USA v. Armenak Abulyan

Filing 511130924

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USA v. Armenak Abulyan Doc. 511130924 Case: 09-50493 Document: 00511130924 Page: 1 Date Filed: 06/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-50493 S u m m a r y Calendar June 3, 2010 Lyle W. Cayce Clerk U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. A R M E N A K ABULYAN; FREDRIK ABULYAN, also known as Frederick A b u ly a n , D e f e n d a n t s -A p p e l la n t s A p p e a ls from the United States District Court fo r the Western District of Texas USDC No. 7:08-CR-196-2 B e fo r e KING, BARKSDALE, and GARZA, Circuit Judges. P E R CURIAM:* A r m e n a k Abulyan and Fredrik Abulyan were convicted by a jury of c o n s p ir a cy to commit access-device fraud, aiding and abetting in such fraud, and a id in g and abetting in access-device-making equipment, in violation of 18 U.S.C. 2, 1029 (a)(1), (a)(4) and (b)(2). Fredrik Abulyan was sentenced to 33 months' im p r is o n m e n t ; Armenak Abulyan, to 36 months. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 09-50493 Document: 00511130924 Page: 2 No. 09-50493 Date Filed: 06/03/2010 A r m e n a k Abulyan contends the court erred in admitting recorded s ta t e m e n t s he made to police during a two-hour-and-30 minute traffic stop b e c a u se the statements were made while he was in custody and prior to being a d v is e d of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He further c o n te n d s the videotape of the traffic stop was introduced into evidence in v io la tio n of the standing discovery order because it was not disclosed timely. A r m e n a k and Fredrik Abulyan claim the district court erred in applying a twole v el "sophisticated means" enhancement, pursuant to Guideline 2B1.1(b)(9)(C). When reviewing the denial of a suppression motion, conclusions of law are r e v ie w e d de novo; findings of fact, for clear error. United States v. Gibbs, 421 F .3 d 352, 35657 (5th Cir. 2005). Along that line, the evidence is viewed in the lig h t most favorable to the prevailing party. Id. The denial of a motion to s u p p r e s s may be affirmed based on any rationale supported by the record. U n ite d States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999). W e need not decide whether the roadside detention converted to a de facto a rr e s t prior to the statements made by Armenak Abulyan, for which Miranda w a r n in g s would be required, because, even if it did, the error was harmless. See U n ited States v. Zavala, 541 F.3d 562, 581 (5th Cir. 2008) ("A constitutional e r r o r may be deemed harmless if the beneficiary of the constitutional error p r o v e s beyond a reasonable doubt that the error complained of did not contribute t o the verdict." (citing Neder v. United States, 527 U.S. 1, 15 (1999))); United S t a te s v. Virgen-Moreno, 265 F.3d 276, 294 (5th Cir. 2001) (noting that even t h o u g h the district court erred in admitting statements obtained during preM ir a n d a custodial questioning, any error was harmless beyond a reasonable d o u b t in the light of other overwhelming evidence relating to matters for which d e fen d a n t had given statement). B a s e d upon the evidence adduced at trial, both direct and circumstantial, a n d the effect of the constitutional violations on the trial process, the evidence 2 Case: 09-50493 Document: 00511130924 Page: 3 No. 09-50493 Date Filed: 06/03/2010 u n r e la te d to the alleged constitutional violation and which linked Armenak A b u ly a n and his brother to the unauthorized use of credit card numbers was o v e r w h e lm in g ly sufficient to establish Armenak Abulyan's guilt beyond a r e a s o n a b le doubt. See United States v. Bentley, 875 F.2d 1114, 1117 (5th Cir. 1 9 8 9 ) (citing Germany v. Estelle, 639 F.2d 1301, 1303 (5th Cir. 1981)). T h e r e fo r e , any error in admitting Armenak Abulyan's statements was harmless. S e e id.; Virgen-Moreno, 265 F.3d at 294. F u r t h e r , Armenak Abulyan failed to show the district court abused its d is c r e tio n in allowing the videotaped statements into evidence. He bases this c o n te n tio n on the grounds that the Government failed to provide the videotape w it h in the time provided in the district court's discovery order. D e fe n d a n t s requested a one-day continuance to review the video, and the c o u r t granted