US v. Georgiadi
Filing
OPINION issued by David J. Barron, Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Bruce M. Selya, Appellate Judge. Published. *Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation [14-1993, 15-2194]
Case: 14-1993
Document: 00116983483
Page: 1
Date Filed: 04/08/2016
Entry ID: 5990733
United States Court of Appeals
For the First Circuit
Nos. 14-1993
15-2194
UNITED STATES OF AMERICA,
Appellee,
v.
EVRIPIDES GEORGIADIS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter,* Associate Justice,
And Selya, Circuit Judge.
Andrew Levchuk, with whom Bulkley, Richardson & Gelinas was
on brief, for appellant.
Alex J. Grant, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
April 8, 2016
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Case: 14-1993
Document: 00116983483
Page: 2
BARRON, Circuit Judge.
Date Filed: 04/08/2016
Entry ID: 5990733
This case concerns a defendant's
appeal of his convictions and sentence for participating in a
complex, multi-million dollar investment fraud.
Finding no error,
we affirm in all respects.
I.
The appellant is Evripides Georgiadis, a Greek national.
On June 16, 2011, he was named in an indictment by a federal grand
jury in Massachusetts.
The indictment charged Georgiadis and three others -John Condo, Michael Zanetti, and Frank Barecich -- with creating
a fictional private equity fund, known variously as "BBDA Global
Investment Fund" or "DAC Global," and making false promises about
that fund to defraud unwitting developers into making deposits
totaling nearly $8 million into bank accounts controlled by the
defendants from February 2008 through August 2010.
The indictment
set forth fourteen counts of wire fraud in violation of 18 U.S.C.
§ 1343 and one count of conspiracy to commit wire fraud in
violation of 18 U.S.C. § 371.
A superseding indictment, dated
September 22, 2011, added a sixteenth count for conspiracy to
commit money laundering.1
1
In the superseding indictment, this sixteenth count was
entitled simply, "18 U.S.C. § 1956(h) - Conspiracy To Commit Money
Laundering."
The substantive allegations of the superseding
indictment then made clear that the defendants were charged with
conspiring both to launder money, in violation of 18 U.S.C. §
1956(a)(1)(B)(i), and to engage in monetary transactions in
- 2 -
Case: 14-1993
Document: 00116983483
Page: 3
Date Filed: 04/08/2016
Entry ID: 5990733
The following May, Croatian law enforcement authorities
arrested Georgiadis at a border crossing in Croatia.
In June of
that year, the United States sought his extradition for trial on
the charges set forth in the superseding indictment, and in
December of that year Croatia's Ministry of Justice authorized his
extradition.
Prior to trial, Georgiadis moved for dismissal of the
conspiracy to commit money laundering count on the ground that his
extradition did not authorize his trial on that count.
The
District Court denied the motion.
Over the course of March and April of 2014, Georgiadis's
three co-defendants entered guilty pleas.
Georgiadis did not.
His trial began on April 22, 2014.
At the close of the government's case, three of the
wire fraud counts were dismissed on the government's motion.
As
a result, only thirteen total counts -- including the conspiracy
to commit money laundering count -- went to the jury.
criminally derived property of a value greater than $10,000 that
is derived from specified unlawful activity, in violation of 18
U.S.C. § 1957. 18 U.S.C. § 1956(h) sets out the penalty for a
conspiracy to commit "any offense defined in this section or
section 1957."
Because nothing in our opinion depends on this
more detailed description of Count 16, we will refer to this count
as being for "conspiracy to commit money laundering."
- 3 -
Case: 14-1993
Document: 00116983483
Page: 4
Date Filed: 04/08/2016
Entry ID: 5990733
On May 14, 2014, the jury returned guilty verdicts on
all thirteen counts.
The District Court then sentenced Georgiadis
to 102 months of imprisonment.
Georgiadis raises a number of challenges here.2 Some
relate only to his conviction for conspiracy to commit money
laundering.
Others relate to each of his convictions.
challenges his sentence.
He also
We consider his arguments in this order,
and we reject each of them.
II.
Georgiadis
makes
two
separate
challenges
to
his
conviction on Count 16, which charged him with conspiracy to commit
money laundering.3
The first challenge concerns his extradition.
The second challenge concerns venue.
2
Technically, Georgiadis appealed twice: once from the
District Court's entry of judgment on September 17, 2014, and once
from the District Court's entry of an amended judgment on September
18, 2015. The amended judgment differed from the original only in
specifying that Georgiadis and his co-defendants were to be jointly
and severally liable for the restitution order that both judgments
imposed.
We consolidated the two appeals, and the parties
stipulated that only one round of briefing and argument was
necessary. We thus consider the two appeals as one.
3
This count was listed as Count 16 in the superseding
indictment, but it is listed as Count 13 in the redacted indictment
that was produced after the District Court granted the government's
motion to dismiss three counts from the superseding indictment at
the close of the government's case. For simplicity, we will refer
to this count as Count 16 throughout.
