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Date: 02-22-2019
Case Style:
United States of America v. Nikolay Tantchev Chogsom
Case Number: 18-1200 & 18-1263
Judge: Manion
Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)
Plaintiff's Attorney: William R. Hogan, Jr. and William Patrick Novak
Defendant's Attorney: Beau B. Brindley and Michael James Thompson
Description:
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,
2 Nos. 18-1200 & 18-1263
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
Nos. 18-1200 & 18-1263 3
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
1 The parties do not dispute that the cars were stolen. All four cars
charged in the indictment were subject to liens. When authorities reported
to the creditors that the cars had been discovered on shipping
containers bound for Mongolia, the creditors reported them stolen and
recovered them.
4 Nos. 18-1200 & 18-1263
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
2 From whom all this money came and whether they are trying to get
it back are among the hollow spots in this case—questions the facts raise
in questioning minds but the parties do not litigate or answer. The government
presented evidence at trial suggesting Tantchev received
$750,000 in wire transfers from Mongolia (including several transfers labeled
“for car”), but it did not have direct evidence that was the source
of the full $574,965. Neither is there any discussion in the briefs about
whether these Mongolian buyers were unwittingly purchasing stolen
cars or were themselves part of the criminal scheme. While these questions
are ultimately immaterial because the facts we have are enough to
resolve this appeal, there is doubtless more to the story.
Nos. 18-1200 & 18-1263 5
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.
6 Nos. 18-1200 & 18-1263
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
3 The jury instructions described the charge as follows: “Chogsom is
charged … with knowingly and willfully making a false statement when
he was interviewed by agents of the [IRS] … about whether he recognized
and knew the name of a woman depicted in a photo the agents displayed
to him… .”
Nos. 18-1200 & 18-1263 7
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.
4 Bronston and United States v. Gorman, 613 F.3d 711 (7th Cir. 2010),
which we discuss below, both address prosecutions under federal perjury
statutes, not § 1001(a). But we have applied the reasoning of those
cases in the § 1001 context. Rahman, 805 F.3d at 838 (citing both Gorman
and Bronston in addressing the appeal of a conviction under 18 U.S.C. §
1001).
8 Nos. 18-1200 & 18-1263
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
from the garage so he could steal its contents. Gorman was
charged with and convicted of perjury based on his answer to
the grand jury. Id. at 714–17.
Appealing his perjury conviction, Gorman “argue[d] he
could not have perjured himself because he did not ‘have’ a
Bentley”; it was his cousin’s. Gorman argued “have” requires
ownership, not just possession. Id. at 715–16
Nos. 18-1200 & 18-1263 9
We acknowledged that Gorman’s argument, “[w]hen
stretched to its logical limit,” had “some merit.” Id. at 716. After
all, “have” has many meanings. Id. (citing Webster’s Third
New International Dictionary 1039 (Philip Babcock Gove ed., 3d
ed. 1986)). “But what [Gorman] ignore[d] is that our precedent
dictates that even when a question or answer is ambiguous,
a conviction may still be upheld if a jury has been called
upon ‘to determine that the question as the defendant understood
it was falsely answered… .’” Id. (last alteration in original)
(quoting United States v. Scop, 940 F.2d 1004, 1012 (7th Cir.
1991)). We concluded the jury at Gorman’s perjury trial was
well within its rights to find Gorman understood the grand
juror’s question as inquiring about possession, rather than
ownership, so his answer to the question as asked was knowingly
false. Id.
The instant case is much more similar to Gorman than
Bronston. Here, the IRS agents asked Chogsom to identify the
woman in the photo from the Illinois ID. He knew it was his
sister Burmaa, but he told them “Jianmei Li.”
Chogsom, like Gorman, argues he gave an acceptable answer
to an ambiguous question. And, as in Gorman, that argument
has some validity. “Who is this?” or “Do you know who
this is?” are undoubtedly ambiguous questions. And Jianmei
Li was certainly an identity for the woman named Burmaa
Chogsom—the government’s own evidence shows she had
an ID with “Jianmei Li” on it. Nevertheless, the jury was entitled
to resolve that ambiguity against Chogsom and conclude
he understood the IRS agents wanted to know Burmaa’s “actual”
name, not the alias she acquired with a fake Chinese
passport. Understood that way, Chogsom’s decision to give
her alias was not just misleading, as was the case in Bronston,
10 Nos. 18-1200 & 18-1263
but false, as in Gorman. Accordingly, we cannot say it was unreasonable
for the jury to conclude Chogsom gave a false answer
to the IRS agents’ ambiguous question.
