United States v. Karen Markosian

FILED
NOT FOR PUBLICATION
DEC 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50568
Plaintiff - Appellee, D.C. No. 8:09-cr-00248-DOC-6
v.
MEMORANDUM*
KAREN MARKOSIAN, AKA Garen,
AKA Kar,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50571
Plaintiff - Appellee, D.C. No. 8:09-cr-00248-DOC-3
v.
ANGUS BROWN, AKA Cide, AKA Cy,
AKA Homicide,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50573
Plaintiff - Appellee, D.C. No. 8:09-cr-00248-DOC-2
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
ARMAN SHAROPETROSIAN, AKA
Dzi, AKA Horse, AKA Arman Petosian,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50574
Plaintiff - Appellee, D.C. No. 8:09-cr-00248-DOC-10
v.
ARTUSH MARGARYAN, AKA Artush
Vaganovich Margaryan, AKA Arush V.
Margaryan, AKA Arush Vaganovic
Margaryan,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50092
Plaintiff - Appellee, D.C. No. 8:09-cr-00248-DOC-11
v.
HOVHANNES DILBOYAN, AKA
Andrankik Harutyunyan,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted July 6, 2015
Pasadena, California
Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
In these consolidated appeals, five defendants (Brown, Sharopetrosian,
Markosian, Margaryan, and Dilboyan) appeal various aspects of their convictions
and sentences. We affirm.
Dilboyan argues that his guilty plea should be vacated because it was based
on evidence seized during a pretextual traffic stop. However, by pleading guilty
without the benefit of a plea agreement, Dilboyan waived this claim. United States
v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005). Even if the claim weren’t
waived, it fails, as Dilboyan concedes that the officers had probable cause to stop
the car for a traffic violation. See United States v. Whren, 517 U.S. 806 (1996).
Margaryan claims that the district court violated his right to a speedy trial
under both the Speedy Trial Act and the Sixth Amendment. Margaryan waived his
Speedy Trial Act claim, as he failed to move for dismissal on Speedy Trial Act
grounds. See United States v. Lam, 251 F.3d 852, 854, 861 n.11 (9th Cir. 2001).
His Sixth Amendment claim fails because he has not shown specific prejudice,
which is required when, as here, the government acts with reasonable diligence.
See Doggett v. United States, 505 U.S. 647, 654 (1992).
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Nor did the district court err by failing to sever Margaryan’s trial. The
government introduced “substantially overlapping evidence” of all of the
codefendants’ involvement in a single bank fraud conspiracy scheme, which is a
particularly appropriate reason for joinder under Federal Rule of Criminal
Procedure 8(b). United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir.
1994). Margaryan did not show that the district court’s limiting instruction was
insufficient to cure any prejudice he may have suffered. See United States v.
Johnson, 297 F.3d 845, 855 (9th Cir. 2002).
The district court did not err in admitting evidence of Margaryan’s
uncharged conduct. Margaryan’s depositing of the $79,000 forged check and
placement of skimmers and micro-cameras on ATMs were acts that “comprised the
conspiracy” and “occurred within the temporal scope of the conspiracy,” and so are
considered “inextricably intertwined.” United States v. Montgomery, 384 F.3d
1050, 1062 (9th Cir. 2004). Under Federal Rule of Evidence 404(b), these acts
were admissible as probative of Margaryan’s intent to participate in the conspiracy.
See United States v. Ayers, 924 F.2d 1468, 1472–73 (9th Cir. 1991).
