United States v. Marko Rudi , 453 F. App'x 290 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4736
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKO RUDI,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00412-NCT-1)
Argued: October 25, 2011 Decided: November 8, 2011
Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jenifer Wicks, Washington, D.C., for Appellant. Robert
Michael Hamilton, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: John W.
Stone, Jr., Acting United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Estonia extradited Marko Rudi to the United States to face
charges in federal court for a fraud scheme in which he
attempted to obtain kickbacks in return for awarding United
States government contracts in Iraq. Rudi pled guilty to one
count of major fraud against the United States in exchange for
the dismissal of a second wire fraud charge and recommendation
of a sentence at the low end of the applicable guideline range.
On appeal, Rudi contends that the Government obtained his
conviction in violation of the Estonian extradition order and
did not fulfill its obligations under the plea agreement; he
also maintains that the district court abused its discretion in
sentencing him. We affirm.
I.
On November 26, 2007, a federal grand jury issued a five
count indictment charging Rudi with wire fraud and deprivation
of honest services, in violation of 18 U.S.C. §§ 1343, 1346;
bribery, in violation of 18 U.S.C. § 666(a)(1)(B); major fraud
against the United States, in violation of 18 U.S.C. § 1031;
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i);
and concealment of money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i).
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Research Triangle Institute International, Inc. (“RTI”), a
company that has managed approximately one billion dollars in
contracts for the United States Agency for International
Development (“USAID”), had employed Rudi. Around April 2003,
while working at RTI, Rudi was responsible for supervising a
USAID contract in Iraq known as the Local Governance Project.
Instead of obtaining competitive bids from providers, Rudi
attempted to obtain kickbacks from two bidders, SMitTeq LLC and
Business Systems House FZ-LLC (“BSH”), in exchange for awarding
a contract. After the contract was awarded to it, BSH wired
approximately $255,000 to an attorney in Durham for the purchase
of a house at 7 Birnham Lane, Durham, N.C. The home was
purchased in the name of a shell corporation, Southbay Partners,
but Rudi and his family occupied the house.
At the time of his indictment, Rudi lived in his native
country of Estonia. On September 17, 2008, the United States
formally requested that Estonia extradite Rudi based on the
pending indictment. On December 12, 2008, the Estonian Ministry
of Justice ordered the extradition of Rudi on the two fraud
charges, but refused to extradite him for the charges of bribery
and money laundering. Following his arraignment, Rudi moved to
dismiss the bribery and money laundering charges based on
Estonia’s refusal to extradite him on those grounds. The United
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States ultimately consented to the dismissal of those charges,
and the charges were dropped.
On March 18, 2010, Rudi pled guilty to one count of major
fraud against the United States pursuant to a plea agreement.
The agreement provided, inter alia, that the remaining wire
fraud charge would be dismissed and that “the United States will
recommend to the Court that the defendant receive a sentence at
the low end of the applicable advisory guideline range.”
At sentencing, the district court determined the applicable
advisory range to be 24-30 months imprisonment. When the court
asked for the Government’s recommendation, the prosecutor
replied “in the plea agreement the Government recommended to the
Court a sentence at the lowest end of guidelines.”
Nevertheless, the district court determined that an upward
variance was appropriate and sentenced Rudi to 33 months of
confinement, 3 years of supervised release, and a $150,000 fine.
Rudi noted this timely appeal.
II.
Rudi first contends that his conviction was obtained in
violation of the Estonian extradition order and therefore
violates the rule of specialty. He argues that his conviction
for major fraud against the United States was dependent on facts
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that showed that he accepted a bribe from BSH, and Estonia
explicitly refused to extradite Rudi on the charge of bribery.
The rule of specialty prohibits a requesting nation from
prosecuting an extradited individual for offenses other than
those on which the surrendering nation agreed to extradite. See
United States v. Rauscher, 119 U.S. 407, 418-19 (1886); United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). The rule of
specialty finds root in many of the reciprocal extradition
treaties of the United States. In the case of Estonia, the
treaty provides that “[n]o person shall be tried for any crime
or offense other than that for which he was surrendered.”
Treaty Between the United States and Esthonia for Extradition of
Fugitives from Justice art. IV, U.S.-Est., Nov. 8, 1923, 43
Stat. 1849.
Assuming, without deciding, that Rudi has standing to raise
the issue of a violation of the rule of specialty, we hold that
Rudi has waived his right to appeal the issue by failing to
raise the argument in the district court. See Davis, 954 F.2d
at 186-87. The rule of specialty is equivalent to a limit on
personal jurisdiction over the defendant, and so is subject to
waiver if not raised in a timely manner. See Fed. R. Crim. P.
12(b)(3), (e); United States v. Marquez, 594 F.3d 855, 858 (11th
Cir. 2010); United States v. Anderson, 472 F.3d 662, 668 (9th
Cir. 2006); United States v. Yousef, 327 F.3d 56, 115 (2d Cir.
