United States v. Alexander Sakhanskiy

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 2018
• Docket: 16-10060
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10060

Plaintiff-Appellee, D.C. No. 2:13-cr-00160-MCE-1 v.

ALEXANDER SAKHANSKIY, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-10061

Plaintiff-Appellee, D.C. No. 2:13-cr-00160-MCE-2 v.

LARISA SAKHANSKIY,

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted March 14, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BERZON and BEA, Circuit Judges, and BERG,** District Judge.

In these consolidated appeals, Alexander and Larisa Sakhanskiy (husband

and wife) appeal their convictions under 18 U.S.C. § 844(i) (federal arson) for their

role in a fire that burned their house down in Antelope, California. The

Sakhanskiys argue that their conduct did not meet the statute’s interstate commerce

element and the district court’s instructions, as well as its answer to a jury question

on this element, were in error. They also argue that the district court erred in

allowing their former insurance attorney to testify at trial that he used the U.S.

Mail to send a letter on their behalf to the insurance company’s attorney. For the

reasons set forth below, we AFFIRM.

1. The Sakhanskiys first challenge the jury’s finding that their home was

“[a] building ... used in interstate or foreign commerce or in any activity affecting

interstate or foreign commerce.” 18 U.S.C. § 844(i). They contend that the

evidence at trial failed to prove the interstate commerce nexus element of § 844(i)

beyond a reasonable doubt. In reviewing a claim of insufficient evidence, we

consider whether “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99

** The Honorable Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by designation.

2 16-10060 S.Ct. 2781, 61 L.Ed.2d 560 (1979). At trial, two witnesses testified that Mr.

Sakhanskiy ran a “handy-man” business out of his home, in addition to working as

an employee of a plumbing company. The government also presented evidence

that Sakhanskiy placed advertising for the “Alexander’s Handyman” business,

obtained several years of licenses related to the business, maintained a business

bank account at a large multinational bank (Bank of America), and stored

numerous expensive construction tools on the property of his residence (several of

which were manufactured by such multinational, interstate vendors as Craftsman,

Dewalt, Hitachi, and Honda). This evidence was sufficient to permit a rational

jury to find the interstate commerce element was met. A rational jury hearing such

evidence could conclude beyond a reasonable doubt that the Sakhanskiy residence

“served as a home office or the locus of any commercial undertaking.” Jones v.

United States, 529 U.S. 848, 856, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Thus,

we conclude that this challenge is not well-taken.

2. The Sakhanskiys next contend that the district court erred by (1) failing

to instruct the jury that a conviction on the arson charge requires a finding that “the

fire substantially affected interstate commerce,” and (2) responding to a written

question from the jury during deliberations concerning the definition of “interstate

commerce.” This objection was not presented to the district court, however, so our

review is for plain error. See United States v. Del Toro-Barboza, 673 F.3d 1136,

3 16-10060 1146 (9th Cir. 2012). The district court’s arson jury instructions: (1) tracked the

language of § 844(i) nearly verbatim; and (2) drew upon a slightly altered phrase

from the Supreme Court’s opinion in Jones. The district court defined “interstate

commerce” by instructing the jury that “[a] building is used in interstate commerce

or in any activity affecting interstate commerce if it is used for a commercial

purpose.” In Jones, the Supreme Court concluded that a residence was not “used

in interstate . . . commerce” in part because there was no allegation that it “served

as a home office or the locus of any commercial undertaking.” Jones, 529 U.S. at

856. The district court’s instruction here was not materially different from the

language in Jones and did not constitute plain error. See United States v. Serang,

156 F.3d 910, 914 n.3 (9th Cir. 1998) (holding in relation to § 844(i) that the

appellant’s argument “that the … jury instructions were insufficient because they

did not contain the word ‘substantial’ are without merit”). Moreover, the district

court’s subsequent reference back to the instruction, in response to the jury’s

written question during deliberations about the definition of “interstate commerce,”

was not an abuse of discretion because there was no error in the jury instruction in

the first place.

3. Finally, the Sakhanskiys contend that the district court erred by allowing

their former insurance attorney, Jerry Chong, to testify about his use of the U.S.

Mail to send a letter containing Defendants’ itemized loss statement to Farmers

4 16-10060 Insurance’s attorney. This evidence was offered by the Government to establish an

element of mail fraud (Count Three). The attorney-client privilege protects

confidential communications between attorneys and clients, which are made for the

purpose of giving legal advice. See Upjohn Co. v. United States, 449 U.S. 383,

389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “The claim of privilege must be made

and sustained on a question-by-question or document-by-document basis; a blanket

claim of privilege is unacceptable. The scope of the privilege should be strictly

confined within the narrowest possible limits.” United States v. Christensen, 828

F.3d 763, 803 (9th Cir. 2015) (internal quotation omitted). Chong testified only

that: (1) he was an attorney, (2) he recognized both the letter and his signature on

his letterhead, and (3) he mailed the letter by U.S. Mail. None of these questions

touched upon a confidential communication between Attorney Chong and his

clients that was made for the purpose of obtaining legal advice.

AFFIRMED.

5 16-10060