United States v. Yildiz
Opinion of the Court
SUMMARY ORDER
Defendant Fuat Yildiz appeals his judgment of conviction and sentence for violating the Hobbs Act, 18 U.S.C. § 1951 (1994), following a jury trial. We address one of Yildiz’s arguments on appeal in a contemporaneous published opinion and reject his other four assignments of error in this summary order.
Full familiarity with the evidence adduced at trial and the district court’s rulings is here assumed. Yildiz first argues that the district court erred in admitting portions of the plea allocutions of two of his co-defendants, Alexander Tsalevich and Dimitry Alexandrovich Tereshonok, because they were not unavailable under Federal Rule of Evidence 804(a)(1), and because those portions were not sufficiently trustworthy to satisfy Yildiz’s Sixth
This conclusion does not suggest that the limited portions of Tsalevich and Tereshonok’s allocutions that were admitted - the actual pleas of “guilty” to the conspiracy charges - were not trustworthy. We have repeatedly found that guilty plea allocutions contain “particularized guarantees of trustworthiness” sufficient to satisfy the Sixth Amendment. See United States v. Petrillo, 237 F.3d 119, 122 (2d Cir. 2000) (internal quotation marks omitted); see also United States v. Moskowitz, 215 F.3d 265, 268-69 (2d Cir. 2000) (per curiam); United States v. Gallego, 191 F.3d 156, 166-68 (2d Cir. 1999). Tsalevich and Tereshonok’s statements under oath that they were guilty of the charged conspiracy, which exposed each of them to imprisonment for more than a year under the Sentencing Guidelines, and which the district court followed with a limiting instruction, complied with those precedents. See also United States v. Scopo, 861 F.2d 339, 348 (2d Cir. 1988) (holding that a guilty plea was a statement against penal interest even where the defendant served no prison time as a result). Moreover, we do not perceive a basis for thinking that Tsalevich and Tereshonok perjured themselves when they admitted guilt merely because the district court sustained a blanket invocation of the Fifth Amendment to questions about their allocutions. The record makes clear that the district court thought that answering even those questions might result in a waiver of the privilege as to more incriminating questions. See Tr. at 32-33 (Jan. 8, 2001) (“I don’t think the fact that on the advice of counsel Mr. Tereshonok declined to answer your [questions concerning his] plea allocution, so to speak, renders his plea in any way invalid.”). Tsalevich and Tereshonok did not impugn the truthfulness of their pleas by invoking the Fifth Amendment.
As to the admission of Yildiz’s statements as relayed through an out-of-court translator to the witness Alexander Spitchenko, Yildiz has failed to identify any motive for the translator to mislead or any other reason not to trust the translation. In light of the evidence corroborating the translation, we see no abuse of discretion. See United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991); United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 1989); United States v. Da Silva, 725 F.2d 828, 831-32 (2d Cir. 1983); United States v. Santana, 503 F.2d 710, 717 (2d Cir. 1974).
Finally, Yildiz argues that the district court “committed a legal error in deciding not to consider whether to downwardly depart based on the combination of factors presented to it by [his counsel].” We disagree. At the beginning of oral argument the district court indicated that it construed the departure motion “not so much as a motion for seven separate departures but a motion for departure based on a number of grounds added together” (to which counsel agreed), and, after evaluating the grounds, the court concluded, “I really don’t find an honest basis for departing downwardly on the grounds advanced very artfully and very carefully by Mr. Lewis.” The fact that the district court evaluated each factor individually is to its credit, and it does not in any way support the inference that the district court’s refusal to depart was “due to an erroneous interpretation of law, or an erroneous view of the extent of its departure authority.” United States v. Aponte, 235 F.3d 802, 803 (2d Cir. 2000) (per curiam) (internal quotation marks omitted).
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- United States v. Fuat YILDIZ, also known as Frankie, also known as Frank Lnu
- Cited By
- 1 case
- Status
- Published