Brown, Sharopetrosian, Markosian, and Margaryan challenge the district
court’s calculation of intended loss. In a conspiracy case, the sentencing court
takes into account “all reasonably foreseeable acts and omissions of others in
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furtherance of the jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction” in determining its loss calculation,
U.S.S.G. § 1B1.3(a)(1)(B), which need only be “reasonable” and is “entitled to
appropriate deference,” id. § 2B1.1 cmt. n.3(C). Unlike the court in United States
v. Ladum, 141 F.3d 1328, 1345-47 (9th Cir. 1998), upon which the defendants rely,
the district court made specific factual findings that these four defendants were
aware of the overall scheme and that the full extent of the conspiracy’s losses was
reasonably foreseeable to them. The court’s findings were supported by record
evidence regarding the defendants’ involvement in the conspiracy. Brown
organized the conspiracy from prison, directing the activities of outside
participants such as his girlfriend Faye Bell and his key deputy, Kelly Benson.
Sharopetrosian was the other primary organizer, directing the activities of outside
participants such as his wife, Kristine Ogandzhanyan, and his business partner,
Markosian. Brown and Sharopetrosian, who were in prison together, spoke on
contraband cell phones in addition to in-person conversations. Bell and
Ogandzhanyan served as the primary link on the outside between Brown’s
associates and Sharopetrosian’s associates. The Brown crew took primary
responsibility for ordering and picking up legitimate checks that were fraudulently
ordered on the victims’ accounts. They would deliver the checks as well as
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documents containing legitimate signatures to Bell, who would transfer them to the
Sharopetrosian crew via Ogandzhanyan. The Sharopetrosian crew would then take
over, forging the checks and depositing them into the money laundering accounts.
Markosian managed the activities of other, lower-level conspiracy members,
including Margaryan. Margaryan was caught in possession of forged checks,
access materials for money laundering accounts, and stolen debit card numbers and
identifying information. Further, as to Sharopetrosian, the district court made
findings that he specifically intended to maximize the loss caused by his
coconspirators. See United States v. Blitz, 151 F.3d 1002, 1009–10 (9th Cir. 1998);
cf. United States v. Manatau, 647 F.3d 1048, 1050 (10th Cir. 2011).
Brown, Sharopetrosian, Markosian, and Margaryan all argue that the district
court erred by using the late-2009 version of the sentencing guidelines manual
rather than the earlier version, which defined “victim” only as someone who had
sustained actual loss. The relevant guidelines change raises ex post facto issues
because it (1) makes a substantive change rather than merely clarifying an existing
rule and (2) makes the defendants’ punishment more onerous that it would have
been under the earlier guidelines. United States v. Johns, 5 F.3d 1267, 1269, 1272
(9th Cir. 1993). However, the distinction between the manuals is irrelevant
because the court reasonably found that each of the defendants was involved in the
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conspiracy after mid-2009. Nor did the court err in its number-of-victims
calculations, as it reasonably found that the defendants all had knowledge of the
full scope of the conspiracy’s operations. See United States v. Treadwell, 593 F.3d
990, 1002 (9th Cir. 2010) (explaining that the court should “identify the loss that
fell within the scope of the defendant’s agreement with his co-conspirators and was
reasonably foreseeable to the defendant”).
Brown and Sharopetrosian both challenge the district court’s imposition of
the vulnerable victim enhancement. However, there was ample evidence in the
record to show that Brown intentionally targeted elderly victims, and that the
defendants knew or should have known that those victims were vulnerable to the
scheme because they would be less likely to use online banking or notice changes
made to their accounts. See United States v. Mendoza, 262 F.3d 957, 960–61 (9th
Cir. 2001); United States v. Luca, 183 F.3d 1019, 1025 (9th Cir. 1999).
