United States v. David Podlog Alexander Moysif Yelena Moysif Joseph Forzano Lyudmila Forzano Michael Cardone Ronald Petrino Gennady Chernyakhovsky Adolf Sirotnikov Aron Roizis Yefim Kats Yura Popov, Calogero Badalamenti John Romano Giuseppe Genna and Sergey Mogorichev, Also Known as "Sergio", Also Known as "Seryi"

Citations: 35 F.3d 699; 1994 U.S. App. LEXIS 25552Docket: 1506

Court: Court of Appeals for the Second Circuit; September 13, 1994; Federal Appellate Court

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Appellants Calogero Badalamenti, John Romano, Giuseppe Genna, and Sergey Mogorichev are appealing their convictions and sentences for conspiring to distribute and possess heroin under 21 U.S.C. § 846. The appeals arise from convictions and sentences issued on various dates in late 1993 by the U.S. District Court for the Southern District of New York. Badalamenti received a 135-month sentence, Romano 78 months, Mogorichev 63 months, and Genna 120 months, all with five years of supervised release.

The case involved a heroin smuggling operation organized by defendant Yossif Roizis in 1991, who arranged for Alex Moysif to smuggle two kilograms of heroin from Poland to the U.S. Moysif successfully completed two smuggling trips and later began selling heroin in New York City with Yefim Kats. On April 16, 1991, they sold 230 grams of heroin to a confidential informant and a DEA agent. Moysif subsequently paid Roizis $25,000 for the heroin. Additional transactions and discussions regarding future purchases occurred between Moysif and the DEA agents throughout 1991.

The court has vacated Genna's sentence and remanded for resentencing, while affirming the judgments for the other appellants.

In the summer of 1991, Moysif sought to sell heroin and was directed by Joseph Forzano to contact Calogero Badalamenti, who operated Caffe Venezia in Brooklyn. In early August, Badalamenti bought one ounce of heroin for $5,000 from Moysif and introduced him to Joe Genna, who could assist in sales. Moysif later indicated he needed half a kilogram of heroin, which Podlog quoted at $50,000. Moysif, Badalamenti, and Genna arranged to purchase the heroin for $70,000. Moysif procured the heroin from Podlog, delivered it to Badalamenti, and expected timely payment.

On August 16, Badalamenti and Genna attempted to sell the heroin through John Romano at an auto-body shop, but the deal fell through after prolonged waiting. Moysif returned to Brooklyn with the heroin and pressured Badalamenti for payment. By August 18, it was clear Romano's buyer was not interested, prompting Moysif to inform Podlog, who threatened him violently. In response, Moysif threatened Genna and Badalamenti. During a meeting, Moysif negotiated a lower price of $50,000 for the heroin, with a payment plan involving $40,000 upfront and the remainder upon sale. Genna paid Moysif $10,000, but when Romano failed to deliver the remaining $20,000, Moysif sought further collection efforts from Romano.

Moysif displayed a gun to Romano, citing threats from Podlog and a need for money, leading to a $20,000 payment from Romano to Moysif, which Moysif then gave to Podlog. On August 29, 1991, Moysif sold 125 grams of heroin to Agent Cardinali for $22,500. Following this, Moysif assured Genna he could provide either 125 or 400 grams of heroin. On August 31, Moysif sold 125 grams to Genna for $17,000 after acquiring the necessary heroin. 

Subsequently, on September 2, Badalamenti expressed a need for a kilogram of heroin, prompting Moysif to contact Podlog, who initially agreed but later refused to deliver when arrangements were made. After further pleas, Podlog begrudgingly agreed, but the deal fell through due to Badalamenti's customer backing out. Moysif later contacted Mogorichev to relay the situation. 

By September 7, Badalamenti renewed requests for the kilogram, but Moysif faced refusal from Podlog. Concerned about law enforcement surveillance, Moysif fled to California, leaving Mogorichev to take over. Mogorichev communicated with Chernyakhovsky about future heroin needs and later met with Agent Cardinali, asserting he could supply heroin as Moysif had. On September 24, 1992, Romano, Genna, Mogorichev, and Badalamenti were charged with conspiring to distribute heroin under 21 U.S.C. Sec. 846.

Romano called one witness at trial, while Genna, Mogorichev, and Badalamenti presented no evidence. The jury found all four guilty. The district court sentenced each: Romano to 78 months in prison, Genna to 120 months, Mogorichev to 63 months, and Badalamenti to 135 months, each followed by a term of supervised release and a $50 assessment. Romano argued that the district court erred by not allowing a jury instruction on coercion and duress, but this claim was rejected. A defendant must provide evidence supporting all elements of a duress defense, including a lack of reasonable opportunity to escape the threatening situation. Romano's assertion that Moysif's display of a gun on August 19 constituted sufficient grounds for duress was undermined by evidence showing his involvement in drug trafficking as early as August 16. This prior conduct indicated that he was part of the conspiracy before any coercive force was allegedly applied, thus failing to meet the necessary criteria for a duress defense. The district court’s denial of the jury instruction was deemed appropriate due to the lack of sufficient evidence.

