United States v. Boruch

12-3784-cr
United States v. Boruch
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 31st day of December, two thousand thirteen.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 12-3784-cr
ILYA BORUCH,
Defendant-Appellant.
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APPEARING FOR APPELLANT: MICHAEL P. JOSEPH (Ronald E. Kliegerman,
on the brief) Kliegerman & Joseph, LLP, New
York, New York.
APPEARING FOR APPELLEE: LEE RENZIN (Thomas G.A. Brown, Justin S.
Weddle, on the brief), Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, New York.
Appeal from a judgment of the United States District Court for the Southern District
of New York (George B. Daniels, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 7, 2012, is AFFIRMED.
Defendant Ilya Boruch stands convicted following a jury trial of conspiracy to
defraud the United States. See 18 U.S.C. § 371. On appeal, Boruch contests the
sufficiency of the evidence supporting his conviction and maintains that the government
failed to establish that venue in the Southern District of New York was proper. We
assume the parties’ familiarity with the facts and the record of prior proceedings, which we
reference only as necessary to explain our decision to affirm.
1. Sufficiency of the Evidence
We review Boruch’s sufficiency challenge de novo and will affirm his conviction if
“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 (1979) (emphasis in original); accord United States
v. Jones, 531 F.3d 163, 168 (2d Cir. 2008). To prove a § 371 conspiracy, the government
was required to show that the defendant (1) entered into an agreement with at least one
other person (2) to obstruct a lawful government function (3) by deceitful or dishonest
means, and (4) at least one conspirator committed an overt act in furtherance of the
agreement. See United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009).
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Here, Boruch was alleged to have entered into an agreement to obstruct the function
of the Internal Revenue Service (“IRS”) by conducting cash transactions in excess of
$10,000 without filing currency transaction reports (“CTRs”) with the IRS as required by
law. See 18 U.S.C. § 1956(a)(1)(B)(ii). To sustain a conspiracy conviction, “the
government need not present evidence of an explicit agreement; proof of a tacit
understanding will suffice.” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552
F.3d 93, 113 (2d Cir. 2008) (internal quotation marks and alterations omitted). Moreover,
because “a conspiracy by its very nature is a secretive operation,” United States v. Santos,
541 F.3d 63, 70 (2d Cir. 2008) (internal quotation marks omitted), a defendant’s agreement
to join in such a scheme can reasonably be inferred from circumstantial evidence, see In re
Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d at 113.
Boruch maintains that the evidence supporting his conviction is insufficient as a
matter of law because his two alleged coconspirators testified that they were unfamiliar
with CTRs and sought to conceal from Boruch the illegal source of the cash that, for a fee,
Boruch converted into WebMoney, a form of digital currency ideal for maintaining user
anonymity. Boruch’s knowledge of the alleged source of the cash at issue was not a
required element of a § 371 conspiracy to avoid CTR reporting and, thus, is irrelevant to
our sufficiency review. See United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.
2005). 1 More to the point, circumstantial evidence was sufficient to prove a tacit
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No different conclusion is warranted because Boruch was acquitted of conspiracy to
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agreement among the conspirators to conduct cash transactions in excess of $10,000
without filing the reports required by law.
First, even if the two testifying coconspirators were not familiar with the term
“CTR,” all three conspirators were aware of the need to report cash transactions over
$10,000 to the IRS. Boruch, as the Anti-Money Laundering Policy Compliance Officer of
his WebMoney business, was undoubtedly aware of the reporting requirement; indeed, he
stated to a cooperating witness that the company was not subject to that requirement
because it did not regularly process transactions in excess of $10,000. Meanwhile,
coconspirator Rakushchynets testified that he knew from his previous operation of a
Western Union business that “deposits over 10,000[ must be] report[ed] to the IRS.” Trial
Tr. 211:24–25, App. 86. And coconspirator Biltse testified that for transactions “[o]ver
10,000[,] information goes to [the] IRS.” Id. 523:21–21, App. 122.
