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U.S. v. Ochakovsky

United States District Court, S.D. New York
Aug 14, 2008
98 Cr. 1368 (JFK) (S.D.N.Y. Aug. 14, 2008)

Opinion

98 Cr. 1368 (JFK).

August 14, 2008


MEMORANDUM OPINION and ORDER


Before the Court is the motion of Defendant Alexander Ochakovsky ("Defendant" or "Ochakovsky") to (i) have certain property returned to him by the government, pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure and (ii) modify the conditions of his supervised release to permit him to travel to Russia. For the reasons that follow, the motion is denied.

(I) Motion for Return of Property

Ochavosky has asked that the government return "personal effects," including his passport, naturalization papers, and other documents, that were seized on December 9, 1998 from his Staten Island apartment pursuant to search warrants. The government represents, and the Defendant does not dispute, that the property at issue either has been returned to Ochakovsky or was destroyed by the government during routine evidence destruction procedures. Accordingly, because it is undiputed that the government is not in possession of any of the property at issue, the application for the return of property is dismissed as moot.

(II) Motion for Modification of Conditions of Supervised Release

As a condition of his supervised release, Ochakovsky is not permitted to travel abroad. Ochavosky now requests that the restriction be lifted to allow him to travel to Russia for the dual purpose of conducting business on behalf of his new employer and visiting his wife. The Defendant represents that his supervising officer at the Probation Office, Kathleen Slevin, does not oppose the proposed modification and has "also indicated that the Defendant is [sic] full compliance and has done everything asked of him by United States Probation Department." (Aff. of Def. Counsel ¶ 4.) The government objects to the lifting of travel restrictions. In its opposition letter, the government does not expressly state the ground of its objection, apart from noting that the Defendant pleaded guilty to participating in a wide-ranging, five-year money laundering conspiracy with Russian co-conspirators, involving "the transfer of millions of dollars of purported narcotics proceeds." (Gov't Letter, Jan. 22, 2008, at 1.)

Under 18 U.S.C. § 3583(e)(2), a court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). . . . modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification, of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision.
18 U.S.C. § 3583(e)(2). A court may modify the conditions of supervised release "only when general punishment goals would be better served by a modification." United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997). In making its determination, the court need not expressly consider each factor in section 3553(a) but must at least make "a statement that [it] has considered the statutory factors." United States v. Gelb, 944 F.2d 52, 56-57 (2d Cir. 1991).

The defense argues that a lifting of the travel restrictions comports with certain relevant factors of section 3553(a). Specifically, the defense notes that this is Ochakovsky's first conviction, and that therefore he is "not a hardened criminal where persistent supervised release and intense travel restrictions are necessary to protect the public." (Aff. of Def. Counsel ¶ 16.) The defense also urges that the proposed modification will help Ochakovsky to earn a living and thus serves the goal of rehabilitation. In support of this, the defense has submitted a letter sent from Ochavosky's new employer, Innovative Choice Group, Inc., to Probation Officer Slevin, which states that Ochavosky's position as a sales and marketing representative will require him to travel overseas.

In this case, I find that the requested modification would not serve the general goals of punishment. Although it may be true, as the defense states, that Ochakovsky is not a "hardened criminal," he participated in a complex, long-lasting international scheme with Russian associates to launder millions of dollars in drug proceeds. It is not at all clear that allowing Ochakovsky to travel to Russia prior to the expiration of his term of supervised release would better serve the goal of protecting the public than would maintaining the travel restrictions. Further, while the Court is sympathetic to Ochakovsky's efforts to secure lucrative employment and visit his wife, these factors are not sufficiently compelling to warrant a lifting of the travel restrictions. As the defense's submissions make clear, Ochakovsky's continued employment is not absolutely conditioned on the lifting of his travel restrictions, and his wife intends on moving soon to the United States to join him. In any event, the Probation Office has informed the Court that Ochakovsky's term of supervised release will expire on October 8, 2008, less than two months after the entry of this Order.

Accordingly, after considering the parties' submissions and the relevant factors set forth in section 3553(a), I find that the goals of punishment are not best served at this time by a lifting of the travel restrictions.

CONCLUSION

For the reasons set forth above, Defendant's motion for the return of property is DISMISSED as moot and the motion for modification of the conditions of supervised release is DENIED.

SO ORDERED.


Summaries of

U.S. v. Ochakovsky

United States District Court, S.D. New York
Aug 14, 2008
98 Cr. 1368 (JFK) (S.D.N.Y. Aug. 14, 2008)
Case details for

U.S. v. Ochakovsky

Case Details

Full title:UNITED STATES OF AMERICA, v. ALEXANDER OCHAKOVSKY, Defendant

Court:United States District Court, S.D. New York

Date published: Aug 14, 2008

Citations

98 Cr. 1368 (JFK) (S.D.N.Y. Aug. 14, 2008)