United States v. Andranik Petrosian

FILED
NOT FOR PUBLICATION JUL 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50636
Plaintiff - Appellee, D.C. No. 2:07-cr-00708-SVW-1
v.
MEMORANDUM*
ANDRANIK PETROSIAN, AKA Seal A,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted July 12, 2011**
Pasadena, California
Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.
Andranik Petrosian appeals his conviction and sentence after a jury found
him guilty of providing false statements to a government agency, in violation of 18
U.S.C. § 1001, and conspiring to defraud the United States, in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 371. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, and we affirm.
The district court properly admitted the statements Petrosian made during a
proffer session. The district court’s finding that Petrosian was not completely
truthful was not clearly erroneous. See United States v. Chiu, 109 F.3d 624, 625
(9th Cir. 1997). At the proffer meeting, Petrosian stated the advertisement for Dr.
Winkler’s office was legitimate and that Alex Ayriyan visited him for legitimate
purposes. Dr. Winkler, however, testified to writing large checks for
advertisements after being threatened by Ayriyan. She further testified that the
advertisements ran for several months after her clinic’s closing.
Petrosian’s argument that the government acted in bad faith by providing
him with an Armenian translator instead of a Russian one is unavailing. Assuming
the government was required to act in good faith and provide Petrosian with a
translator, Petrosian presented no evidence of bad faith. He neither asked for a
different translator nor suggested that the translator provided was inadequate. In
sum, the government was allowed to introduce his proffer statements under the
agreement due to Petrosian’s lack of candor.
Petrosian next argues that the district court erred by not replacing the word
“witnesses” with their actual names in the jury instructions. The district court did
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not plainly err. See United States v. Benny, 786 F.2d 1410, 1416 (9th Cir. 1986)
(review is for plain error if defendant failed to object to the instruction at trial).
The precise phrasing of an instruction is within the district court’s discretion and
the instruction provided adequate guidance to the jury. See United States v.
Redlightning, 624 F.3d 1090, 1122 (9th Cir. 2010); United States v. Escobar de
Bright, 742 F.2d 1196, 1198 n.5 (9th Cir. 1984). Petrosian also was not prejudiced
when the judge misread one word when giving the instruction. See United States v.
Romero-Avila, 210 F.3d 1017, 1022 (9th Cir. 2000) (plain error review requires
defendant to show prejudice). The jury was given a printed copy of the correct
instructions.
Sufficient evidence supports the jury’s verdict. Petrosian’s own proffer
statements provided ample details about his scheme to convert checks into cash to
assist his clients in defrauding the government of tax revenues. The government
also presented several of Petrosian’s clients who testified about the details of the
scheme. Petrosian’s argument that these witnesses were unreliable fails, as we
may not weigh the credibility of witnesses. See United States v. Nevils, 598 F.3d
1158, 1164 (9th Cir. 2010) (en banc). The jury’s failure to convict him of a
separate count of obstructing an investigation does not call into doubt his
conviction on the conspiracy count. United States v. Choy, 309 F.3d 602 (9th Cir.
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2002), is inapplicable because there was no legal error regarding the obstruction
count, nor was obstruction the substantive offense underlying the conspiracy
conviction.
There also was sufficient evidence to convict Petrosian of making a false
statement. He told a special agent in his May 10, 2006 interview that he had never
negotiated checks for cash. The trial evidence, including the testimony of his
clients and his own proffer statements, indicated otherwise.
We do not reach Petrosian’s ineffective assistance of counsel claim on direct
appeal because it requires development of facts outside the record. See United
States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). The record does not
indicate why trial counsel decided to forego the filing of a motion for a mistrial.
Petrosian challenges his sentence both for procedural error and substantive
unreasonableness.
First, the district court did not clearly err in finding that Petrosian played an
aggravating role in the scheme. See U.S. Sentencing Guidelines Manual
§ 3B1.1(a); United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008). Petrosian
directed the medical businesses to write out checks to his various entities,
negotiated the checks for cash, maintained several shell advertising businesses,
laundered large amounts of cash from Armenia, and falsified invoices. The scope
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of the illegal activity was wide, spanning the globe and involving millions of
dollars. His participation was central. See U.S. Sentencing Guidelines Manual
§ 3B1.1 cmt. n.4; United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007).
The district court also did not clearly err in finding Petrosian used sophisticated
means in aiding tax fraud. See U.S. Sentencing Guidelines Manual § 2T1.4(b)(2).
Petrosian’s scheme was “sufficiently more complex than routine tax evasion.”
United States v. Aragbaye, 234 F.3d 1101, 1108 (9th Cir. 2000) (quotation marks
omitted). He used fictitious entities and offshore financial accounts that allowed
his clients to hide assets. See U.S. Sentencing Guidelines Manual § 2T1.4(b)(2)
cmt. n.3.
Next, Petrosian challenges the restitution award. This argument was not
“coherently developed in the briefs” and is deemed abandoned. See United States
v. Velasquez-Bosque, 601 F.3d 955, 963 n.4 (9th Cir. 2010).
Lastly, Petrosian’s below-Guidelines sentence was not substantively
unreasonable. Petrosian argues the district court should have given a particular
mitigating factor more weight, but this is an attempt to reargue his leniency plea
from district court. See United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir.
2010). Given the nature and scope of the scheme, that Petrosian was at the center
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of it, and the resulting large amounts of loss to the IRS, Petrosian’s sentence,
significantly below the Guidelines range, was reasonable.
AFFIRMED.
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