- 4 -
Case: 14-1993
Document: 00116983483
Page: 5
Date Filed: 04/08/2016
Entry ID: 5990733
A.
Georgiadis's extradition-based challenge implicates the
"principle of specialty," or, as it is also known, the "doctrine
of specialty."
United States v. Tse, 135 F.3d 200, 204 (1st Cir.
1998); United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir.
1995).
That doctrine "generally requires that an extradited
defendant be tried for the crimes on which extradition has been
granted, and none other."
Saccoccia, 58 F.3d at 766.4
"Because
the doctrine of specialty is concerned with comity rather than the
rights of the defendant, . . . [it] exists only to the extent that
the surrendering country wishes."
Tse, 135 F.3d at 205.
For that
reason, "[i]n general, we do not believe that there can be a
violation of the principle of specialty where the requesting nation
prosecutes the returned fugitive for the exact crimes on which the
surrendering nation granted extradition."
Saccoccia, 58 F.3d at
768.
Here, the decision of the Croatian Ministry of Justice
(the "Decision") clearly authorized Georgiadis's extradition on
all counts charged in the indictment, including Count 16.
No. 157, Ex. 1, 1].
[Dkt.
Indeed, the Decision specifically states that
4
We assume without deciding that Georgiadis has standing to
bring his extradition challenge. See Saccoccia, 58 F.3d at 767
n.6 (1st Cir. 1995) (noting that "[t]here is some dispute whether
alleged violations of the principle of specialty can be raised by
a criminal defendant").
- 5 -
Case: 14-1993
Document: 00116983483
Page: 6
Date Filed: 04/08/2016
Entry ID: 5990733
Georgiadis "can be extradited . . . based on the probable cause
that he has committed . . . one criminal act of conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956 (h)."
Nevertheless, Georgiadis contends that Croatia did not
actually intend to extradite Georgiadis on Count 16.
To support
this surprising contention, he points to the statement in the
Decision
that
expressly
purports
to
extradite
Georgiadis
"[p]ursuant to the provisions of" a 1902 treaty between the United
States and what was then Servia ("1902 Treaty").5
Georgiadis
argues that the Decision nowhere states that conspiracy to commit
money laundering is an offense covered by that 1902 Treaty.
And
Georgiadis further contends that the 1902 Treaty does not, in fact,
cover that offense.
Georgiadis also appears to argue that the
Decision misidentified Count 16 as a reference to a "computer
fraud" crime.
Thus, Georgiadis concludes, the Decision is best
read to authorize Georgiadis's extradition for only those crimes
that are covered by the 1902 Treaty or, "[a]t best," to "reflect[]
confusion" about the substance of Count 16.
But
Georgiadis's
contention
that
Croatia
did
not
actually authorize his extradition for Count 16 is not one that
Croatia itself advances.
Nor is it one that can be reconciled
5
The Decision actually refers to the treaty as being from
1901, because that is when the treaty was signed. It was then
ratified by both countries in 1902.
- 6 -
Case: 14-1993
Document: 00116983483
Page: 7
Date Filed: 04/08/2016
Entry ID: 5990733
with the plain language of the Decision that Croatia issued to
authorize
Georgiadis's
extradition.
The
references
in
the
translated Decision to "computer fraud" seem clearly to track the
wire fraud counts against Georgiadis, and the "justification"
section of the Decision separately refers to "money laundering" on
multiple occasions.
Thus, the Decision does not reveal the
confusion that Georgiadis claims it reflects, and it simply cannot
be read to limit Georgiadis's extradition such that it does not
cover Count 16.
Georgiadis does also appear to argue that even if Croatia
intended to extradite him on Count 16, the 1902 Treaty barred
Croatia from doing so because the treaty does not cover the crime
of conspiracy to commit money laundering.
He relies on United
States v. Rauscher, 119 U.S. 407 (1886), which states at one point
that a defendant extradited pursuant to a treaty can "only be tried
for one of the offenses described in that treaty."
Id. at 430.
But we have previously made clear that Rauscher applies
to "situations where an American court tries the fugitive for a
crime other than the one for which extradition was granted." Autry
v. Wiley, 440 F.2d 799, 801 (1st Cir. 1971); see Rauscher, 119
U.S. at 424 (explaining that an extradited defendant has a right
to "be tried only for the offense with which he is charged in the
extradition proceedings, and for which he was delivered up"). And,
as we have explained, Croatia made clear in its Decision that it
- 7 -
Case: 14-1993
Document: 00116983483
Page: 8
Date Filed: 04/08/2016
Entry ID: 5990733
extradited Georgiadis for trial on the conspiracy to commit money
laundering count for which he was tried.
To
independently
the
extent
determine
Georgiadis
that
Croatia
argues
lacked
the
that
we
authority
may
to
effect the extradition that Croatia plainly authorized in its
Decision "[p]ursuant to the provisions of the [1902 Treaty]," we
rejected an equivalent argument in Autry.