B.
We turn now to Tantchev, who alleges four errors he believes
entitle him to a new trial. We take them in turn, noting
that we will reverse the district court’s decision to deny his
motion for a new trial only if we find an abuse of discretion.
United States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).
1.
Tantchev first contends the district court should not have
given a deliberate avoidance or “ostrich” instruction. Before
getting into the analysis, some additional background is helpful.
The government charged Tantchev with exporting and attempting
to export stolen vehicles and submitting false written
statements to CBP. Both crimes require that the defendant
acted with knowledge. See 18 U.S.C. § 553(a) (“Whoever
knowingly imports, exports or attempts to import or export—
(1) any motor vehicle…knowing the same to have been stolen…
.”); 18 U.S.C. § 1001(a) (“[W]hoever … knowingly and
willfully…(3) makes or uses any false writing or document
knowing the same to contain any materially false, fictitious,
or fraudulent statement or entry … .”). In defense, Tantchev
contested only the knowledge element of the offenses. He
maintained he did not know he was exporting stolen cars and
submitting false information to CBP.
The government requested the court give an ostrich instruction,
which is meant “to inform the jury that a person
may not escape criminal liability by pleading ignorance if he
knows or strongly suspects he is involved in criminal dealings
Nos. 18-1200 & 18-1263 11
but deliberately avoids learning more exact information
about the nature or extent of those dealings.” United States v.
Green, 648 F.3d 569, 582 (7th Cir. 2011) (internal quotation
marks omitted) (quoting United States v. Carani, 492 F.3d 867,
873 (7th Cir. 2007)). Tantchev opposed the instruction, arguing
the government had not presented sufficient evidence of
deliberate avoidance to justify it. The district court agreed
with the government and gave the instruction.
In its order addressing Tantchev’s post-trial motion for
new trial, the district court stated its conclusion that Tantchev
had “cut off his normal curiosity” by never looking into the
containers shipped from his warehouse. Specifically,
“Tantchev deliberately avoided exhibiting normal curiosity
and safety and liability-related caution as to the contents of
the shipping containers in his truck yard, especially for someone
with years of experience in the transportation industry.”
In this appeal, Tantchev continues to argue the government
did not present sufficient evidence to support the instruction.
“We review a district court’s decision to give an ostrich
instruction for abuse of discretion, and in doing so we view
the evidence in the light most favorable to the government.”
United States v. Pierotti, 777 F.3d 917, 920 (7th Cir. 2015). “An
ostrich instruction is appropriate where (1) a defendant
claims to lack guilty knowledge … and (2) the government
presents evidence from which a jury could conclude that the
defendant deliberately avoided the truth.” United States v.
Garcia, 580 F.3d 528, 537 (7th Cir. 2009). Evidence of deliberate
avoidance “can be placed into two general categories: evidence
of ‘overt physical acts,’ and evidence of ‘purely psychological
avoidance, a cutting off of one’s normal curiosity by
an effort of will.’” United States v. Carrillo, 435 F.3d 767, 780
12 Nos. 18-1200 & 18-1263
(7th Cir. 2006) (quoting United States v. Craig, 178 F.3d 891, 896
(7th Cir. 1999)).
The district court concluded Tantchev “cut off” his curiosity
by not looking in the containers, alluding to the language
of psychological avoidance. We have found psychological
avoidance where a defendant was faced with proverbial “red
flags” but did not investigate. See United States v. Pabey, 664
F.3d 1084, 1093 (7th Cir. 2011); United States v. Leahy, 464 F.3d
773, 796 (7th Cir. 2006) (“[F]ailure to ask questions that would
certainly arise from the circumstances … is evidence that
could lead a jury to determine [the defendant] deliberately
avoided learning about the [ ] scam.” (alterations in original)
