United States v. Ozbay

296 F. App'x 148
CourtCourt of Appeals for the Second Circuit
DecidedOctober 16, 2008
DocketNos. 07-1203-cr(L), 07-1412-cr, 07-1805-cr, 07-1965-cr
StatusPublished
Cited by1 cases

This text of 296 F. App'x 148 (United States v. Ozbay) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ozbay, 296 F. App'x 148 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendants Ziya Ozbay, Birol Ozbay, Yalcin Ozbay, and Mustafa Ozbay appeal various aspects of their convictions and sentences. Mustafa and Birol pleaded guilty to obstructing and impeding the Internal Revenue Service (“IRS”), failing to file tax returns, failing to pay employee trust taxes, and structuring. Ziya and Yalcin were convicted, following a jury trial, of obstructing and impeding the IRS, failing to pay employee trust taxes, and structuring. In addition, Ziya was convicted of failing to file tax returns, and Yalcin was convicted of filing a false return. The district court sentenced Ziya, Birol, and Yalcin to terms of imprisonment of 121 months and Mustafa to a term of imprisonment of 87 months. The district court also ordered forfeiture in the form of a $6.8 million money judgment, imposing joint and several liability on all four defendants. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.

Considering first Ziya’s challenge to the sufficiency of the evidence on counts 46 and 47, we review the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor, and we will reverse only if no rational factfinder could have found guilt beyond a reasonable doubt. United States v. Gaskin, 364 F.3d 438, 459-60 (2d Cir.2004). Ziya argues there was insufficient evidence to allow the jury to conclude that he aided and abetted his son-in-law, Yalcin, in Yalcin’s structuring of funds derived from Erin and Faek Corporation (“Erin and Faek”). To obtain the aiding and abetting conviction, the government was required to show, in relevant part, that Ziya “either acted or failed to act with the specific intent of enabling” Yalcin’s structuring. United States v. Frampton, 382 F.3d 213, 223 (2d Cir.2004). The evidence introduced at trial included the following: (1) Ziya was a vice president of Erin and Faek; (2) Ziya had signature authority, [150]*150received a salary, and had management responsibilities at Erin and Faek; (3) Ziya was a 50% shareholder in Erin and Faek; (4) at least one supplier considered Ziya’s and Yalcin’s businesses, although purportedly separate, to be a single entity; (5) Ziya operated the Ozbay Service Center and structured its proceeds to avoid currency reporting requirements, thereby establishing the business model later implemented by Yalcin at Erin and Faek; and (6) Ziya acquired his stake in Erin and Faek through an investment in the form of two $9000 cashier’s checks. This evidence was not “so meager that no reasonable jury could find guilt beyond a reasonable doubt.” United States v. MacPherson, 424 F.3d 183, 187 (2d Cir.2005) (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999)). Accordingly, we conclude that the convictions on counts 46 and 47 are supported by sufficient evidence.

All four defendants raise on appeal for the first time multiplicity challenges to them numerous structuring convictions; Mustafa and Birol each pleaded guilty to six separate counts of structuring, and Ziya and Yalcin each were convicted of three separate counts. “The doctrine of multiplicity is based upon the double jeopardy clause of the Fifth Amendment, which assures that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” United States v. Harris, 79 F.3d 223, 231 (2d Cir.1996) (internal quotation marks omitted). “The constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived.” United States v. Perez, 565 F.2d 1227, 1232 (2d Cir.1977); see also United States v. Papadakis, 802 F.2d 618, 621 (2d Cir.1986). Because none of the defendants raised these multiplicity challenges prior to trial — or, in the case of Mustafa and Birol, prior to pleading guilty — we find the multiplicity challenges waived and decline to review them on appeal.

Yalcin and Ziya next appeal the forfeiture order. They argue that the imposition of joint and several liability cannot be reconciled with the fact that the district court granted their Rule 29 motions and dismissed three of the structuring counts on the ground that there was insufficient evidence to find that they aided and abetted Birol’s structuring activities. We agree with Yalcin and Ziya: In the absence of any aiding and abetting or conspiracy liability, there is no justification for joint and several liability on the forfeiture order.

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Bluebook (online)
296 F. App'x 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ozbay-ca2-2008.