In doing so, we relied
on the Supreme Court's decision in Ker v. Illinois, 119 U.S. 436
(1886).
We explained in Autry that the Court in Ker held that,
subject to limited exceptions not applicable here, "neither the
method by which an accused is brought before a criminal court, nor
the legality of his forcible seizure or arrest . . . nor his
subsequent forcible and illegal transportation and confinement are
material to the question of the jurisdiction of a criminal court
before whom he is present."
Autry, 440 F.2d at 801.
Thus, this
aspect of Georgiadis's extradition-based challenge also cannot
succeed. Id. (explaining that the defendant could not challenge
his conviction on the ground that the treaty did not authorize
Canada's extradition of him because "[i]f he falls within the
treaty's scope, his apprehension and return were entirely proper.
If he falls without the treaty's scope, the Ker rule makes his
jurisdictional claim groundless.").6
6
Although Autry is dispositive, we also note that the
Restatement (Third) of Foreign Relations § 476 (1987), on which
- 8 -
Case: 14-1993
Document: 00116983483
Page: 9
Date Filed: 04/08/2016
Entry ID: 5990733
B.
We now turn to Georgiadis's other ground for challenging
his conviction on Count 16 -- that he was denied his right under
the Constitution and the Federal Rules of Criminal Procedure to be
tried in a venue "wherein the crime [was] committed."
U.S. Const.
amend. VI; see U.S. Const. art. III § 2, cl. 3; Fed. R. Crim. P.
18.
In pressing this contention, Georgiadis agrees, as he must,
that if he or any of his co-conspirators took an overt act in
furtherance
of
the
conspiracy
to
commit
money
laundering
in
Massachusetts, then venue in the District of Massachusetts was
proper.
[Blue
Br.
27-28];
See
18
U.S.C.
§
1956(i)(2)
("A
prosecution for an attempt or conspiracy offense under this section
or section 1957 may be brought . . . in any [] district where an
act in furtherance of the attempt or conspiracy took place.");
Whitfield v. United States, 543 U.S. 209, 218 (2005) (explaining
that § 1956(i)(2) functions as a confirmation of the "longstanding
Georgiadis relies, does not support his assertion that "[i]t is a
fundamental requirement that the crime for which extradition is
sought also be one provided for by the applicable treaty." Nor
does the Second Circuit's decision in Sacirbey v. Guccione, 589
F.3d 52 (2d Cir. 2009), on which Georgiadis also relies, support
his challenge. That case involved the extradition by the United
States of a defendant to Bosnia & Herzegovina, another country to
which the 1902 Treaty applies. Id. at 56, 58. The fact that the
Second Circuit held our own government to the terms of the 1902
Treaty in that case is not support for the proposition that
Georgiadis may challenge his conviction on the ground that a
foreign nation lacked the power that it claims to effect the
extradition pursuant to that treaty.
- 9 -
Case: 14-1993
Document: 00116983483
Page: 10
Date Filed: 04/08/2016
Entry ID: 5990733
rule" that "venue is proper in any district in which an overt act
in furtherance of the conspiracy was committed, even where an overt
act is not a required element of the conspiracy offense").
But
Georgiadis contends venue was not proper because there was no basis
for finding that such an overt act was taken.
We disagree.
Where a venue determination has been made by a jury, as
happened here, "[w]e will uphold the verdict[] . . . if a rational
juror could have found . . . proper venue by a preponderance of
the evidence."
Cir. 1996).
United States v. Josleyn, 99 F.3d 1182, 1190 (1st
In applying that standard, "[a]ll credibility issues
are to be resolved, and every reasonable inference drawn, in the
light most favorable to the verdict."
Id.
We have specifically held that, because the "central
objective" of a conspiracy to commit money laundering is "to
conceal
or
disguise,"
"facilitate[]
the
an
action
concealment
taken
aim
of
by
the
a
conspirator
money
to
laundering
transactions" is an overt act in furtherance of such a conspiracy.
United States v. Upton, 559 F.3d 3, 10-12 (1st Cir. 2009) (finding
that failing to file a tax return was an overt act in furtherance
of a conspiracy to commit money laundering).
Court,
in
the
context
of
a
case
involving
And the Supreme
mail
fraud,
has
identified one type of act that facilitates the concealment of a
crime to be a "lulling" communication -- a communication "designed
to lull the victims into a false sense of security, postpone their
- 10 -
Case: 14-1993
Document: 00116983483
Page: 11
Date Filed: 04/08/2016
Entry ID: 5990733
ultimate complaint to the authorities, and therefore make the
apprehension of the defendants less likely."
United States v.
Lane, 474 U.S. 438, 451-52 (1986); see also United States v.
Rutigliano, 790 F.3d 389, 396-97 (2d Cir. 2015) (holding that
mailings made to prevent the discovery of mail fraud are an overt
act in furtherance of a conspiracy to commit mail fraud); United
States v. Perry, 152 F.3d 900, 904 (8th Cir. 1998) (same).
