United States v. Goyko Kuburovich

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2021
• Docket: 19-10215
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10215

Plaintiff-Appellee, D.C. No. 5:16-cr-00373-EJD-1 v.

GOYKO GUSTAV KUBUROVICH, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Submitted July 6, 2021** San Francisco, California

Before: GRABER and LEE, Circuit Judges, and VRATIL,*** District Judge.

A jury convicted Defendant Goyko Gustav Kuburovich of bankruptcy fraud,

18 U.S.C. § 157, concealment of assets in a bankruptcy proceeding, id. § 152(1),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. and making a false statement in a bankruptcy proceeding, id. § 152(3). He timely

appeals his convictions. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. Defendant first argues that the district court erred by denying his motion

to dismiss under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). We review for

clear error the district court’s findings of fact, including a finding that the ends of

justice warrant a continuance, United States v. Henry, 984 F.3d 1343, 1349–50

(9th Cir. 2021), and we otherwise review de novo the denial of the motion, id.

With respect to the four-month delay beginning in May 2017, Defendant

cannot argue that the district court clearly erred in finding that both his own lawyer

and the prosecutor required more time to prepare for trial. That is because, first,

Defendant and his codefendant daughter jointly asked for the continuance that ran

from May 8, 2017, until July 24, 2017. Second, Defendant fails to show how the

court clearly erred in finding that the government needed another fifty days for

continuity of counsel, which Defendant did not oppose. Defendant points to

nothing but his own conjecture that the case’s original prosecutor acted in bad

faith. He then argues that such alleged bad faith, once revealed by Defendant in

his motion to dismiss, retroactively tainted the district court’s factual findings.

That post hoc reasoning is insufficient to show clear error.

2 Nor did the district court clearly err in finding that the ends of justice

supported the March 2018 continuance. Defendant agreed, in a signed stipulation,

that he required more time for trial preparation and for continuity of counsel. Even

if plea negotiations were one reason for the requested continuance, the court

permissibly relied on the stated grounds of continuity and preparation. See United

States v. Sutter, 340 F.3d 1022, 1033 (9th Cir. 2003) (holding that "where a

defendant stipulates to facts underlying a district court’s conclusion that time is

excludable, the defendant cannot later challenge that finding"), as amended on

denial of reh’g, 348 F.3d 789 (9th Cir. 2003).

2. Defendant next contends that the evidence was insufficient to support his

convictions. We review de novo the denial of Defendant’s motion for acquittal

under Federal Rule of Criminal Procedure 29. United States v. Rocha, 598 F.3d

1144, 1153 (9th Cir. 2010). And we view the evidence in the light most favorable

to the prosecution. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)

(en banc).

On this record, a reasonable juror easily could find that Defendant’s (a)

repeated and redundant transfers of wealth to his daughter’s empty bank accounts,

(b) control over those accounts and of the house purchased with their funds, and (c)

failure to list the accounts or the house on his bankruptcy petition and statement of

3 financial affairs showed that he had concocted a scheme to commit bankruptcy

fraud.

3. Next, Defendant asserts that the district court plainly erred, United States

v. Klinger, 128 F.3d 705, 710 (9th Cir. 1997), by not giving sua sponte a specific

unanimity instruction for Counts 2 and 3. But, as we have held in another context,

"consensus by the jury on a particular false statement is not required." United

States v. McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995). Even if the government

presented distinct violations of § 152(1) and § 152(3), sufficient evidence, as

discussed above, supports a conviction for each violation. That makes any error

harmless. See United States v. Lyons, 472 F.3d 1055, 1069 (9th Cir. 2007)

(holding that the district court did not plainly err because sufficient evidence

supported both theories of guilt).

4. Finally, Defendant claims that the district court erred by denying his

motion for discovery to support a claim of vindictive prosecution. We review de

novo the district court’s legal conclusions, and for clear error its findings of fact.

United States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017).

The district court did not err. Defendant’s theory is that the federal

government belatedly pursued bankruptcy fraud charges because he won acquittal

in an unrelated state prosecution on marijuana charges. The fact that the second

4 prosecution was “based on a different set of facts from [the] previous

prosecution[]” and “was brought by a different sovereign . . . weakens defendant’s

position.” United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981).

Nothing other than sheer speculation hints at vindictiveness.

AFFIRMED.