US v. Marko Rudi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00412-NCT-1 Copies to all parties and the district court/agency. [998718362].. [10-4736]

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Date Filed: 11/08/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4736

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKO RUDI,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00412-NCT-1)

Argued:

October 25, 2011

Decided:

November 8, 2011

Before MOTZ, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Jenifer Wicks, Washington, D.C., for Appellant.
Robert
Michael Hamilton, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
ON BRIEF: John W.
Stone, Jr., Acting United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Estonia extradited Marko Rudi to the United States to face
charges
attempted

in
to

federal
obtain

court

for

kickbacks

a

fraud

scheme

in

return

for

States government contracts in Iraq.

in

which

awarding

he

United

Rudi pled guilty to one

count of major fraud against the United States in exchange for
the dismissal of a second wire fraud charge and recommendation
of a sentence at the low end of the applicable guideline range.
On

appeal,

Rudi

contends

that

the

Government

obtained

his

conviction in violation of the Estonian extradition order and
did not fulfill its obligations under the plea agreement; he
also maintains that the district court abused its discretion in
sentencing him.

We affirm.

I.
On November 26, 2007, a federal grand jury issued a five
count indictment charging Rudi with wire fraud and deprivation
of honest services, in violation of 18 U.S.C. §§ 1343, 1346;
bribery, in violation of 18 U.S.C. § 666(a)(1)(B); major fraud
against the United States, in violation of 18 U.S.C. § 1031;
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i);
and concealment of money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i).

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Research Triangle Institute International, Inc. (“RTI”), a
company that has managed approximately one billion dollars in
contracts

for

the

United

States

Agency

Development (“USAID”), had employed Rudi.

for

International

Around April 2003,

while working at RTI, Rudi was responsible for supervising a
USAID contract in Iraq known as the Local Governance Project.
Instead

of

obtaining

competitive

bids

from

providers,

Rudi

attempted to obtain kickbacks from two bidders, SMitTeq LLC and
Business Systems House FZ-LLC (“BSH”), in exchange for awarding
a contract.

After the contract was awarded to it, BSH wired

approximately $255,000 to an attorney in Durham for the purchase
of

a

house

at

7

Birnham

Lane,

Durham,

N.C.

The

home

was

purchased in the name of a shell corporation, Southbay Partners,
but Rudi and his family occupied the house.
At the time of his indictment, Rudi lived in his native
country of Estonia.
formally

requested

On September 17, 2008, the United States
that

pending indictment.

Estonia

extradite

Rudi

based

on

the

On December 12, 2008, the Estonian Ministry

of Justice ordered the extradition of Rudi on the two fraud
charges, but refused to extradite him for the charges of bribery
and money laundering.
dismiss

the

bribery

Following his arraignment, Rudi moved to
and

money

laundering

charges

Estonia’s refusal to extradite him on those grounds.

3

based

on

The United

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States ultimately consented to the dismissal of those charges,
and the charges were dropped.
On March 18, 2010, Rudi pled guilty to one count of major
fraud against the United States pursuant to a plea agreement.
The

agreement

provided,

inter

alia,

that

the

remaining

wire

fraud charge would be dismissed and that “the United States will
recommend to the Court that the defendant receive a sentence at
the low end of the applicable advisory guideline range.”
At sentencing, the district court determined the applicable
advisory range to be 24-30 months imprisonment.
asked

for

the

Government’s

recommendation,

When the court
the

prosecutor

replied “in the plea agreement the Government recommended to the
Court

a

sentence

Nevertheless,
variance

was

the

at

the

district

appropriate

lowest

and

court

end

of

determined

sentenced

Rudi

guidelines.”

that
to

33

an

upward

months

of

confinement, 3 years of supervised release, and a $150,000 fine.
Rudi noted this timely appeal.

II.
Rudi first contends that his conviction was obtained in
violation

of

the

Estonian

extradition

violates the rule of specialty.

order

and

therefore

He argues that his conviction

for major fraud against the United States was dependent on facts

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that

Document: 62

showed

Date Filed: 11/08/2011

that

he

accepted

a

Page: 5 of 11

bribe

from

BSH,

and

Estonia

explicitly refused to extradite Rudi on the charge of bribery.
The rule of specialty prohibits a requesting nation from
prosecuting

an

extradited

individual

for

offenses

other

than

those on which the surrendering nation agreed to extradite.

See

United States v. Rauscher, 119 U.S. 407, 418-19 (1886); United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).