Thus,
if the evidence in this case supports a jury's reasonable finding
that Georgiadis or any of his co-conspirators made a "lulling"
communication with respect to the money laundering in or into
Massachusetts, then venue in the District of Massachusetts was
proper.
See United States v. Gonzalez, 683 F.3d 1221, 1225 (9th
Cir. 2012) (upholding venue in the target district because a
conspirator "conducted communications with someone located in [the
target district]"); Naranjo, 14 F.3d 145, 147 (2d Cir. 1994)
(upholding venue in the target district based on "numerous phone
calls"
made
by
a
conspirator
to
a
non-conspirator
in
that
district); United States v. Cordero, 668 F.2d 32, 44 (1st Cir.
1981) (finding it "highly likely" that calls placed by a nonconspirator in the target district to conspirators outside the
target
district
supported
venue
in
the
target
district
but
ultimately deciding the issue on waiver).
We conclude that the evidence does provide sufficient
support
for
that
conclusion.
Specifically,
- 11 -
the
jury
could
Case: 14-1993
Document: 00116983483
Page: 12
Date Filed: 04/08/2016
Entry ID: 5990733
reasonably have found that a series of e-mails sent in 2010 by one
of
Georgiadis's
co-conspirators
--
Michael
Zanetti
--
to
a
Massachusetts-based company constituted "lulling" communications
aimed at concealing the money laundering.
The evidence showed the
following regarding those communications.
In February 2010, the Massachusetts-based broker Valence
Financial Group worked with DAC Global, a corporation that had
been created by Georgiadis and his co-conspirators, on a funding
arrangement for one of Valence's clients.
DAC Global agreed to
provide that client, Green Investment Group, with funding for a
building project, and Green deposited $500,000 into a DAC Global
account.
Global.
Months went by, and Green received no funding from DAC
As a result, Valence contacted Zanetti, who was acting as
a DAC Global representative, and attempted to recover the deposit.
The evidence further showed that Zanetti then sent a
series of e-mails to Valence.
Initially, Zanetti promised that
the "issues" with the deposit were "in the process of being
overcome" and that he would soon be able to provide a more detailed
explanation for the delay.
A Green representative then sent an e-
mail to Zanetti, copying Valence, that read: "We are completely
out of patience with you and your promises of performance.
If we
do not hear from you and get satisfactory answers within 24 hours,
we will contact the U.S. Department of Justice and begin to pursue
any and all means of redress available to us, against you and your
- 12 -
Case: 14-1993
Document: 00116983483
enterprises."
Page: 13
Date Filed: 04/08/2016
Entry ID: 5990733
Zanetti responded the next morning with an e-mail
to both Green and Valence.
That e-mail read: "From what I
understand, you are going to be receiving a letter from the fund's
appointed reps detailing everything.
Before you ask: I don't know
who they are, but I was told you would be contacted shortly."
The entire aim of the money laundering scheme was to
conceal, and the jury specifically found that the scheme lasted
until September 2011.
In light of that, the jury could reasonably
have found that Zanetti sent these e-mails specifically to delay
the date Valence or Green went to the authorities, as Green had
stated they would do.
Thus, the jury could reasonably have found
that these e-mails were "designed to lull [Valence and Green] into
a false sense of security, postpone their ultimate complaint to
the
authorities,
and
therefore
defendants less likely."
make
the
apprehension
of
See Lane, 474 U.S. at 451-52.
the
And
because Zanetti's "lulling" communications were made to a company
based in Massachusetts, they suffice to support venue in the
District of Massachusetts for Count 16.7
7
Because we find Zanetti's communications to Valence
sufficient to support venue for Count 16, we need not address the
government's other claimed basis for venue: rent payments
Georgiadis made (arguably with money derived from unlawful
activity) to a Massachusetts-based landlord. We do note, however,
that while Georgiadis vigorously contests whether those payments
"ever touched Massachusetts," he makes no such argument about
Zanetti's communications to Valence.
- 13 -
Case: 14-1993
Document: 00116983483
Page: 14
Date Filed: 04/08/2016
Entry ID: 5990733
We therefore reject Georgiadis's venue-based challenge
to his conviction on Count 16.8
We now turn to his remaining
challenges, which target his convictions generally.
III.
Georgiadis claims that the District Court made four
separate errors at trial that each independently requires us to
vacate all of his convictions.
We do not agree.
A.
The first of these trial-based challenges relies on
Batson v. Kentucky, 476 U.S. 79, 93, 98 (1986), which prohibits
"purposeful discrimination" in the use of a peremptory challenge
against a member of a protected class.
Id. at 98; United States
v. Girouard, 521 F.3d 110, 115 (1st Cir. 2008). Georgiadis argues,
as he did below, that the government engaged in impermissible
purposeful
discrimination
by
using
one
of
its
peremptory
challenges to strike a juror named Ms. Paunovic,9 and he contends
8
United States v. Cabrales, 524 U.S. 1, 6 (1998), on which
Georgiadis relies, is not to the contrary. In Cabrales, the Court
held that a defendant accused of laundering money in Florida could
not properly be tried in Missouri despite evidence that the
laundered money had originated from criminal activity in Missouri.