(quoting Craig, 178 F.3d at 897–98)). However, we must remember
the instruction is aimed at defendants acting like fabled
ostriches who bury their heads in the sand. We do not, if
we may add to the metaphorical menagerie, require every defendant
to act like Curious George. Accordingly, courts must
be careful, lest we obliterate the already thin line between
avoidance, which is criminal, and indifference, which “cannot
be punished.” See Leahy, 464 F.3d at 796. We must keep in
mind that “evidence merely supporting a finding of negligence—
that a reasonable person would have been strongly
suspicious, or that a defendant should have been aware of
criminal knowledge—does not support an inference that a
particular defendant was deliberately ignorant.” Carrillo, 435
F.3d at 782. The necessary willful blindness must surpass
recklessness as well. Global-Tech Appliances, Inc. v. SEB S.A.,
563 U.S. 754, 769 (2011).
Here, the evidence is very close. Tantchev argues he was
never present for the loading of the containers to Mongolia
Nos. 18-1200 & 18-1263 13
and he filled out the CBP forms with information his customers
provided. He testified he did not want to look in the containers
because he did not want liability for damaged goods.
He believed if he did not open the containers, any liability for
damages would fall on the customers who loaded them. But
he testified that he was very safety conscious in his trucking
business and took great precautions to ensure his shipments
were safe. He testified this was because the liability in his
trucking business would fall on him, not on his customers.
The government argues it strains credulity to believe that
a man who owns his own transportation company would allow
complete strangers to load shipping containers to be sent,
in his name, to a foreign land without checking and making
sure everything is safely stowed. Tantchev asserts that argument
necessarily leads to the conclusion he had actual
knowledge—it assumes he looked in the containers and actually
knew the cars were stolen and the manifests were inaccurate.
If that were true, the district court would have erred by
giving the ostrich instruction because evidence pointing
solely to direct knowledge of criminal activity does not support
the instruction. See United States v. Tanner, 628 F.3d 890,
905 (7th Cir. 2010); United States v. Giovannetti, 919 F.2d 1223,
1228 (7th Cir. 1990) (“[W]hen the facts require the jury to
make a ‘binary choice’ between ‘actual knowledge’ and ‘complete
innocence,’ the ostrich instruction should not be
given.”). The government certainly pushed an “actual
knowledge” narrative, but the evidence does not present only
a “binary choice” between actual knowledge or no
knowledge. Instead, it can support a finding of both actual
knowledge and deliberate avoidance. See United States v. Carrillo,
269 F.3d 761, 769 (7th Cir. 2001).
14 Nos. 18-1200 & 18-1263
For instance, the jury could have found Tantchev looked
in the containers and saw the contents did not match the information
on the forms he would send to Atlantic Express for
CBP. That would amount to actual knowledge the forms contained
false information. But the jury could consider that
knowledge as a “red flag” sufficient to raise questions in
Tantchev’s mind that everything was not above-board. It was
then Tantchev’s deliberate avoidance that led to his not having
actual knowledge the cars were stolen.
Alternatively, the jury could have believed Tantchev’s testimony
that he never looked in the containers or verified the
information provided by his customers, but concluded he
adopted that indifferent attitude out of a desire to avoid confirming
that he was part of a criminal scheme. After all, he
testified that he was safety-conscious in his trucking business.
The jury was entitled to conclude Tantchev purposely did not
subject these containers to the scrutiny he exercised in the
other part of his business and draw a negative inference from
that change in behavior.
These are not the strongest examples of when an ostrich
instruction is appropriate, but we are reviewing the court’s
decision to give the instruction for an abuse of discretion, taking
all inferences in the light most favorable to the government.
In a close case like this one, that standard is dispositive.
See United States v. Ramirez, 574 F.3d 869, 881 (7th Cir. 2009)
(“[I]n cases such as this, we should defer to the district court’s
exercise of discretion to give the ostrich instruction.”). While
a different court may not have given the ostrich instruction
under these circumstances, the district court in this case did
not abuse its discretion in doing so.
Nos. 18-1200 & 18-1263 15
2.
Tantchev’s second allegation of error also attacks a
knowledge instruction. The district court instructed the jury:
“If you find that the defendant was in possession of property
that recently had been stolen, you may infer that he knew it
was stolen.” The instruction tracked our suggested pattern.
See Seventh Circuit Pattern Criminal Jury Instruction 4.14.
Courts have given this instruction, or one like it, “[f]or centuries.”
See Barnes v. United States, 412 U.S. 837, 843–44 (1973).
Tantchev argues the evidence did not support this instruction.