Mogorichev's challenge to the sufficiency of the evidence for his conviction is deemed without merit. A defendant bears a heavy burden when contesting evidence sufficiency, which must be assessed collectively, with all inferences favoring the prosecution. Conspiracy, often proven through circumstantial evidence due to its secretive nature, requires that the jury can reasonably infer the defendant's knowledge and involvement in the conspiracy. In this case, evidence was sufficient for a rational juror to conclude Mogorichev was part of the conspiracy. Key points include a conversation about a failed drug deal, discussions implying heroin sales involving "labels," and significant dealings with Agent Cardinali, where Mogorichev identified himself as Moysif's partner and confirmed his ability to meet heroin demands. 

In sentencing matters, Romano's appeal for a downward departure due to coercion is rejected. The refusal of such a departure is discretionary and not subject to appellate review, as established by precedent.

A district court's awareness of its authority to grant a departure from sentencing guidelines is subject to appellate review. In the case at hand, Romano contended that the district court was unaware of its authority to grant a departure; however, the record indicates that the court understood its authority but found no justification for a departure, explicitly stating that Romano was already involved in the conspiracy before any claimed coercion occurred. Consequently, the appellate review declined to address this aspect of Romano's appeal.

Mogorichev argued against the district court's finding that he could reasonably foresee the conspiracy involving over one hundred grams of heroin, leading to his sixty-three month sentence, the minimum under the Sentencing Guidelines. The court held that it could consider all transactions known or foreseeable to Mogorichev, including those predating his involvement, and found that he was aware of significant narcotics transactions, thus affirming the sentence without clear error.

Badalamenti contested the district court's finding that his relevant conduct involved slightly more than one-and-one-half kilograms of heroin, specifically disputing the attribution of a one-kilogram purchase attempt. He acknowledged involvement in smaller purchases but challenged the larger amount. The appellate review focused solely on whether the district court erred in attributing this quantity to him.

On September 2, 1991, Badalamenti informed Moysif about a buyer for one kilogram of heroin, leading Moysif to arrange for the drug from Podlog. By September 5, Moysif confirmed the availability of the heroin, but Badalamenti later stated the buyer was no longer interested. Despite this, Badalamenti continued to request the heroin until September 14, when it became clear Moysif could not fulfill the order. The district court found no clear error in including the kilogram in assessing Badalamenti’s relevant conduct despite the deal not being finalized, referencing precedent that supports counting negotiated amounts (U.S.S.G. Sec. 2D1.1, Application Note 12).

Genna challenged his ten-year statutory minimum sentence under 21 U.S.C. Sec. 841(b), arguing that only 625 grams of heroin should be attributed to him, resulting in a lower offense level. The district court attributed 900 grams directly to him and determined he was reasonably aware of a conspiracy involving over one kilogram, triggering the minimum sentence. However, it did not assign him an offense level of 32 for the larger quantity.

Genna contested the attribution of 400 grams related to an August 31 purchase from Moysif, claiming only the 125 grams actually purchased should count. He cited Application Note 12, which states that negotiated weights in uncompleted transactions can be used for sentencing. The review indicated that the district court erred in attributing the additional 400 grams, confirming that, based on the plain language of Application Note 12, only 625 grams (500 grams plus 125 grams) should be considered for Genna’s relevant conduct.

In United States v. Alaga, the court clarified that the interpretation of agreements in drug transactions should rely on the plain language and completed nature of the transactions. On August 30, Genna informed Moysif he needed either 125 or 400 grams of heroin, to which Moysif responded that obtaining the heroin was not an issue, merely needing to know the quantity and timing. Genna subsequently confirmed the need for 125 grams, which he then purchased for $17,000 the following day, completing the transaction. The court emphasized that the concept of "weight under negotiation" applies only to incomplete transactions. 

In United States v. Tejada, the court ruled that the amount agreed upon for a drug transaction, even if not fully delivered, should determine the offense level, illustrating that the guidelines prioritize the final agreement over the actual delivery amount. Similarly, in United States v. Moon, the agreed-upon amount controlled sentencing regardless of discussions around larger quantities. The court concluded that only the 125 grams of heroin should be attributed to Genna for the transaction. 

Moreover, the district court's finding that Genna should have foreseen involvement in a larger conspiracy was deemed clearly erroneous, as he was only directly involved in two transactions. The court reiterated that a defendant's responsibility includes acts committed by them and those by co-conspirators that were foreseeable and in furtherance of the conspiracy, aligning with the Guidelines on relevant conduct.

Conduct that falls outside the defendant's agreement or was not reasonably foreseeable in relation to the agreed criminal activity cannot be used to determine the defendant's offense level, as established in U.S.S.G. Sec. 1B1.3, Application Note 1. In this case, Genna's agreements pertained only to 625 grams of heroin, with no evidence presented that he was aware or should have been aware of any additional heroin transactions. Consequently, the court vacated Genna's sentence and remanded the case for resentencing based on the Guidelines applicable to the 625 grams of heroin. The district court's judgment was affirmed in all other respects. Additionally, Calogero Badalamenti submitted his argument to the Court, with Hon. Robert L. Carter presiding. Twelve other defendants were charged under this count, with Counts Two and Three addressing Moysif and Kats for distributing and possessing heroin with intent to distribute, in violation of 21 U.S.C. Secs. 812, 841(a, b).