Id. at 10. But Cabrales was not a conspiracy case, and so the
Court had no occasion to address what qualified as "an overt act
in furtherance of" a conspiracy to commit money laundering.
Cabrales thus merely reinforces the general rule that "venue is
proper wherever any part of th[e charged] crime can be proved to
have taken place." United States v. Razo, 782 F.3d 31, 41 (1st
Cir. 2015).
9
The juror's first name does not appear to be in the record.
- 14 -
Case: 14-1993
Document: 00116983483
Page: 15
Date Filed: 04/08/2016
Entry ID: 5990733
that she "spoke with a noticeable accent, and was apparently
foreign-born."
The government argues that Georgiadis's Batson claim
fails because Georgiadis did not establish that Ms. Paunovic was
a member of a "protected class."
Girouard, 521 F.3d at 115; see
Gray v. Brady, 592 F.3d 296, 305 (1st Cir. 2010) ("Part of a
defendant's burden in making out a prima facie case of a Batson
violation is to show that the strike was used on a juror who is a
member
of
a
cognizable
group
that
has
been
or
is
currently
subjected to discriminatory treatment." (internal quotation marks
omitted)).
But there is a separate flaw with Georgiadis's Batson
claim: Georgiadis failed to show that the prosecutor struck Ms.
Paunovic because she was "foreign-born" or because she spoke with
an accent.
When Georgiadis objected to the prosecutor's use of a
peremptory challenge on Ms. Paunovic, the District Court asked the
prosecutor for his reason for striking her.
After the prosecutor
gave his reason, the District Court gave Georgiadis the opportunity
to make further argument. A colloquy followed. The District Court
then ruled that the prosecutor had stated "neutral reasons that
have not been rebutted sufficiently by the defendant."
We see no
basis on this record for concluding that the District Court clearly
erred in so finding.
See United States v. Charlton, 600 F.3d 43,
50 (1st Cir. 2010).
- 15 -
Case: 14-1993
Document: 00116983483
Page: 16
Date Filed: 04/08/2016
Entry ID: 5990733
In the colloquy with the District Court, the prosecutor
made clear that he was not exercising a peremptory challenge
because the juror was "foreign-born" or because she spoke with an
accent.
He explained instead that he was concerned that the juror
might be unduly sympathetic to Georgiadis's potential argument
that some of his criminal activity resulted from Georgiadis's lack
of understanding of English.
He based that concern on the juror's
report, during individual voir dire, that her father once had
trouble with law enforcement due to his own struggles with English.
The additional support that Georgiadis offers for his
Batson claim is minimal.
He contends that the prosecution struck
the lone juror it was able to strike who "appear[ed] to be from
th[e same] part of the world [as Georgiadis]."
He emphasizes that
the prosecution did not take its first opportunity to strike a
different juror who reported having a bad experience with law
enforcement.
He also points out that Ms. Paunovic expressly
professed her ability to be impartial.
Such a showing is far too
weak to demonstrate that the district court clearly erred in
refusing to find that the juror was struck by reason of "purposeful
discrimination."
See Batson, 476 U.S. at 98.
B.
Georgiadis's second claim of trial error is that the
District Court improperly admitted the testimony of FBI Special
Agent Ian Smythe, which testimony Georgiadis contends was so
- 16 -
Case: 14-1993
Document: 00116983483
Page: 17
Date Filed: 04/08/2016
harmful that his convictions must be set aside.
Entry ID: 5990733
We review a
District Court's decision to admit or exclude evidence for abuse
of discretion.
United States v. Rodríguez-Berrios, 573 F.3d 55,
60 (1st Cir. 2009).
Smythe's testimony was directed at comparing two sets of
items: (1) paper printouts of e-mails associated with two Google
e-mail accounts that the government contended were owned and used
by Georgiadis and (2) electronic versions of e-mails on a hard
drive that was recovered from an office used by Georgiadis and his
co-conspirators.
Smythe testified that, based on his review,
dozens of e-mails (which he proceeded to list) from the hard drive
matched, were "exactly like," or were "the same as" corresponding
e-mails reflected by the Google printouts.
The precise nature of Georgiadis's challenge to the
admission of this testimony is far from clear.10
The main thrust
of
the
Georgiadis's
"bolster[ed]"
argument
Smythe's
appears
testimony
to
about
be
that
the
prosecutor
provenance
of
the
printouts by eliciting certain testimony that gave Smythe the
credibility of an expert "without having produced the proper expert
10
Georgiadis does cite to Federal Rule of Evidence 901(a) for
the proposition that, in order to authenticate or identify an item
of evidence, the proponent of such an item must come forward with
"evidence sufficient to support a finding that" the item is what
the proponent claims it to be.
