The United States Court of Appeals for the Second Circuit addressed the appeals of six defendants—Nikolai Nadirashvili, Levan Chvelidze, Dimitriy Vorobeychik, Ioseb Kharabadze, Christiaan Dewet Spies, and Artur Solomonyan—following their convictions for weapons trafficking offenses in the Southern District of New York. The key issues examined included the sufficiency of evidence for the convictions, the constitutionality of a specific statute as applied to one defendant, and the sentencing calculations for another. The court affirmed the convictions for all defendants, determining the evidence was sufficient and rejecting arguments related to vagueness. However, it found that the district court misapplied the standard of proof in enhancing Solomonyan’s sentencing guidelines, resulting in the vacating of his sentence and a remand for resentencing. All other aspects of the district court’s decisions were affirmed.
From February 2004 to March 2005, a government investigation targeted a suspected weapons trafficking ring, utilizing confidential source Kelly Davis as an intermediary for firearms and explosives buyers. At the government's direction, Davis re-engaged with an individual named Spies regarding the procurement of "Russian made" items. Spies facilitated contact between Davis and Solomonyan, who then reached out to Kharabadze. Wiretaps recorded conversations indicating that Kharabadze faced delays in negotiations due to government forces relocating, though later communications suggested a deal was almost finalized.
In May 2004, discussions among Davis, Spies, and Solomonyan focused on acquiring grenades, warheads, and missiles, with Solomonyan requesting an order list from Davis. Subsequently, Solomonyan asked Kharabadze for a price list, which Kharabadze agreed to prepare. On the day of a meeting with Davis and Spies, Solomonyan visited Kharabadze and later handed Davis a note with critical details.
Further meetings detailed weapon specifications, shipping methods, and prices. Solomonyan communicated about military exercises in Armenia and merchandise movement from Armenia to the U.S. By January 2005, Davis informed Solomonyan and Spies of an impending deadline, hinting at pressure to finalize transactions, while also mentioning green cards for them contingent on receiving the weapons.
Over the following weeks, Solomonyan sourced digital images of available weaponry. In March 2005, during a meeting to review these images, law enforcement arrested Solomonyan and Spies. The government also directed Davis to pursue machine guns and semi-automatic rifles within the U.S. In July 2004, discussions between Solomonyan and Spies included code language for machine guns, and on September 11, Davis provided funds to Solomonyan for gun purchases. Solomonyan later sought assistance from Nadirashvili regarding acquiring vehicles, indicating ongoing illegal activities.
Nadirashvili contacted Chvelidze regarding firearms, initially causing confusion as Chvelidze thought they were discussing cars. Chvelidze informed Nadirashvili he could not provide any firearms that day but asked him to place an order if needed. Nadirashvili relayed this to Solomonyan, who then verified with Chvelidze the next day. Chvelidze committed to assist, but ultimately, neither Nadirashvili nor Chvelidze secured firearms for Solomonyan.
Solomonyan later communicated with Vorobeychik and was advised to contact Allah McQueen. Despite initial misunderstandings about terminology, McQueen eventually recognized the conversation was about firearms. Over the subsequent week, Solomonyan and McQueen discussed a deal using coded language, referencing "dogs," "puppies," and "an AK." Vorobeychik expressed skepticism about obtaining firearms, to which Solomonyan indicated he only needed two pieces. Vorobeychik later informed law enforcement that "they" referred to McQueen. In October, Vorobeychik and Solomonyan discussed expanding their operations with McQueen, who eventually provided three firearms, while Solomonyan and Spies acquired five additional firearms independently.
The jury found Solomonyan, Spies, and Kharabadze guilty of conspiracy to traffic in foreign defense articles and related firearms trafficking offenses. Solomonyan, Spies, Vorobeychik, Nadirashvili, and Chvelidze were convicted of domestic firearms trafficking conspiracy and associated charges. Solomonyan and Spies faced additional charges for illegal machine gun transfers and possession of firearms as illegal aliens.
Sentences were imposed as follows: Nadirashvili received 41 months, Chvelidze 34 months, Vorobeychik 33 months, Kharabadze 108 months, Spies 240 months, and Solomonyan 264 months. The court determined Solomonyan's base offense level included enhancements for a conspiracy involving a destructive device and a significant number of firearms, resulting in a total of 25 offense levels.
