Opinion
22-666-cr
03-08-2023
UNITED STATES OF AMERICA, Appellee, v. ANDREY KUKUSHKIN, Defendant-Appellant.
Appearing for Appellant: Celeste L.M. Koeleveld, Clifford Chance U.S. LLP (Ivana Djak, Alexandra Day Coyle, on the brief), New York, NY Appearing for Appellee: Aline R. Flodr (Nicolas Roos, Hagan Scotten, Danielle R. Sassoon, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney, Southern District of New York, New York, NY
UNPUBLISHED OPINION
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 COURT'S 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 "SUMMARY ORDER"). 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 March, two thousand twenty-three.
Appeal from the United States District Court for the Southern District of New York (Oetken, J.).
Appearing for Appellant:
Celeste L.M. Koeleveld, Clifford Chance U.S. LLP (Ivana Djak, Alexandra Day Coyle, on the brief), New York, NY
Appearing for Appellee:
Aline R. Flodr (Nicolas Roos, Hagan Scotten, Danielle R. Sassoon, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney, Southern District of New York, New York, NY
Present: ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR., ALISON J. NATHAN, Circuit Judges.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Andrey Kukushkin appeals from the March 15, 2022 judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York (Oetken, J.), at which he was found guilty of conspiring to funnel over $25,000 from a foreign national to U.S. political campaigns under other people's names, and aiding and abetting others to do the same, in violation of 52 U.S.C. §§ 30109, 30121, and 30122, and 18 U.S.C. §§ 2 and 371. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
A. Sufficiency of the evidence
Kukushkin raises a sufficiency challenge with respect to both the conspiracy and the aiding and abetting counts of conviction. We find ample evidence in the record to support the convictions. As to the conspiracy count, the evidence showed that Kukushkin repeatedly communicated with two co-conspirators who were responsible for making the illegal political donations, Lev Parnas and Igor Fruman. In those communications, Kukushkin explained that the foreign national at the center of the conspiracy, Andrey Muraviev, agreed to infuse $500,000 to cover the donations made by Parnas and Fruman - a sum that later increased to $1 million. Kukushkin also confirmed that some of Muraviev's money was transmitted to a political campaign in Nevada. And in yet other messages admitted into evidence, Kukushkin referred to Muraviev's money as "donation funds," App'x at 160, as "donations from us," App'x at 203, and as "cover[ing] all the [political] contributions as planned," App'x at 189. To conceal the foreign source of the donation funds, moreover, Kukushkin admonished Parnas and Fruman that: "You are the one[s] issuing [the politicians] the checks NOT me or [Muraviev]." App'x at 202. These and other messages admitted at trial were sufficient to demonstrate that Kukushkin agreed to participate in the conspiracy and facilitated transfers of money from Muraviev to U.S. nationals, who in turn used the funds to donate to U.S. political campaigns on Muraviev's behalf.
Furthermore, a reasonable jury could conclude that Kukushkin acted willfully, with knowledge that some part of his course of conduct was unlawful. Kukushkin forwarded a Daily Beast article which explained that using a "conduit" to "mask the actual sources of . . . political contributions" is illegal. App'x 136-37. That article identified Global Energy as the conduit-the very entity that Kukushkin said Muraviev's money was wired to "in order to cover all the donations whatsoever." App'x 202. These messages combined with the available inference that Kukushkin read the article and understood the illegality of the scheme support the jury's verdict as to the willfulness of Kukushkin's conduct.
Kukushkin argues that the transfers simply reimbursed U.S. nationals who made political donations and that they were not direct donations to political campaigns. Even if that view were supported by the record, 52 U.S.C. § 30121 prohibits foreign nationals from "directly or indirectly" donating to U.S. political campaigns. 52 U.S.C. § 30121(a)(1) (emphasis added). Reimbursing a political donation constitutes an indirect donation in violation of the statute. For the same reason, Kukushkin does not escape criminal liability merely because some of Muraviev's money was repurposed to pay outstanding credit card bills. Liability attaches so long as Kukushkin knowingly and willfully facilitated the secret transfer of $25,000 or more to be donated to U.S. political campaigns on Muraviev's behalf. For these reasons, we see no error in the district court's denial of Kukushkin's post-trial motions for acquittal and a new trial.
B. Motion to sever
Claiming a "significant disparity" of proof between him and Parnas, Kukushkin next argues that the district court erred by denying his pre-trial motion to sever his trial from Parnas's under Federal Rule of Criminal Procedure 14, except as to one count involving a separate wire fraud scheme. We disagree and neither identify an abuse of discretion in the district court's decision nor conclude that Kukushkin was "denied a fair trial" as a result of being tried alongside Parnas. United States v. Scarpa, 913 F.2d 993, 1014-15 (2d Cir. 1990). "[Differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." Id. at 1015 (internal quotation marks omitted). And, as discussed above, the record contains compelling evidence of Kukushkin's guilt that undermines any claim that Kukushkin was "denied a fair trial." Id.
Kukushkin also challenges the district court's decision to sever the count involving this separate scheme. Because we agree with the district court that there is "relatively little overlap" between the donations scheme and the wire fraud scheme, United States v. Parnas, No. 19-CR-725 (JPO), 2021 WL 2981567, at *2 (S.D.N.Y. July 14, 2021), we find no abuse of discretion in its decision to sever.
Kukushkin also argues that the joint trial hampered his ability to present an "antagonistic" defense that Parnas defrauded him. A defendant satisfies his burden of showing "substantial prejudice" under an antagonistic defense theory "only if it can be said that the jury, in order to believe the core of [the] testimony offered on [his] behalf . . . must necessarily disbelieve the testimony offered on behalf of his co-defendant." United States v. Villegas, 899 F.2d 1324, 1346 (2d Cir. 1990) (internal quotation marks omitted). Here, even if the jury had credited Kukushkin's claim that Parnas intended to defraud him, there was still sufficient evidence for the jury to also conclude that Kukushkin intended to make illegal campaign contributions. "[S]ome antagonism . . . does not require severance." United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982).
C. "Russian roots" email
Kukushkin argues that the district court erred in admitting the "Russian roots" email because it was a privileged attorney-client communication. Assuming without deciding that the crime-fraud exception does not apply, we affirm the district court's decision to deny Kukushkin's motion to suppress the email substantially for the reasons set forth in its order of June 29, 2021, which was unsealed on August 1, 2022, and in which we identify no clear error of fact or of law.
In particular, we see no error in the district court's conclusion that the email is not a privileged attorney-client communication because Kukushkin failed to establish a separate attorney-client relationship with anyone mentioned in the email and "[i]n any event, . . . the primary purpose of the . . . email was not a bona fide request for legal advice." Dkt. 345, at 6; see Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015).
We have considered Kukushkin's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of conviction is AFFIRMED.