But he is not challenging the
authentication or admission of the Google printouts, and the
prosecution never introduced the hard drive itself into evidence.
It is thus not clear what application Rule 901(a) could have here.
- 17 -
Case: 14-1993
Document: 00116983483
Page: 18
report or expert discovery."
Date Filed: 04/08/2016
Entry ID: 5990733
Georgiadis also appears to argue
that it was unfair for Smythe to be allowed to testify to his
observations of a hard drive that was not itself produced as
evidence.
He compares that procedure to "call[ing] a fingerprint
examiner, but refus[ing] to produce one of the two prints being
compared."
And, finally, Georgiadis stresses that Smythe himself
admitted on cross-examination that the procedure to which he
testified was "forensically unsound."
We need not parse the exact contours of Georgiadis's
argument in order to locate what he has not: the specific Federal
Rule of Evidence that he contends was violated.
And that is
because any error the District Court may have been committed in
admitting Smythe's testimony was harmless.11
There was substantial evidence of Georgiadis's guilt
that did not depend on the conclusion that Georgiadis actually
sent and received any of the e-mails in question.
The evidence at
trial provided ample support for a jury to conclude that Georgiadis
met with developers and represented himself both as a partner of
11
Our conclusion obviates any need for us to resolve the
parties' dispute about whether we may properly consider evidence
put forth by Georgiadis in his post-trial motion for a new trial
to show that Smythe's conclusions were inaccurate. Relatedly, we
note that although Georgiadis states that he "is most certainly
challenging the denial" of that motion for a new trial, he has
made no developed argument relating to that motion, and so we deem
any such argument waived. See United States v. Zannino, 895 U.S.
1, 17 (1st Cir. 1990).
- 18 -
Case: 14-1993
Document: 00116983483
Page: 19
Date Filed: 04/08/2016
Entry ID: 5990733
Condo (his co-conspirator) and as the "European representative" of
the
non-existent
fund
that
was
supposedly
going
to
provide
financing for those developers. The evidence also provided support
for a jury's reasonably finding that Georgiadis was one of three
co-signatories on more than one of the bank accounts that received
deposits from developers.
And the jury could reasonably infer
that money from those accounts was later transferred directly to
Georgiadis's personal accounts.
Moreover, wholly apart from Smythe's testimony, there
was a great deal of evidence tying Georgiadis to the e-mails
contained in the Google printouts.
The printouts included, among
other things, personal e-mails sent to Georgiadis's girlfriend and
an e-mail concerning the shipping of a car he owned.
The latter
e-mail included as an attachment a copy of Georgiadis's Greek
passport and a notarized statement signed by Georgiadis.
The
government also introduced "customer profiles" for both of the
disputed e-mail accounts, at least one of which listed the "contact
name" for one account as "Evripides Georgiadis."
That same
customer profile also listed an address in Greece to which multiple
wire
transfers
addressed
to
Georgiadis
were
sent
during
the
conspiracy. And that customer profile also listed two credit cards
owned by "Evripides Georgiadis" as associated with the account (as
well as a third owned by DAC Global Energies LLC).
Finally,
according to the evidence at trial, the customer profiles for both
- 19 -
Case: 14-1993
Document: 00116983483
Page: 20
Date Filed: 04/08/2016
Entry ID: 5990733
accounts each listed the same phone number, suggesting that they
were owned by the same person.
Thus, even if we were to assume that the District Court
erred in admitting Smythe's testimony, "it is highly probable that
the error did not affect the verdict," see United States v.
Delgado-Marrero, 744 F.3d 167, 179 (1st Cir. 2014).
We therefore
reject
of
Georgiadis's
challenge
to
the
admission
Smythe's
testimony.
C.
Georgiadis's third claim of trial error is that the
District Court erroneously denied his motion for a mistrial based
on a concededly late disclosure by the prosecution of certain
materials.
[Blue Br. 53].
Our review is for abuse of discretion.
United States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000).
The late-disclosed materials included certain e-mail
communications from four of the prosecution's victim-witnesses -Gregory Dicker, Greg Petrini, Kenneth Davlin, and Gina ChampionCain -- to the prosecution's victim-witness coordinator, Jessica
Pooler.
The
prosecutor's
late-disclosed
notes
from
his
materials
meeting
also
with
included
Dicker.
the
The
communications arguably showed that the four witnesses all had a
financial
Georgiadis.
or
personal
stake
in
obtaining
a
conviction
of
And the prosecutor's notes arguably conflicted with
Dicker's trial testimony.
- 20 -
Case: 14-1993
Document: 00116983483
District
of
Page: 21
Date Filed: 04/08/2016
Massachusetts
Local
Rule
Entry ID: 5990733
116.2(b)(2)
requires prosecutors to disclose, among other things, (A) "any
information that tends to cast doubt on the credibility or accuracy
of any witness . . . that the government anticipates calling" and
(B) "any inconsistent statement, or a description of such a
statement, made orally or in writing by any witness whom the
government anticipates calling" at least twenty-one days prior to
trial. D. Mass. Loc. R. 116.2(b)(2). Nonetheless, the prosecution
disclosed the relevant communications and the relevant portion of
the
prosecutor's
notes
only
after
all
four
of
the
affected
witnesses had testified.
In response, the District Court afforded Georgiadis the
"customary remedy" for this type of violation: the opportunity to
re-call the affected witnesses after he had had an opportunity to
consider the late-disclosed materials.
See United States v.
Mathur, 624 F.3d 498, 506 (1st Cir. 2010).
The District Court
also expressly stated that it would afford Georgiadis "the maximum
amount of leeway in his cross-examination with th[e affected]
witnesses."
Finally, the District Court indicated that it would
give a cautionary instruction to the jury indicating that the
affected witnesses were being re-called because the government had
"inadvertently failed to disclose" certain information and thus
- 21 -
Case: 14-1993
that
Document: 00116983483
the
re-calling
of
Page: 22
witnesses
Date Filed: 04/08/2016
could
not
be
Entry ID: 5990733
held
against
Georgiadis.12
Given these corrective measures, it is hard to see how
the District Court abused its discretion.
Georgiadis does argue
that he could have made more effective use of the late-disclosed
materials if he had had access to them prior to the start of trial.
He
contends
that
the
ten-day
delay
examinations rendered them ineffective.
preceding
the
re-cross-
He further contends that
the government's late disclosure of the impeachment materials -which
primarily
related
to
the
victim-witnesses'
"financial
interest and potential bias" -- prevented him from using those
materials in his opening statement.
But, in reviewing a district court's denial of a motion
for a mistrial for an abuse of discretion, we must be "mindful
that the trial court has a superior point of vantage, and that it
is only rarely -- and in extremely compelling circumstances --
12
The limiting instruction the District Court later gave was
as follows:
Today we're going to interrupt the testimony of Mr. Brin
and allow the defendant to recall a couple of witnesses
who have already testified. They have been given some
information that they didn't have, or he, I should say,
was given some information they didn't have before, and
he is exercising his right to recall these witnesses for
a brief cross-examination. This is not the fault of the
defendant, and it can't be held against him. So we're
going to interrupt Mr. Brin's testimony and recall two
witnesses today, and I think there's actually one more
coming
back
tomorrow
for
brief
further
crossexamination. So with that, we will recall Mr. Dicker.
- 22 -
Case: 14-1993
Document: 00116983483
Page: 23
Date Filed: 04/08/2016
Entry ID: 5990733
that an appellate panel, informed by a cold record, will venture
to reverse a trial judge's on-the-spot decision." Freeman, 208
F.3d at 339 (internal quotation marks omitted).
And the District
Court stated that the re-cross-examinations of those witnesses was
"more
powerful,
not
less
powerful"
because
witnesses had to be specifically recalled.
the
government
Georgiadis also had
the opportunity to highlight the financial interests and potential
biases of the victim-witnesses in his opening statement, and he
actually
did
so
in
his
original
cross-examinations
of
those
witnesses.
Thus, Georgiadis has not shown the kind of "extremely
compelling
circumstances"
that
would
require
reversal
of
the
District Court's decision to deny the motion for a new trial.
See
id.; United States v. Tashjian, 660 F.2d 829, 838-39 (1st Cir.
1981) (upholding a District Court's denial of a mistrial motion
where the late-disclosed materials "would have added little, if
anything, to the effective cross-examinations already conducted"
and the defendants were given the opportunity to recall witnesses).
The wealth of evidence against Georgiadis, which we have already
detailed, only bolsters our confidence in that conclusion.
D.
Georgiadis's final claim of trial error, which he also
raised
below,
is
that
the
District
instruction on reasonable doubt.
Court
gave
an
erroneous
"We review preserved claims of
- 23 -
Case: 14-1993
Document: 00116983483
Page: 24
Date Filed: 04/08/2016
Entry ID: 5990733
instructional error under a two-tiered standard: we consider de
novo whether an instruction embodied an error of law, but we review
for
abuse
of
discretion
whether
the
instructions
adequately
explained the law or whether they tended to confuse or mislead the
jury on the controlling issues."
United States v. Symonevich, 688
F.3d 12, 24 (1st Cir. 2012) (alterations and internal quotation
marks omitted).
In charging the jury, the District Court instructed:
"If . . . you view the evidence in the case as reasonably permitting
either of two conclusions -- one that the defendant is guilty as
charged, the other that the defendant is not guilty -- you will
find the defendant not guilty."
Georgiadis argues that such an
"either-of-two-conclusions" charge is improper because it could
lead a jury to believe that the standard of proof is less than
proof beyond a reasonable doubt.
But in United States v. O'Shea, 426 F.3d 475, 483 (1st
Cir. 2005), we considered an instruction that referred "to guilt
and non-guilt, rather than innocence," and we concluded that the
instruction did not require reversal because the District Court
elsewhere made the standard of proof very clear.
