United States v. Charkoshvili ( 2021 )

19-3471-cr (L)
United States v. Charkoshvili, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of February, two thousand twenty-one.
PRESENT:
ROBERT D. SACK,
SUSAN L. CARNEY,
Circuit Judges,
RACHEL P. KOVNER,
District Judge. *
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 19-3471-cr,
OLEGI CHARKHOSHVILI, ZURAB GVARLIANI, 19-3566-cr
Defendants-Appellants,
DAVIT SHATIRISHVILI, DAVITI SULAKAURI,
Defendants.**
* Judge Rachel P. Kovner, of the United States District Court for the Eastern District of New York, sitting by
designation.
** The Clerk of Court is directed to amend the official caption to conform to the above.
_________________________________________
FOR DEFENDANTS-APPELLANTS: James P. Egan, Federal Public Defender,
Syracuse, NY (for Olegi Charkhoshvili).
Evans D. Prieston, Esq.,
Long Island City, NY
(for Zurab Gvarliani).
FOR APPELLEE: Rajit S. Dosanjh, Assistant United States
Attorney, for Antoinette T. Bacon, Acting
United States Attorney for the Northern
District of New York, Syracuse, NY.
Consolidated appeal from judgments of the United States District Court for the
Northern District of New York (McAvoy, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s order entered June 12, 2018,
and judgments of conviction entered on October 22, 2019, are AFFIRMED.
Defendants-Appellants Olegi Charkhoshvili and Zurab Gvarliani (“Defendants”)
appeal from an evidentiary order and judgments convicting them of conspiracy to commit
alien smuggling, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), (a)(1)(B)(i), and (a)(1)(A)(i).
On appeal, they contend primarily that, prior to their jury trial, the District Court (Kahn, J.)
erred by denying their motions to suppress evidence arising from a Border Patrol agent’s
stop of their car on August 21, 2016, in the Champlain, New York area, near the Canadian
border. We assume the parties’ familiarity with the underlying facts, procedural history, and
arguments on appeal, to which we refer only as necessary to explain our decision to affirm.
On appeal from a district court’s denial of a motion to suppress evidence, we review
the court’s legal conclusions de novo and its factual findings for clear error, viewing the
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evidence in the light most favorable to the government. United States v. Singh, 415 F.3d 288,
293 (2d Cir. 2005); see also United States v. Compton, 830 F.3d 55, 61 (2d Cir. 2016). 1
Investigatory stops made by Border Patrol agents patrolling inland routes that are
“not at the border or its functional equivalent” are “held to a higher standard” than the
“per se reasonableness” rule applied to border searches, but still have the benefit of a more
flexible application of established Fourth Amendment constraints than stops divorced from
the special circumstances presented by border crossings. Singh, 415 F.3d at 294. Still, border
patrol agents may “briefly detain and question the vehicle’s occupants regarding their
citizenship, immigration status, and any suspicious circumstances” only if the “reasonable
suspicion” standard of Terry v. Ohio, 392 U.S. 1 (1968), is met. Singh, 415 F.3d at 294. To
justify a roving stop, agents must be “aware of specific articulable facts, together with
rational inferences from those facts, that reasonably warrant suspicion that the vehicles
contain aliens who may be illegally in the country.” United States v. Brignoni-Ponce, 422 U.S.
873, 884 (1975). In other words, a Border Patrol agent conducting a roving stop—by which
we mean a vehicle stop performed near but not precisely at the international border—must
have a “particularized and objective basis for suspecting legal wrongdoing” in light of the
“totality of the circumstances.” Singh, 415 F.3d at 294.
In this specialized context, we look to the following non-exclusive factors as we
assess whether the agent had reasonable suspicion for the stop: “(1) characteristics of the
area where the vehicle is found; (2) [the vehicle’s] proximity to the border; (3) usual traffic
patterns on that road; (4) [an agent’s] previous experience with alien traffic in the area;
(5) recent information about specific illegal border crossings there; (6) the driver’s behavior,
such as attempting to evade officers; (7) characteristics of the vehicle itself; and (8) the
appearance of persons in the vehicle, such as mode of dress.” Id. In light of these factors and
on de novo review, we conclude that the District Court did not err in denying Defendants’
motions to suppress.
1 Unless otherwise noted, in quoting from caselaw this Order omits all alterations, citations, footnotes, and
internal quotation marks.
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Our decision to affirm the District Court’s order is based on the following
considerations:
Characteristics of the area where the vehicle was found and its proximity to the border. The Border
Patrol agent who conducted the stop, Agent Reynaldo Almaguer, encountered Defendants’
vehicle in a sparsely settled rural area that, in his experience, is “commonly use[d]” by aliens
“to enter the United States illegally from Canada.” Charkhoshvili App’x 80. See Singh,
415 F.3d at 294 (“[O]fficers are entitled to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information available
to them that might well elude an untrained person.”). The agent first spotted and stopped
Defendants less than two miles from the U.S.-Canadian Border.
Usual traffic patterns where the stop occurred and characteristics of Defendants’ vehicle. During the
suppression hearing, Agent Almaguer testified that “99 percent” of the traffic in the area
where the stop occurred is “local traffic,” further adding to his suspicion, because before
stopping the car, he learned that Defendants’ car was registered to an address in Woodstock,
New York, a location that is an approximately four hours’ drive south of the town of
Champlain. Charkhoshvili App’x 122-23. Agent Almaguer averred that “[i]n [his] experience,
it is common for smugglers to use vehicles from out of the area to transport aliens.” Id. 81.
See also Singh, 415 F.3d at 295.
Recent information about specific illegal border crossings in the area. Shortly before conducting
the challenged stop, Agent Almaguer received multiple, real-time notifications from
authorities that an illegal border crossing was taking place. These consisted of (1) a notice
from the Royal Canadian Mounted Police (relayed by Border Patrol radio dispatch)
informing him of a suspected border crossing in the area, and (2) an alert that an electronic
motion sensor detected movement at the nearby border.
Defendants’ driving behavior. While his patrol vehicle was parked near the border, Agent
Almaguer first observed Defendants’ car at approximately 12:20 am as it was being driven
“eastbound on Perry Mills Road.” Charkhoshvili App’x 81. After waiting “[a]pproximately
90 seconds to two minutes” and observing no other cars pass by, Agent Almaguer drove his
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own vehicle eastward to pursue Defendants. Id. 116-18. He then came across Defendants’
car near the location where the electronic motion sensor had alerted Border Patrol to a
suspected illegal crossing. According to Agent Almaguer, he suspected that Defendants had
stopped there, along the road, to pick someone up because, if they had been “driving the
speed limit, [they] would have been already farther down the road” than where he
encountered them. Id. 118. This suspicion was reasonable in light of the fact that, after they
possibly had stopped to pick someone up, the agent observed Defendants’ vehicle promptly
turn to drive southbound on the interstate highway (i.e., away from the U.S.-Canadian
border).
Under these circumstances, we find that Agent Almaguer reasonably suspected that
Defendants’ vehicle contained one or more aliens who may have illegally entered the county
and that he committed no Fourth Amendment violation when he stopped the vehicle. The
District Court did not err in so concluding.
* * *
We have considered all of Defendants’ arguments on appeal and find in them no
basis for reversal. For the foregoing reasons, the District Court’s order and judgments of
conviction are AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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