United States v. Aleksandar Djordjevic

FILED
NOT FOR PUBLICATION
NOV 25 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30212
Plaintiff - Appellee, D.C. No. 2:08-cr-00010-EFS-6
v.
MEMORANDUM*
ALEKSANDAR DJORDJEVIC,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Argued and Submitted November 17, 2015
Richland, Washington
Before: LEAVY, GRABER, and TALLMAN, Circuit Judges.
The district court did not err in denying the motion to suppress Djordjevic’s
inculpatory statements when his statements were made before presentment and
more than six hours after arrest because the delay was not unreasonable or
unnecessary. See Corley v. United States, 556 U.S. 303, 322 (2009) (stating
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
standard). Djordjevic was in state custody, following his arrest by state officers on
a federal warrant, when interviewed by federal agents. We hold that the delay was
reasonable.
The court will look to either the reasonableness of the delay or the public
policy concerns behind discouraging officers from delaying arraignments to extract
a confession. United States v. Van Poyck, 77 F.3d 285, 289 (9th Cir. 1996); see
also United States v. Garcia-Hernandez, 569 F.3d 1100, 1105-06 (9th Cir. 2009).
A statement is inadmissible under 18 U.S.C. § 3501(c) if state authorities collude
with federal agents to “detain someone in order to allow the federal agents to
interrogate him in violation of his right to prompt federal presentment.” United
States v. Alvarez-Sanchez, 511 U.S. 350, 359 (1994). The district court found no
such collusion here after conducting an evidentiary hearing. The district court’s
finding is not clearly erroneous.
Djordjevic was arrested by state authorities on Sunday evening, February 3,
2008. Federal agents interviewed Djordjevic on Monday, February 4, 2008, after
being notified by state authorities that Djordjevic was in their custody. Because of
the State’s hold, federal agents did not take physical custody of Djordjevic until
Tuesday, February 5, 2008, after which they promptly presented Djordjevic before
a United States magistrate judge. We agree with the district court’s conclusion that
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the delay in Djordjevic’s presentment was reasonable and necessary because it was
due to the hold the State had placed on Djordjevic that had to be resolved before he
could be transferred to federal custody.
The district court did not err in denying Djordjevic’s motion for judgment of
acquittal or new trial because there was sufficient direct and circumstantial
evidence to support the jury’s guilty verdict. See United States v. Nevils, 598 F.3d
1158, 1163-64 (9th Cir. 2010) (en banc) (stating standard); see also United States
v. King, 660 F.3d 1071, 1076 (9th Cir. 2011) (same). Deputy Adler’s report fully
complied with Federal Rule of Criminal Procedure 16(a)(1)(A). See United States
v. Hoffman, 794 F.2d 1429, 1432 n.4 (9th Cir. 1986) (holding that a verbatim
transcript is not requried). Coupled with his pretrial testimony explaining what
Djordjevic told the officers, the defense had adequate notice revealing the
substance of Djordjevic’s statements. The evidence at trial allowed the jury to
determine whether Djordjevic had the requisite knowledge and intent to obtain a
commercial drivers license (CDL) fraudulently under the scheme charged in the
indictment. We hold that there was sufficient direct and circumstantial evidence to
support the jury’s finding that Djordjevic knowingly and intentionally obtained a
CDL through a scheme and artifice to defraud the State of Washington in violation
of 18 U.S.C. § 1346.
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The honest services mail fraud statute, 18 U.S.C. § 1346, confined to bribery
and kickback schemes, is not unconstitutionally vague. Skilling v. United States,
561 U.S. 358, 404 (2010). “A criminal defendant who participated in a bribery or
kickback scheme, in short, cannot tenably complain about prosecution under §
1346 on vagueness grounds.” Id. at 413. Furthermore, we previously held that
Djordjevic’s very conduct is covered by the statute. United States v. Milovanovic,
678 F.3d 713, 725 (9th Cir. 2012) (en banc). That constitutes the law of the case.
AFFIRMED.
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