To be sure,
O'Shea was decided on plain-error review, but we followed similar
reasoning in upholding a similar instruction in United States v.
Ranney, 298 F.3d 74, 79-80 (1st Cir. 2002), to which we cited in
O'Shea.
- 24 -
Case: 14-1993
Document: 00116983483
Page: 25
Date Filed: 04/08/2016
Entry ID: 5990733
Here, as in O'Shea, the District Court contrasted guilt
with non-guilt rather than with innocence.
The District Court
also told the jury multiple times that the government had to prove
Georgiadis's
guilt
beyond
a
reasonable
described that burden accurately.
doubt,
and
the
Court
We thus conclude that there is
"no reasonable likelihood that the jury failed to understand the
government's burden as proof beyond a reasonable doubt."
298 F.3d at 80.
Ranney,
Accordingly, we reject Georgiadis's challenge to
the instructions.
IV.
That
reasonableness
sentence.13
brings
of
us
his
to
Georgiadis's
challenge
below-guidelines,
to
102-month
the
prison
The government characterizes Georgiadis's challenge
as if it is only to the sentence's substantive reasonableness, and
Georgiadis does not expressly contest that characterization.
But
because some of his contentions have a procedural cast, we address
both the procedural and the substantive reasonableness of the
sentence.
Our review as to both is for abuse of discretion.
United States v. Madsen, 809 F.3d 712, 719 (1st Cir. 2016).
Georgiadis
argues
that
the
District
Court
failed
properly to take into account two of the sentencing factors set
13
In sentencing Georgiadis, the District Court calculated the
guideline sentencing range to be 135 to 168 months. Georgiadis
does not contest this guideline calculation.
- 25 -
Case: 14-1993
Document: 00116983483
Page: 26
Date Filed: 04/08/2016
Entry ID: 5990733
out in 18 U.S.C. § 3553(a): "the nature and circumstances of the
offense," id. § 3553(a)(1), and "the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct," id. § 3553(a)(6).
And
"failing
the
to
consider
the
§
3553(a)
factors"
is
one
of
procedural errors that can amount to an abuse of discretion.
United States v. Vélez-Soto, 804 F.3d 75, 78 (1st Cir. 2015)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
there was no such failure here.
But
The District Court explicitly
stated at sentencing that it did consider the § 3553(a) factors.
See United States v. Davila-Gonzalez, 595 F.3d 42, 49 (1st Cir.
2010) ("[T]he fact that the court stated that it had considered
all the section 3553(a) factors is entitled to some weight.").
The District Court also addressed the particular factors to which
Georgiadis
refers
on
appeal
--
Georgiadis's
lower
degree
of
culpability and the possible disparity between his sentence and
that of his co-conspirators.
Georgiadis's
substantively
contention
unreasonable
fares
that
no
his
better.
sentence
He
rests
was
that
challenge on his claim that his co-conspirators received lower
sentences than he did, even though he played a lesser role in the
conspiracy.
The District Court did acknowledge that one of
Georgiadis's co-conspirators -- Condo -- was "more culpable" than
was Georgiadis.
But the District Court also stated that Condo
- 26 -
Case: 14-1993
Document: 00116983483
Page: 27
Date Filed: 04/08/2016
Entry ID: 5990733
"would have been sentenced to well more than ten years imprisonment
had he not early on expressed his willingness to plead guilty and
to accept full responsibility for his and your egregious crimes."
The District Court then continued: "And although Mr. Condo was
surely
more
culpable
than
you
were,
he
was
deserving
substantial discount to which you are not entitled.
approved
such
reasoning
in
a
You are not
being punished for exercising your right to go to trial."
consistently
of
rejecting
We have
disparity
challenges of the kind Georgiadis brings. See, e.g., United States
v. Alejandro-Montanez, 778 F.3d 352, 357, 361 (1st Cir. 2015)
("[T]he district court did supply a sufficient reason for the
disparity between Defendants and other conspirators: namely, the
other conspirators pled guilty before trial.").
Moreover, the District Court stated that its belowguideline sentence was based on the harm Georgiadis caused his
victims, the need to deter Georgiadis and others from committing
similar crimes, and the fact that Georgiadis did not accept
responsibility for his actions.
That is "a plausible sentencing
rationale" that led to a "defensible result."
See United States
v. Reyes-Santiago, 804 F.3d 453, 468 (1st Cir. 2015).
have
no
trouble
concluding
that
Georgiadis's
We thus
sentence
is
substantively reasonable. See United States v. Merritt, 755 F.3d
6, 12 (1st Cir. 2014) ("It is a rare below-the-range sentence that
- 27 -
Case: 14-1993
will
Document: 00116983483
prove
vulnerable
to
Page: 28
a
Date Filed: 04/08/2016
defendant's
claim
unreasonableness.").
V.
For the foregoing reasons, we affirm.
- 28 -
of
Entry ID: 5990733
substantive
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?