13‐3813‐cr (L) United States v. Pouryan, Orbach

13‐3813‐cr (L) United States v. Pouryan, Orbach

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of October, two thousand fifteen.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, EDWARD R. KORMAN, Senior District Judge.*

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UNITED STATES OF AMERICA, Appellee, v. 13‐3813(Lead), 13‐3911(Con), 14‐166 (Con) ALWAR POURYAN, aka Sealed Defendant 6, aka Allan, aka Alberto, ODED ORBACH, aka Jesse, aka Dedy,

Defendants‐Appellants,

MAROUN SAADE, aka Sealed Defendant 1, et al., Defendants.

* The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.

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FOR APPELLEE: CHRISTIAN R. EVERDELL, Karl Metzner, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANTS‐APPELLANTS: JOHN S. WALLENSTEIN, Law Office of John S. Wallenstein, Garden City, New York, and JAMES M. BRANDEN, Law Offices of James M. Branden, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Buchwald, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

Defendants‐appellants Alwar Pouryan and Oded Orbach appeal from

judgments entered September 26, 2013 and December 31, 2013, respectively, following a

bench trial, convicting them of providing material support to terrorists and conspiring

to acquire and transfer anti‐aircraft missiles, in violation of 18 U.S.C. §§ 2399A, 2332g,

and 3238. The district court sentenced Pouryan and Orbach each to concurrent terms of

imprisonment of fifteen and twenty‐five years. On appeal, both defendants argue that

their waiver of a jury trial was ineffective. Pouryan further argues that (1) the evidence

was insufficient to support the district courtʹs verdict and (2) the district court

impermissibly shifted the burden of proof to the defense. We assume the partiesʹ

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familiarity with the underlying facts, the procedural history of this case, and the issues

on appeal.

1. Jury Trial Waiver

We review the adequacy of a jury trial waiver de novo. United States v.

Carmenate,

(2d Cir. 2008). An effective waiver must be knowing,

voluntary, and intelligent.

While the district court is not constitutionally required to

go beyond a written waiver, we have recommended a colloquy on the record,

specifically ʺinform[ing] each defendant that a jury is composed of twelve members of

the community, that the defendant may participate in the selection of the jurors, that the

juryʹs verdict must be unanimous, and that a judge alone will decide guilt or innocence

if the defendant waives the right to a jury trial.ʺ

at 107‐08 (quoting Marone v. United

States,

(2d Cir. 1993)); Fed. R. Crim. P. 23(a).

The district court found that defendantsʹ waivers were knowing,

voluntary, and intelligent. On March 28, 2013, each defendant signed an effective

written waiver, which was reviewed by the district court during a pre‐trial conference

the same day. Further, the district court conducted a colloquy with both defendants

during the pre‐trial conference, substantially similar to our suggested colloquy in

Carmenate. We agree that these were sufficient waivers.

2. Sufficiency of the Evidence

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We review a claim of insufficient evidence de novo. United States v.

Rangolan,

(2d Cir. 2006). We examine the evidence in the light most

favorable to the government, see United States v. Jones,

(2d Cir. 2004),

and uphold a judgment of conviction if ʺany rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.ʺ United States v. Coplan,

(2d Cir. 2012) (quoting Jackson v. Virginia,

(1979)).

The evidence at trial established that Pouryan actively negotiated with

confidential sources posing as Taliban representatives to sell military‐grade weapons for

use against U.S. military forces. The government presented extensive audio and video

recordings of meetings and phone calls between Pouryan and confidential sources, as

well as electronic correspondence between defendants, showing that Pouryan was

attempting to sell weapons, including surface‐to‐air missiles. On appeal, Pouryan

argues that this evidence was insufficient to establish criminal intent, in light of his

testimony that he participated in the negotiations solely to collect information for the

United States government. We reject this argument. The district court assessed

Pouryanʹs testimony and determined it was not credible based on detailed findings

contradicting his theory, including his failure to report such information prior to his

arrest. Based on this evidence, a rational trier of fact could certainly have found the

essential elements of the crimes beyond a reasonable doubt.

3. Burden of Proof

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Finally, Pouryan argues that the district court impermissibly shifted the

burden of proof by requiring him to establish a lack of criminal intent. We disagree. As

discussed above, the district court evaluated the governmentʹs evidence and concluded

that ʺstanding alone, the recorded and documentary evidence is proof beyond a

reasonable doubt of the two charged conspiracies.ʺ App. at 1323‐24. Only after

considering the governmentʹs evidence did the district court turn to Pouryanʹs

testimony to assess his defense theory ‐‐ lack of criminal intent. The district court was

entitled to assess the credibility of Pouryanʹs testimony alongside the governmentʹs

evidence to make a factual determination on intent. See, e.g., Brown v. United States,

(1958) (where defendant ʺtakes the stand and testifies in his own defense

his credibility may be impeached and his testimony assailed like that of any other

witnessʺ); Mallette v. Scully,

(2d Cir. 1984) (stating that ʺit is the trier of

fact that weighs the evidence, determines credibility and draws inferences from historic

to ultimate factsʺ); United States v. Zambardi,

(2d Cir. 1960) (ʺThe

resolution of this conflicting testimony necessarily turned upon an assessment of

credibility and thus was a matter for the trial court sitting as trier of fact.ʺ).

Accordingly, the burden of proof was not impermissibly shifted to Pouryan.

We have reviewed defendantsʹ remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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