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United States v. Tantchev

United States Court of Appeals, Seventh Circuit

February 21, 2019

United States of America, Plaintiff-Appellee,
v.
Nikolay Tantchev and Batmagnai Chogsom, Defendants-Appellants.

          Argued November 1, 2018

          Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cr-174 - Amy J. St. Eve, Judge.

          Before WOOD, Chief Judge, and Manion and Rovner, Circuit Judges.

         

          Manion, Circuit Judge.

         After a six-day trial involving twenty-nine witnesses, a federal jury convicted Nikolay Tantchev of exporting and attempting to export stolen cars, submitting false documents to customs officials, and structuring financial transactions to avoid federal reporting requirements. That same jury acquitted Tantchev's co-defendant, Batmagnai Chogsom, of charges related to the stolen cars and false documents, but it convicted Chogsom of making a false statement to an IRS agent. The district court sentenced Tantchev to 40 months' imprisonment and Chogsom to 3 years' probation.

         Both defendants appeal their convictions. Tantchev alleges several errors by the district court at trial, and Chogsom challenges the sufficiency of the evidence against him. We affirm the convictions.

         I.

         Tantchev, a native of Bulgaria, owned a trucking business that operated out of a warehouse in Chicago. Chogsom, a Mongolian immigrant, worked for Tantchev.

         In 2008, Tantchev began shipping containers of goods to Bulgaria using a company called Atlantic Express. Seeing an opportunity, Tantchev started a small side-business arranging shipping containers from Atlantic Express for others. Tantchev would order containers from Atlantic Express at a discount and charge a premium for acting as a middle man. Though he had the containers delivered to his Chicago warehouse, this was a separate operation from his normal trucking business. Through Chogsom, members of Chicago's Mongolian community began coming to Tantchev to set up shipments to Mongolia. These shipments often included vehicles.

         According to Tantchev, his involvement with these international shipments was minimal. A customer looking to ship something would approach Tantchev or Chogsom. Tantchev would then order a shipping container from Atlantic Express, which would drop it off at Tantchev's warehouse. The customer would come to the warehouse and load the container himself, and the container would be sealed. Atlantic Express would then pick up the loaded container from the warehouse. Tantchev would fill out the appropriate papers based on what his customers told him and send the papers and any other documents to Atlantic Express to forward to United States Customs and Border Protection (CBP).

         In the early part of 2011, CBP discovered three of Tantchev's shipments to Mongolia contained stolen cars.[1] Additionally, the documentation Tantchev had submitted did not accurately reflect the contents of the containers. One container was supposed to hold a Honda, but instead contained a stolen BMW. Two others were declared as containing mining machinery, but they actually contained a stolen Mercedes and two stolen Lexuses.

         Also in early 2011, Tantchev began making large deposits into seven bank accounts at Fifth Third Bank and Chase Bank. Two of the accounts were in Tantchev's name, one belonged to his father, and the other four were in the names of Kosa Bonev, Otgonbayar Jigmidsambuu, Jianmei Li, and Yu Li, respectively. No single deposit was ever over $10, 000, the maximum amount that does not trigger a federal reporting requirement. Despite no single deposit ever breaching that $10, 000 ceiling-which Tantchev knew to be the reporting threshold-Tantchev managed to deposit $574, 965 into those accounts in less than two months, from March 14 to May 4, 2011. Then, despite the fact that some of the account holders were not even in the United States at the time, from March 16 to May 5, 2011, wire transfers were sent from the accounts of Bonev, Jigmidsambuu, Jianmei Li, and Yu Li in the total amount of $552, 090 to twenty-two different accounts located in Sofia, Bulgaria.[2] This activity prompted Fifth Third Bank to report Tantchev for suspected criminal activity.

         The IRS began an investigation after receiving the report from Fifth Third Bank. As part of that investigation, Agent Jason Gibson set out to find Jianmei Li, the listed owner of one of the Fifth Third bank accounts. Through the Illinois Secretary of State, Agent Gibson acquired the information and a photo from an Illinois identification card in that name. After the address on the ID proved to be a bust, he and another agent went to the address connected with the bank account. At that address, he spoke with Gerelt Dashdorj, the nephew of defendant Chogsom. After talking with Dashdorj and showing him the picture from the ID, Agent Gibson believed Jianmei Li was Burmaa Chogsom, defendant Chogsom's sister.

         Agent Gibson then went to interview defendant Chogsom. He showed Chogsom the photo from the Illinois ID and asked him if he recognized the woman. Chogsom replied it was "Jianmei Li/' a woman with whom he used to work. Agent Gibson asked Chogsom if he had a sister named Burmaa. Chogsom answered he did, and that she was in Mongolia. Agent Gibson never asked if the woman in the photo was Chogsom's sister Burmaa.