The rule of

specialty

extradition

finds

root

in

many

of

treaties of the United States.

the

reciprocal

In the case of Estonia, the

treaty provides that “[n]o person shall be tried for any crime
or

offense

other

than

that

for

which

he

was

surrendered.”

Treaty Between the United States and Esthonia for Extradition of
Fugitives

from

Justice

art.

IV,

U.S.-Est.,

Nov.

8,

1923,

43

Stat. 1849.
Assuming, without deciding, that Rudi has standing to raise
the issue of a violation of the rule of specialty, we hold that
Rudi has waived his right to appeal the issue by failing to
raise the argument in the district court.
at 186-87.

See Davis, 954 F.2d

The rule of specialty is equivalent to a limit on

personal jurisdiction over the defendant, and so is subject to
waiver if not raised in a timely manner.

See Fed. R. Crim. P.

12(b)(3), (e); United States v. Marquez, 594 F.3d 855, 858 (11th
Cir. 2010); United States v. Anderson, 472 F.3d 662, 668 (9th
Cir. 2006); United States v. Yousef, 327 F.3d 56, 115 (2d Cir.
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2003); United States v. Vreeken, 803 F.2d 1085, 1088-89 (10th
Cir. 1986).

In the district court, rather than contending that

the

specialty

rule

of

barred

prosecution

count, Rudi pled guilty to the charge.

on

the

major

fraud

His total failure to

raise the rule of specialty objection with respect to the major
fraud count in the district court waives his reliance on the
specialty doctrine before us.
Rule 12(e) does provide that a court may grant relief from
such a waiver upon a showing of “good cause.”
12(e).

Fed. R. Crim. P.

However, Rudi has provided no reason for his failure to

raise the argument before the district court.
moved to

dismiss

the

bribery

and

money

Given that he

laundering

claims

as

violating the rule of specialty, he clearly understood his right
to

rely

on

the

rule

of

specialty

but

failed

to

do

so

with

respect to the major fraud charge. 1
Rudi’s contention that his claim presents a “structural”
defect that cannot be waived fails in light of our holding in
Davis.

Considering a nearly identical argument, we there held:

Because courts construe international treaties as
equivalent in supremacy to validly enacted federal
law, the principle of specialty articulated by the
1

Rudi also contends that he cannot waive the
specialty
because
the
doctrine
is
a
right
of
Regardless of whether Estonia continues to maintain a
invoke the doctrine of specialty, Rudi waived his
invoke the doctrine.
See Davis, 954 F.2d at 186-87;
803 F.2d at 1088-89.
6

rule of
Estonia.
right to
right to
Vreeken,

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. . . Extradition Treaty must be considered no more
than a statutorily created right.
Protection of this
right does not rise to the level of fundamentality
that this court has traditionally demanded before
addressing a question of law not argued at the
district court level.
954

F.2d

at

187.

Therefore,

Rudi

has

waived

his

rule

of

specialty contention.

III.
Next,

Rudi

contends

that

the

Government

violated

its

obligation in the plea agreement to recommend a sentence at the
low

end

of

particular,

the
Rudi

applicable
argues

advisory

that

the

guidelines

Government

range.

ought

to

In
have

“advocated” for a sentence at the low end of the guidelines
range instead of “merely stat[ing] the condition of the plea
agreement.”

We

conclude

that

the

Government

fulfilled

its

obligations. 2
The plea agreement provides, in relevant part:

“the United

States agrees that, once the Court has determined the applicable

2

The parties dispute the proper standard of review.
The
Government contends that Rudi “did not claim the plea agreement
was breached or attempt to withdraw his guilty plea” in the
district court, and therefore we should review only for plain
error.
Rudi contends that he preserved the argument, citing
trial counsel’s statement that the Government must “advocate”
for the low end of the guidelines, and so we should apply the
more forgiving clear error standard of review.
We need not
decide which standard of review applies because even applying
the more generous standard, Rudi cannot prevail.
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advisory guideline range, the United States will recommend to
the Court that the defendant receive a sentence at the low end
of the applicable advisory guideline range.”
court

asked

for

the

Government’s

When the district

recommended

sentence,

the

following colloquy ensued:
THE COURT:

THE COURT:
MR. HAMILTON:

Mr. Hamilton, you are recommending the
24 months?
Your Honor, in the plea agreement the
Government recommended to the Court a
sentence
at
the
lowest
end
of
guidelines.
I think that’s all you can say.
Yes, sir.

prosecutor’s

recommendation

MR. HAMILTON:

The

was

also

included

in

the

presentence report, which indicates that “the government will
recommend that the defendant be sentenced at the low end of the
guideline range.”
Rudi

received

agreement:

that

sentence

the

at

exactly
the

low

the

benefit

Government
end

of

the

promised

recommend

that

applicable

in
he

the

plea

receive

guideline

a

range.

“[I]n enforcing plea agreements, the government is held only to
those promises that it actually made to the defendant.”
States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994).
Government

binds

itself

to

“enthusiastically”

United

Unless the

recommending

a

sentence, the Government is not obligated to do more than state
its recommended sentence.
453, 455 (1985).

United States v. Benchimol, 471 U.S.

Here, the Government promised to recommend a

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low end sentence, and did so.

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Therefore, the Government did not

violate the plea agreement.
Rudi points to United States v. Brown, 500 F.2d 375 (4th
Cir. 1974), and United States v. Grandinetti, 564 F.2d 723 (5th
Cir. 1977), to support his contention that the Government must
do more than state its recommendation.

But, in both of those

cases, unlike the case at hand, the prosecutor made remarks at
the sentencing hearing expressing reservations about the plea
agreement or arguing against the agreement entirely.

Here, the

Government did not undermine its recommendation to the court,
and therefore, it met its obligation under the agreement.

IV.
Lastly, Rudi challenges his sentence on several grounds.
This

court

reviews

“deferential

the

reasonableness

abuse-of-discretion

of

standard.”

a

sentence
Gall

under

v.

a

United

States, 552 U.S. 38, 41 (2007).
Rudi primarily contends that the district court did not
consider the 18 U.S.C. § 3572(a) factors in imposing a fine of
$150,000.

We disagree.

The court considered the factors and

attempted both to tailor the fine to the crime at hand and to
address Rudi’s arguments.

The court noted the severity of the

crime, the gain to Rudi, and the loss to the victims.

When Rudi

objected to the fine, the district court further noted that “he
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is well educated.

He has a masters degree in accounting.

has

accounting,

experience

in

bright person.”

and

is

obviously

an

He

extremely

Moreover, the district court ordered payment of

the fine in the form of small $150 monthly installments and
instructed Rudi that if he was unable to pay that amount, he
could bring it to the court’s attention following his release.
We therefore find that the district court did not abuse its
discretion in imposing a $150,000 fine.
Rudi

also

contends

that

the

district

court

sentencing him to incarceration for 33 months.

erred

in

We find that

there was no significant procedural error and that the sentence
See United States v. Evans, 526

was substantively reasonable.
F.3d 155, 161 (4th Cir. 2008).

The court based its sentence on

the fact that (1) Rudi’s crime was an “awful fraud” that took
advantage

of

taxpayer

dollars;

(2)

Rudi

had

taken

steps

to

conceal his fraud; (3) Rudi may have tried to receive kickbacks
from other companies; and (4) there was a need for deterrence.
Moreover, the 33 month term of incarceration was only a small
variance
court

from

thus

the

24-30

adequately

month

advisory

considered

the

range.
factors

The
in

18

district
U.S.C.

§ 3553(a) and did not abuse its discretion in imposing the 33
month sentence.
Finally,
relied

on

Rudi

his

claims

national

that

the

origin
10

district

and

court

immigration

improperly
status

in

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sentencing.

Date Filed: 11/08/2011

We cannot agree.

Page: 11 of 11

Of course, “sentences imposed on

the basis of impermissible considerations, such as a defendant’s
race or national origin, violate due process.”

United States v.

Bakker, 925 F.2d 728, 740 (4th Cir. 1991) (internal citations
omitted); see also United States v. Onwuemene, 933 F.2d 650, 651
(8th Cir. 1991); United States v. Borrero-Isaza, 887 F.2d 1349,
1355

(9th

Cir.

1989);

U.S.S.G.

§

5H1.10

(“Race

.

.

.

[and

n]ational [o]rigin . . . are not relevant in the determination
of a sentence.”).

However, there is no indication that the

district court relied on Rudi’s national origin in imposing the
sentence.
came

to

Rudi’s

Rudi relies entirely on one statement -- “Mr. Rudi
this

country”

personal

and

--

that

education

the

court

background,

made

in

describing

factors

properly considered under 18 U.S.C. § 3553(a)(1).

that

are

The court

made no disparaging remarks about Rudi’s alienage and made no
statement

suggesting

that

it

was

origin in imposing the sentence.
district

court

impermissibly

relying

on

Rudi’s

national

We are unable to find that the

based

the

sentence

on

national

origin.

V.
For the foregoing reasons, the judgment of the district
court is in all respects
AFFIRMED.
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