Second, the jury was entitled to consider the clandestine nature of Boruch’s
relationship with Rakushchynets as circumstantial evidence of these conspirators’ criminal
agreement to avoid required reporting. See United States v. Zambrano, 776 F.2d 1091,
1096 (2d Cir. 1985) (observing that defendant “conducted business at midnight in parking
lots” and engaged in other secretive behavior in rejecting sufficiency challenge to
conspiracy conviction). For instance, the two men never met in Boruch’s office. Instead,
commit money laundering. See United States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994)
(“The review of the legal sufficiency of the evidence with respect to one count should be
independent of the jury’s determination that the evidence on another count was insufficient
to meet the government’s burden of persuasion.”).
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Rakushchynets provided Boruch with large boxes of cash, frequently containing tens of
thousands of dollars, most often in cars parked on various streets in Queens and Brooklyn.
Further, Boruch never asked Rakushchynets his last name or for identification, nor did
Boruch ever provide a receipt for their transactions. Moreover, in online exchanges,
Boruch specifically requested that Rakushchynets wire him $9,800—conspicuously just
below the $10,000 CTR threshold—which prompted Rakushchynets to express hesitation
at using a bank account, a concern Boruch understood. Even if a transferring institution
would not itself be required to report a $9,800 transaction, a jury could reasonably infer
from Boruch’s request and Rakushchynets’s response that the two men shared a common
aim to avoid the reporting requirements that applied to their transfer of hundreds of
thousands of dollars.
Third, and as the district court noted in denying Boruch’s Rule 29 motion, “most
convincingly, [Boruch] did not file a single CTR” in connection with the hundreds of
thousands of dollars in cash that he received or from the numerous WebMoney transactions
he performed for Rakushchynets and Biltse. See United States v. Boruch, No. S1 08 Cr.
820 (GBD), 2011 WL 5039778, at *4 (S.D.N.Y. Oct. 21, 2011).
To be sure, Boruch was free to argue to the jury that the lack of direct discussion
among the conspirators should leave it with a reasonable doubt as to his mens rea.
Nevertheless, on the totality of the circumstances, we cannot conclude that no reasonable
jury could have found him guilty as a knowing and intentional participant in the charged
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conspiracy to defraud. We therefore reject Boruch’s challenge to the sufficiency of the
evidence supporting his conviction.
2. Venue
Boruch’s venue challenge to his prosecution in the Southern District of New York
merits little discussion. Even if his participation in the conspiracy occurred only in
Brooklyn and Queens, a jury could conclude by the lesser preponderance standard
applicable to venue, see United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012), that his
coconspirators’ overt acts in Manhattan procuring the money to be transferred were
reasonably foreseeable to Boruch, see United States v. Tzolov, 642 F.3d 314, 319–20 (2d
Cir. 2011) (stating that venue may be grounded in any act performed by any conspirator for
purpose of accomplishing object of conspiracy). Even if the theft of the money from
ATMs in Manhattan was a distinct conspiracy, its transportation from that borough to
Brooklyn and Queens for transfer out of the United States was a necessary step in the
challenged conspiracy sufficient to confer venue in the Southern District. See United
States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987) (recognizing flight with
contraband “over the Narrows, a body of water that lies within the joint jurisdiction of the
Southern and Eastern Districts of New York,” sufficient to confer venue in Southern
District).
Moreover, the law does not require proof that Boruch had actual knowledge of overt
acts in Manhattan to support venue in the Southern District. The proximity of Manhattan
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to Brooklyn and Queens and the conspirators’ transfer of hundreds of thousands of dollars
in cash admitted a preponderance finding that Boruch could reasonably have foreseen that
his coconspirators transported at least some of the money at issue to Brooklyn and Queens
from Manhattan. See United States v. Davis, 689 F.3d at 188–89 (noting proximity of
Long Island robbery target to Southern District of New York, combined with
coconspirators’ prior robberies of drug dealer in the Bronx, to support venue in Southern
District based upon foreseeable effect on commerce in that district).
Accordingly, Boruch’s venue challenge fails on the merits.
We have considered defendant’s remaining arguments and conclude that they too
are without merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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