Appellants Nadirashvili, Chvelidze, and Vorobeychik contest the sufficiency of evidence regarding their convictions for aiding and abetting domestic firearms trafficking under 18 U.S.C. § 922(a)(2)(A). Vorobeychik asserts he did not knowingly assist in trafficking, claiming ignorance of Solomonyan's intentions when he introduced him to McQueen, who facilitated the purchase of three firearms. Nadirashvili and Chvelidze acknowledge awareness of Solomonyan's attempt at a specific weapons transaction but deny knowledge of his involvement in a firearms business. They argue that the evidence did not demonstrate their intent to aid Solomonyan in acquiring weapons. Solomonyan and Spies support these sufficiency challenges without presenting distinct arguments.
Under 18 U.S.C. § 922(a)(1)(A), it is illegal for individuals not licensed as dealers to engage in firearms dealing for profit. The statute defines "engaged in the business" as dedicating time and effort to the trade of firearms with the primary goal of profit from regular transactions, excluding occasional sales for personal use. The government must only demonstrate that the defendant presents themselves as a source for firearms, without needing to prove firearms dealing as their primary business or a specific number of sales.
The court reviews sufficiency claims de novo, requiring that if any rational jury could find the essential elements of the crime proven beyond a reasonable doubt, the verdict must be upheld. Evidence against Solomonyan and Spies indicates they actively communicated and collaborated to procure firearms for Davis, successfully obtaining eight guns. This evidence was deemed sufficient for a jury to conclude that they unlawfully engaged in firearms dealing under the statute.
Vorobeychik's defense is rejected as the evidence presented showed he knowingly aided Solomonyan in a firearms trafficking scheme. Recorded telephone conversations indicated Vorobeychik facilitated communication between Solomonyan and McQueen regarding the acquisition of firearms. Vorobeychik's inquiries about McQueen's ability to deliver firearms, along with discussions of profit from their collaboration, further demonstrated his involvement. The jury had sufficient grounds to conclude that Vorobeychik was aware of the illegal nature of their dealings.
Regarding Nadirashvili and Chvelidze, their claim of ignorance about the extent of Solomonyan's operations was also deemed insufficient. The law requires awareness that a person is engaged in a business involving repetitive transactions, but the prosecution needed only to establish that they recognized Solomonyan as a source of firearms. Evidence showed that Nadirashvili was informed of customer transactions involving firearms and negotiated assistance with Solomonyan. Both he and Chvelidze expressed willingness to procure firearms, indicating their complicity in the trafficking activities. Hence, the evidence supported their convictions as well.
Nadirashvili and Chvelidze's convictions were affirmed based on the evidence that indicated their awareness of Solomonyan's involvement in more than a one-time firearm transaction. The standard of review requires only that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Solomonyan's familiarity with firearms and coded language, along with suggestions of contacts with a firearms dealer, support the inference that he was presenting himself as a consistent source rather than just fulfilling a single order.
Kharabadze was convicted under 22 U.S.C. § 2778(b)(1)(A)(ii) for conspiring to broker foreign defense articles and aiding Solomonyan and Spies in their brokering offense. The statute prohibits engaging in brokering activities for defense articles, defined as negotiating contracts or facilitating the transfer of such articles for compensation. Kharabadze challenged his conviction on grounds of vagueness, arguing that the term "facilitates" was ambiguous and that he was unaware that providing information about defense articles fell under this statute.
The void-for-vagueness doctrine requires that penal statutes clearly define prohibited conduct. However, an as-applied challenge fails if the individual's actions are clearly proscribed. Kharabadze's provision of a price list for military weapons, knowing it would assist Solomonyan in negotiations, was determined to facilitate the importation of defense articles, thereby rejecting his challenge to the constitutionality of his conviction under Section 2778.
The court found that the district court incorrectly applied two offense level enhancements under Section 2K2.1(b) of the Sentencing Guidelines for Solomonyan’s conspiracy involving over 200 weapons and a destructive device. The enhancements were based on a preponderance of the evidence rather than the required standard of reasonable certainty, as mandated by Section 2X1.1(a) when a conspiracy is not covered by a specific guideline. While the district court correctly set the base offense level at 20, it should have applied the reasonable certainty standard for the offense level adjustments. The sentence was vacated, and the case was remanded for resentencing, with instructions for the district court to recalculate the offense level for the conspiracy convictions using the appropriate standard. The court affirmed the other convictions and sentences while finding the remaining arguments presented by the appellants meritless.