Sharopetrosian conceded in his sentencing memorandum that the enhancement
should apply. His claim is thus waived, as he placed “evidence in the record that
[he] was aware of . . . [a] relinquished or abandoned right.” United States v. Perez,
116 F.3d 840, 845 (9th Cir. 1997) (en banc).
Brown and Markosian challenge the district court’s imposition of the
leadership enhancement under U.S.S.G. § 3B1.1(c). However, there was evidence
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in the record that would support the conclusion that they exercised the necessary
level of control. See id. § 3B1.1, cmt. n.4. The government introduced evidence,
via recorded telephone call, that Markosian sent Margaryan and Dilboyan to
deposit a fraudulent check, and that Markosian agreed to recruit someone else to
deposit checks after Margaryan and Dilboyan were arrested. In the same call,
Sharopetrosian asked Markosian for reassurance that Margaryan and Dilboyan
were “normal” participants, suggesting that Sharopetrosian was not familiar with
the different runners Markosian used. This is sufficient evidence to support the
district court’s conclusion that Markosian had independent authority to direct the
actions of Margaryan and Dilboyan, which is adequate foundation for the
enhancement. See United States v. Whitney, 673 F.3d 965, 975 & n.6 (9th Cir.
2012).
The evidence was even stronger as to Brown. In his plea colloquy, the
factual basis offered by the government, which Brown accepted, included the
following evidence that demonstrated control over other coconspirators: while
Brown was in prison, the conspiracy was a multi-level operation that used
“runners” to cash checks and deliver the proceeds to other, higher-level members
of the conspiracy; after contacting Chase Bank to determine the value of one
victim’s account, Brown directed co-conspirator Kelly Benson to look up the
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victim’s address so that they could order checks on the victim’s account, and on
another occasion, Brown gave Benson another victim’s Social Security number
and “directed him to obtain their date of birth” to access the account. Benson
testified that Cox and Brown had recruited him and instructed him regarding
management of outside co-conspirators, including the runners. These facts
establish that the district court’s conclusion that Brown held a leadership position
in the conspiracy was not clearly erroneous. See United States v. Rivera, 527 F.3d
891, 908–09 (9th Cir. 2008).
Markosian and Margaryan challenge the district court’s decision to apply the
sophisticated means enhancement under U.S.S.G. § 2B1.1. The district court
found that both defendants had full knowledge of conspiracy operations including
the use of money laundering accounts used to conceal the identities of the
conspirators; the use of prepaid phones registered in false names; the use of
skimmers and micro-cameras to collect victims’ bank account information from
ATMs; and the use of strategies to bypass bank security protocols and
manipulation of account information to avoid contact between the bank and the
account holder. These activities are clear examples of “especially complex or
especially intricate offense conduct pertaining to the execution or concealment of
an offense.” U.S.S.G. § 2B1.1, cmt. n.8(B).
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Markosian also argues that the court erred by refusing to grant him a
sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 because
he submitted a letter to the court at sentencing in which he accepted responsibility
for his crimes. However, the court acted within its discretion in denying the
reduction, given that Markosian denied facts related to intent—an essential element
of the fraud crime—and did not manifest any evidence of contrition until after he
was convicted. See United States v. Fleming, 215 F.3d 930, 940 (9th Cir. 2000).
Margaryan argues that the court erred by failing to grant him a minor role
reduction under U.S.S.G. § 3B1.2. The court characterized Margaryan as having a
“substantial part” in the conspiracy, and rejected as “ridiculous” his claim that he
had no knowledge of the content of the thumb drive containing victims’ identifying
information, thereby communicating its finding that Margaryan had a substantial
role in the conspiracy that was incompatible with a minor role adjustment. See
United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990); cf. United States v.
Gunning, 339 F.3d 948, 949 (9th Cir. 2003). The court did not clearly err in
determining that Margaryan was not a minor participant in the conspiracy. See
United States v. Rodriguez-Castro, 641 F.3d 1189, 1192-93 (9th Cir. 2011).
Finally, we conclude that Brown’s sentence is substantively reasonable. A
within-guidelines sentence will be reversed only if the court’s decision was
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“‘illogical, implausible, or without support in inferences that may be drawn from
the facts in the record.’” United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir.
2010) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc)). Brown received a below-guidelines sentence despite the court’s findings
that he was one of the leaders of a high-level, complex conspiracy that defrauded
banks and account holders out of millions of dollars.
AFFIRMED.
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