
could not validly delegate to the Executive Branch the authority to create new
generic crimes, such as conspiracy, separate and distinct from those proscribed by
the statute enacted by Congress.”4 United States v. Tabacca, 924 F.2d 906, 912
(9th Cir. 1991); United States v. Gilbert, 813 F.2d 1523, 1526 (9th Cir. 1987).
In United States v. Gurrola-Garcia, we rejected the argument that an earlier,
similarly-worded version of the same AECA provision “constitute[d] an
unconstitutional congressional delegation of legislative power to the executive”
insofar as it “empower[ed] the President to criminalize ‘attempt’ conduct.” 547
F.2d 1075, 1078 (9th Cir. 1976). We reasoned, “It is well established that
Congress may constitutionally provide a criminal sanction for the violation of
regulations which it has empowered the President or an agency to promulgate.” Id.
at 1079 (collecting cases); see also United States v. Chi Tong Kuok, 671 F.3d 931,
934, 939 (9th Cir. 2012) (holding that Congress set forth an intelligible principle in
charging the President to designate, and regulate the export of, “defense articles
and defense services”). Naum argues that Gurrola-Garcia is distinguishable
because it addressed attempt liability, not conspiracy liability, but this difference is
4
Naum’s argument that Congress did not delegate the authority to
criminalize conspiracy (contrasted with his argument that Congress could not do
so) is not a constitutional challenge. See Dalton v. Specter, 511 U.S. 462, 472
(1994) (collecting cases and distinguishing “between claims of constitutional
violations and claims that an official has acted in excess of his statutory
authority”).
7
immaterial to our analysis. Thus, we affirm the Morgovskys’ conspiracy
convictions.
3. Naum argues that the district court violated his Sixth Amendment
right to counsel by denying his request for substitution of counsel before his
sentencing hearing. “We review a district court’s denial of a motion for
substitution of counsel for abuse of discretion.” United States v. Rivera-Corona,
618 F.3d 976, 978 (9th Cir. 2010) (citation omitted). “[W]e consider (1) the
timeliness of the substitution motion and the extent of resulting inconvenience or
delay; (2) the adequacy of the district court’s inquiry into the defendant’s
complaint; and (3) whether the conflict between the defendant and his attorney was
so great that it prevented an adequate defense.” Id. (citation omitted). Here, the
district court plainly did not abuse its discretion. After holding both open and ex
parte hearings, the district court found that Naum was attempting to delay the
proceedings and that his last-minute request and criticism of his counsel fit a
pattern of manipulative behavior the court had observed from Naum throughout the
proceedings. Given the last-minute timing of the substitution request, Naum’s lack
of a convincing reason for requesting the substitution, and the district court’s
findings that Naum had pressured his wife to fire her lawyers and had illicitly filed
documents in his lawyer’s name, we hold that the district court’s application of the
standard was not “illogical,” “implausible,” or “without support in the record.”
8
United States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018) (internal quotation
marks omitted).
4. Naum argues that the district court improperly conditioned its
acceptance of his guilty plea on his admission of forfeiture allegations. We review
unpreserved challenges to forfeiture proceedings for plain error, United States v.
Soto, 915 F.3d 675, 678 (9th Cir. 2019), and we find no plain error here. By
pressing Naum to indicate whether he understood the forfeiture allegations against
him, the district court merely followed Federal Rule of Criminal Procedure
11(b)(1)(J), which requires “the court [to] inform the defendant of, and determine
that the defendant understands, . . . any applicable forfeiture.” We also reject
Naum’s arguments that the district court failed to “determine what property is
subject to forfeiture” and to hold a forfeiture hearing. See Fed. R. Crim. P. 32.2.
The district court satisfied Rule 32.2’s first requirement when it adopted the PSR’s
recommendation on forfeiture, and it was not required to hold a hearing because
the parties never requested one. See id. (b)(1)(B) (requiring a hearing “on either
party’s request”).
5. Naum argues that the district court erred in imposing a $1 million fine
based on its finding, contrary to the PSR, that Naum had the ability to pay. In his
opening brief, Naum asserts both that he lacks the present ability to pay the fine
and that he lacks the future earning capacity to pay. The only argument Naum
9
preserved for appeal is that the district court erred by finding that Naum had the
ability to pay because he was hiding assets. He has waived the argument that the
district court erred on any other ground. “A district court’s finding of whether a
defendant is able to pay [a] fine is reviewed for clear error.” United States v.
Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009). Even assuming that the district
court erroneously determined Naum was hiding assets, Naum’s challenge still fails
because the district court clearly based its fine decision on two alternative,
independently sufficient grounds: after Naum’s counsel objected to the court’s
finding that Naum was hiding assets, the district court clarified that “even if he
lacks the ability to pay now, he’s . . . not likely to lack the ability to pay in the
future.” Because Naum has waived any argument that the district court erred on
the latter ground, we affirm the district court’s imposition of a fine.
AFFIRMED.5
5
Because we affirm the district court, we do not reach Naum’s request for
reassignment to a different district court judge on remand.
10