He maintains he had a legitimate reason to possess the
cars: he was shipping them for customers. He also notes these
cars were not “stolen” in the usual sense; that is, they were
not hot-wired from a parking deck in the Loop or carjacked.
But Tantchev does not dispute the cars at issue in this case
were all nevertheless “stolen.” See generally United States v.
Turley, 352 U.S. 407, 417 (1957) (“‘Stolen’ as used in 18 U.S.C.
§ 2312 includes all felonious takings of motor vehicles with
intent to deprive the owner of the rights and benefits of ownership,
regardless of whether or not the theft constitutes common-
law larceny.”). And arguments about why Tantchev
possessed them or when they were stolen are questions for
the jury. See United States v. Riso, 405 F.2d 134, 138 (7th Cir.
1968) (“[W]hether possession is sufficiently recent … is a
question of fact solely for the jury.”).
Tantchev was in possession of stolen property. It was up
to the jury to decide whether the surrounding circumstances
supported the inference of knowledge. It was not reversible
error to give the instruction.
16 Nos. 18-1200 & 18-1263
3.
Tantchev’s third allegation of error concerns the district
court’s decision to allow the government to pursue a line of
questioning during his cross-examination. We review such
evidentiary decisions “for abuse of discretion.” United States
v. Boswell, 772 F.3d 469, 475 (7th Cir. 2014).
During Tantchev’s direct examination, he and his counsel
had the following exchange:
Q. And other than the three [containers
named in the indictment], were there any
problems with any of the rest of your containers—
A. No problem.
Q. —that were inspected?
A. No problem.
On cross-examination the next day, the government
sought to introduce evidence there were indeed other containers
that “had problems,” specifically that there were two
other shipments that also contained stolen cars.5
Q. … And you told us yesterday, sir,
that besides these three shipments, there
were never any other problems, right?
A. Yes, sir.
Q. Well, that’s not true is it?
At this point, defense counsel objected, arguing that was
not an accurate characterization of Tantchev’s testimony from
5 The government did not charge these shipments in the indictment.
Nos. 18-1200 & 18-1263 17
direct. The court overruled the objection, and the questioning
continued:
Q. In fact, at exactly the same time
these shipments were seized, there were
two other [sic] seized also loaded up with
stolen cars --
MR. BRINDLEY [Defense counsel]:
Objection, your Honor.
BY MR. HOGAN [Prosecutor]:
Q. -- also from your --
MR. BRINDLEY: Objection.
BY MR. HOGAN:
Q. -- also from your yard?
THE COURT: Wait. There is an objection.
There then followed a sidebar, after which the court allowed
the government to proceed with the questioning, but
in a limited manner. The court allowed the government to
contradict Tantchev’s testimony but prohibited it from getting
into the substance of the “problems” with the containers.
Nonetheless, as cross-examination continued, the prosecutor
mentioned “stolen cars” two more times. Both times, defense
counsel objected and the court intervened before Tantchev
answered the question. Tantchev objects to this exchange.
“It is well-settled that ‘when a criminal defendant elects to
testify in his own defense, he puts his credibility in issue and
exposes himself to cross-examination, including the possibility
that his testimony will be impeached.’” United States v.
18 Nos. 18-1200 & 18-1263
Kohli, 847 F.3d 483, 492 (7th Cir. 2017) (quoting Boswell, 772 at
475). Tantchev argues the government’s questioning was improper
because it did not contradict his earlier testimony from
his direct examination.
The government and the district court both interpreted
Tantchev’s testimony to be that he never had any other problems
with shipments. Tantchev maintains he did not testify
that he never had any other problems with his shipments, but
only that he had no problems with his shipments that were
outstanding at the time CBP caught the containers charged in
the indictment.
We conclude both are reasonable interpretations of
Tantchev’s answer from his direct testimony, which, particularly
given that Tantchev did not let his attorney finish the
question before answering, is ambiguous. That conclusion resolves
the issue. Presented with two possible interpretations,
we will not say the district court abused its discretion by
choosing one over the other.
4.
Tantchev’s final allegation of error concerns the prosecutor’s
comments during closing arguments. During the trial,
evidence came in relating to the operations of the Fifth Third
Bank location from which the wire transfers were sent to Bulgaria.