that request. Although the trial immediately resumed, without o b je c tio n , there was no further testimony about the video; and, the video was not s h o w n to the jury until the following day, pursuant to the agreed-upon c o n tin u a n c e . Therefore, Armenak Abulyan has failed to demonstrate he was d e n ie d due process or that the court abused its broad discretion in remedying the a lle g e d failure of the Government to comply with its discovery order in the m a n n e r in which it did. Bentley, 875 F.2d at 1118. D e fe n d a n t s also challenge the application of the two-level enhancement u n d e r Guideline 2B1.1(b)(9)(C) for "sophisticated means" and contend that the a p p l ic a t io n constituted double counting because they also received a two-level e n h a n c e m e n t under 2B1.1(b)(10), based on the offense involving the possession o f device-making equipment. Defendants contend that their conduct was not c o m p l e x or intricate in either its execution or concealment and that no evidence e x is t e d as to the execution of the scheme other than that they purchased fuel w it h fraudulent cards. 3 Case: 09-50493 Document: 00511130924 Page: 4 No. 09-50493 Date Filed: 06/03/2010 T h e district court's factual finding that Defendants used sophisticated m e a n s is reviewed only for clear error. United States v. Conner, 537 F.3d 480, 4 9 2 (5th Cir. 2008) (citing United States v. Powell, 124 F.3d 655, 666 (1997)). G u id e l in e 2B1.1(b)(9)(C) provides for a two-level increase in the offense le v e l if the offense otherwise involved sophisticated means. The commentary to 2B1.1 provides in pertinent part that "`sophisticated means' means especially c o m p l e x or especially intricate offense conduct pertaining to the execution or c o n c e a lm e n t of an offense." U.S.S.G. 2B1.1, comment. (n.8(B)). The c o m m e n t a r y further notes that "[c]onduct such as hiding assets or transactions, o r both, through the use of fictitious entities, corporate shells, or offshore fin a n c ia l accounts also ordinarily indicates sophisticated means". Id. D e fe n d a n t s were found in possession of a credit card swiper; the swiper h a d been used to reprogram magnetic strips on other cards found in the p o s s e s s io n of Defendants with credit card numbers obtained without the a u t h o r iz a t io n of the account holders; Defendants used the reprogrammed m a g n e t ic -s t r ip cards at different fueling stations around the country; the u n a u t h o r i z e d credit card numbers were only used for a few transactions each, w h ic h lessened the likelihood of the fraud being discovered; and the credit card n u m b e rs were reprogrammed onto cards that would not readily be identified as c r e d it cards, such as Coffee Bean cards, which had the effect of concealing the n a tu r e of the fraudulent scheme. Based on the totality of the evidence, the d i s tr ic t court's application of the sophisticated-means enhancement was not c le a r ly erroneous. See Connor, 537 F.3d at 492. F i n a lly ," [d ]o u b le counting is prohibited only if the particular guidelines at is s u e specifically forbid it". United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1 9 9 5 ); see also U.S.S.G. 1B1.1, comment. (n.4(A)) (explaining when multiple a d ju s tm e n t s within one Guideline are permissible). Defendants have not p o i n t e d to any guideline provision that forbids the application of both e n h a n c e m e n ts , and there is no such prohibition. See 2B1.1. 4 Case: 09-50493 Document: 00511130924 Page: 5 No. 09-50493 Date Filed: 06/03/2010 M o r e o v e r , the application of two different adjustments to the same course o f conduct does not constitute double counting if each adjustment targets a d iffe r e n t aspect of Defendants' behavior. United States v. Scurlock, 52 F.3d 531, 5 4 0 (5th Cir. 1995); see also United States v. Olis, 429 F.3d 540, 549 (5th Cir. 2 0 0 5 ) (holding that two similar enhancements that are based on essentially the s a m e conduct could both be applied). Defendants not only used device-making e q u ip m e n t, but they used it as part of a scheme that, on the whole, was s o p h is t i c a t e d . Accordingly, application of the enhancements was permissible a n d did not constitute double counting. A F F IR M E D . 5

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