         As it turns out, the woman in the photo was indeed Burmaa Chogsom. She had acquired the Illinois ID in the name of Jianmei Li using a fraudulent Chinese passport and a Social Security number originally issued to a worker in Saipan. She had returned to Mongolia in 2010.

         A federal grand jury issued an indictment against Tantchev and Chogsom on March 16, 2016. The indictment charged Tantchev with three counts of exporting and attempting to export stolen vehicles, two counts of submitting false writings to CBP, and one count of structuring deposits to avoid federal reporting requirements. The indictment charged Chogsom with two counts relating to the export of stolen vehicles, one count of submitting false writings, and one count of lying to an IRS agent based on his identifying the woman in the photo as Jianmei Li rather than as Burmaa Chogsom.

         The case proceeded to a jury trial. The jury heard testimony from twenty-seven witnesses for the government and from both defendants. The jury convicted Tantchev of all charges leveled against him. It convicted Chogsom of lying to the IRS agents and acquitted him of the remaining charges. Both defendants made post-trial motions for judgment of acquittal, and Tantchev moved for a new trial. The district court denied all three motions. The defendants appeal.

         II.

         Tantchev appeals the denial of his motion for a new trial, alleging multiple errors. Chogsom appeals the denial of his motion for judgment of acquittal. As these two defendants present discrete issues, we will address them separately.

         A.

         We begin with Chogsom's appeal of the denial of his motion for judgment of acquittal. "We review a district court's denial of a motion for judgment of acquittal de novo in the light most favorable to the prosecution." United States v. Giovenco, 773 F.3d 866, 869 (7th Cir. 2014). We will affirm "[i]f any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. It is the defendant's task to convince us of the insufficiency of the evidence, a burden we have called "heavy, indeed, nearly insurmountable." United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010).

         The indictment charged Chogsom with violating 18 U.S.C. § 1001(a)(2), which makes it a crime to "knowingly and willfully [make] a materially false statement in connection with a matter within the jurisdiction of a federal agency." United States v. Rahman, 805 F.3d 822, 836 (7th Cir. 2015). The indictment read: "[I]n response to the agents' question as to whether CHOGSOM recognized the woman in the photo they displayed, CHOGSOM responded that the person depicted in the photo was 'Jianmei Li'... ."[3]

         Chogsom admits to identifying the woman as Jianmei Li. He admits he knew the woman in the photo was his sister Burmaa. He even admits he gave the name "Jianmei Li" because he wanted to protect his sister from immigration problems. Nevertheless, Chogsom argues the jury should not have convicted him because his answer was not literally false. Chogsom maintains his sister was using the name Jianmei Li in the United States. It was her American alias, like a "street name." Because Burmaa was using the name Jianmei Li in the United States, Chogsom maintains his answer that the woman in the photo was Jianmei Li was literally true, and thus he did not "make a false statement" in violation of the statute.

         A statement that is literally true cannot support a conviction under § 1001(a)(2), "even if a defendant gives a misleading or nonresponsive answer." Rahman, 805 F.3d at 838. For example, in Bronston v. United States, 409 U.S. 352 (1973), [4]the government charged Samuel Bronston with committing perjury at a bankruptcy hearing. An attorney for a creditor asked Bronston, the president of the bankrupt company, if Bronston had ever had an account at a Swiss bank. Bronston answered, "The company had an account there for about six months, in Zurich." He did not mention his former personal account at the International Credit Bank in Geneva. However, it was undisputed that his statement concerning the company's account was true. Id. at 353-54.

         And that made all the difference to the Supreme Court, which overturned Bronston's conviction under the perjury statute. Id. at 362. Though his answer gave "an implication ... that there was never a personal bank account ... [t]he [perjury] statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true." Id. at 357-58. The Court stated, "The burden is on the questioner to pin the witness down to the specific object of the questioner's inquiry." Id. at 360. If the questioner was not satisfied with Bronston's non-responsive answer, he should have pressed the issue with his questions. Id. at 362.

         So sometimes, by cleverness and quick thinking, a defendant can avoid directly answering a tough question without exposing himself to conviction for doing so. But sometimes not. In United States v. Gorman,613 F.3d 711 (7th Cir. 2010), Jamarkus Gorman was called to testify before a grand jury. One of the grand jurors asked him, "Mr. Gorman, did you have a Bentley in your garage at [your condominium complex]?" Gorman replied, "No." Only, there had been a Bentley in the garage. The vehicle belonged to Gorman's cousin, but Gorman had given a condominium employee the impression it belonged to him and eventually orchestrated its removal ...


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