Namely, it was introduced that an account holder had
to be physically present in the branch to send a wire transfer,
Nos. 18-1200 & 18-1263 19
and it was the responsibility of two employees, the branch
manager and the “banker,”6 to enforce this policy.
In the course of questioning one of the bank employees,
the government elicited testimony that the banker at a particular
branch Tantchev had used during the relevant period
had been fired. However, because of objections from the defense,
the government was not able to introduce the witness’s
testimony concerning the firing of that branch’s manager or
why those employees were fired.
Nevertheless, in his closing argument, the prosecutor said,
“But you heard from Ms. Sanchez that her supervisors back
at that time at Fifth Third Bank were both fired for malfeasance.”
This prompted an objection from defense counsel,
who remarked that the reason the supervisors were fired had
been “stricken as hearsay.” The district court then gave the
jury the following admonition: “Ladies and gentlemen, if I
struck something from the record, I will tell you now and tell
you, again, when I instruct you that you should not consider
it at all. You should disregard it.” In the final instructions to
the jury before it began deliberations, the court also instructed
that statements by attorneys are not evidence.
Tantchev argues the prosecutor’s misstatement of the evidence
prejudiced him to the point of requiring a new trial.
Our analysis proceeds in two phases: “[W]e first look at the
disputed remarks in isolation to determine if they are proper.
If they are improper, we then consider the remarks in light of
the entire record to determine if the defendant was deprived
6 A witness testified the banker “sits at the desk greeting customers,
taking care of them for opening a checking account, savings account,
CDs, auto loans.”
20 Nos. 18-1200 & 18-1263
of a fair trial.” United States v. Cotnam, 88 F.3d 487, 498 (7th
Cir. 1996). Here, the statement is clearly improper: the prosecutor
referenced facts not in evidence. So, we must ask
whether that impropriety deprived Tantchev of a fair trial.
We consider six factors: “(1) whether the prosecutor misstated
evidence; (2) whether the statements implicate a specific
right of the defendant; (3) whether the defense invited
the prosecutor’s remarks; (4) the trial court’s instructions; (5)
the weight of the evidence against the defendant; and (6) the
defendant’s opportunity to rebut.” United States v. Richards,
719 F.3d 746, 766 (7th Cir. 2013). The fifth factor is “[t]he most
important,” because “[s]trong evidence of guilt eliminates
any lingering doubt that the prosecutor’s remarks unfairly
prejudiced the jury’s deliberations.” Rodriguez v. Peters, 63
F.3d 546, 558 (7th Cir. 1995) (quoting United States v. Gonzalez,
933 F.2d 417, 431–32 (7th Cir. 1991)).
Some of these factors do lean in favor of Tantchev. The
prosecutor clearly misstated the evidence, and there is no indication
Tantchev invited the remark in any way. But most
factors lean against him. The statements did not implicate a
specific right. The district court gave a curative instruction
immediately after the prosecutor made the remark and instructed
the jury before deliberations that statements by attorneys
are not evidence. Tantchev had an opportunity to rebut,
as his counsel made his closing argument after the prosecutor
made the offending statement. Finally, and most importantly,
the weight of the evidence is heavily on the side of the government.
The prosecutor’s comment went to the structuring
charge, the implication being Tantchev was able to perpetrate
his financial scheme with the help of corrupt bank employees.
That conclusion was not critical to the case. The government
Nos. 18-1200 & 18-1263 21
presented evidence of nearly 100 separate deposits totaling almost
$575,000, all close in time, yet no single deposit was ever
more than $10,000. These deposits were then quickly followed
by large wire transfers to bank accounts in Bulgaria,
Tantchev’s native country. And the government showed
some of the named account holders were not even in the
United States at the time. In the face of all this evidence, it is
not as if the bank employee’s bad acts were the key evidence
Tantchev was making his deposits with the intent to avoid the
reporting requirements. The prosecutor’s comment was improper,
but it did not deprive Tantchev of a fair trial.
Outcome: This case contains several close calls, and Chogsom and
Tantchev raise compelling points. But our review requires
deference to the district court and the jury, both of which have
seen the witnesses and heard the testimony, and thus have a
greater appreciation of what transpired during those six days
in March 2017. With that deference in mind, and for the reasons
set forth above, we AFFIRM.
Plaintiff's Experts:
Defendant's Experts:
Comments: