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.
WOOD, Chief Judge, and Manion and Rovner, Circuit Judges.
Manion, Circuit Judge.
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'
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
a native of Bulgaria, owned a trucking business that operated
out of a warehouse in Chicago. Chogsom, a Mongolian
immigrant, worked for Tantchev.
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
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).
early part of 2011, CBP discovered three of Tantchev's
shipments to Mongolia contained stolen cars. 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
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. This activity prompted Fifth Third Bank to
report Tantchev for suspected criminal activity.
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.
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
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.
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.
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.
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.
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).
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'...
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.
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), 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.
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.
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 ...