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2003); United States v. Vreeken, 803 F.2d 1085, 1088-89 (10th
Cir. 1986). In the district court, rather than contending that
the rule of specialty barred prosecution on the major fraud
count, Rudi pled guilty to the charge. His total failure to
raise the rule of specialty objection with respect to the major
fraud count in the district court waives his reliance on the
specialty doctrine before us.
Rule 12(e) does provide that a court may grant relief from
such a waiver upon a showing of “good cause.” Fed. R. Crim. P.
12(e). However, Rudi has provided no reason for his failure to
raise the argument before the district court. Given that he
moved to dismiss the bribery and money laundering claims as
violating the rule of specialty, he clearly understood his right
to rely on the rule of specialty but failed to do so with
respect to the major fraud charge. 1
Rudi’s contention that his claim presents a “structural”
defect that cannot be waived fails in light of our holding in
Davis. Considering a nearly identical argument, we there held:
Because courts construe international treaties as
equivalent in supremacy to validly enacted federal
law, the principle of specialty articulated by the
1
Rudi also contends that he cannot waive the rule of
specialty because the doctrine is a right of Estonia.
Regardless of whether Estonia continues to maintain a right to
invoke the doctrine of specialty, Rudi waived his right to
invoke the doctrine. See Davis, 954 F.2d at 186-87; Vreeken,
803 F.2d at 1088-89.
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. . . Extradition Treaty must be considered no more
than a statutorily created right. Protection of this
right does not rise to the level of fundamentality
that this court has traditionally demanded before
addressing a question of law not argued at the
district court level.
954 F.2d at 187. Therefore, Rudi has waived his rule of
specialty contention.
III.
Next, Rudi contends that the Government violated its
obligation in the plea agreement to recommend a sentence at the
low end of the applicable advisory guidelines range. In
particular, Rudi argues that the Government ought to have
“advocated” for a sentence at the low end of the guidelines
range instead of “merely stat[ing] the condition of the plea
agreement.” We conclude that the Government fulfilled its
obligations. 2
The plea agreement provides, in relevant part: “the United
States agrees that, once the Court has determined the applicable
2
The parties dispute the proper standard of review. The
Government contends that Rudi “did not claim the plea agreement
was breached or attempt to withdraw his guilty plea” in the
district court, and therefore we should review only for plain
error. Rudi contends that he preserved the argument, citing
trial counsel’s statement that the Government must “advocate”
for the low end of the guidelines, and so we should apply the
more forgiving clear error standard of review. We need not
decide which standard of review applies because even applying
the more generous standard, Rudi cannot prevail.
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advisory guideline range, the United States will recommend to
the Court that the defendant receive a sentence at the low end
of the applicable advisory guideline range.” When the district
court asked for the Government’s recommended sentence, the
following colloquy ensued:
THE COURT: Mr. Hamilton, you are recommending the
24 months?
MR. HAMILTON: Your Honor, in the plea agreement the
Government recommended to the Court a
sentence at the lowest end of
guidelines.
THE COURT: I think that’s all you can say.
MR. HAMILTON: Yes, sir.
The prosecutor’s recommendation was also included in the
presentence report, which indicates that “the government will
recommend that the defendant be sentenced at the low end of the
guideline range.”
Rudi received exactly the benefit promised in the plea
agreement: that the Government recommend that he receive a
sentence at the low end of the applicable guideline range.
“[I]n enforcing plea agreements, the government is held only to
those promises that it actually made to the defendant.” United
States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994). Unless the
Government binds itself to “enthusiastically” recommending a
sentence, the Government is not obligated to do more than state
its recommended sentence. United States v. Benchimol, 471 U.S.
453, 455 (1985). Here, the Government promised to recommend a
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low end sentence, and did so. Therefore, the Government did not
violate the plea agreement.
Rudi points to United States v. Brown, 500 F.2d 375 (4th
Cir. 1974), and United States v. Grandinetti, 564 F.2d 723 (5th
Cir. 1977), to support his contention that the Government must
do more than state its recommendation. But, in both of those
cases, unlike the case at hand, the prosecutor made remarks at
the sentencing hearing expressing reservations about the plea
agreement or arguing against the agreement entirely. Here, the
Government did not undermine its recommendation to the court,
and therefore, it met its obligation under the agreement.
IV.
Lastly, Rudi challenges his sentence on several grounds.
This court reviews the reasonableness of a sentence under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007).
Rudi primarily contends that the district court did not
consider the 18 U.S.C. § 3572(a) factors in imposing a fine of
$150,000. We disagree. The court considered the factors and
attempted both to tailor the fine to the crime at hand and to
address Rudi’s arguments. The court noted the severity of the
crime, the gain to Rudi, and the loss to the victims. When Rudi
objected to the fine, the district court further noted that “he
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is well educated. He has a masters degree in accounting. He
has experience in accounting, and is obviously an extremely
bright person.” Moreover, the district court ordered payment of
the fine in the form of small $150 monthly installments and
instructed Rudi that if he was unable to pay that amount, he
could bring it to the court’s attention following his release.
We therefore find that the district court did not abuse its
discretion in imposing a $150,000 fine.
Rudi also contends that the district court erred in
sentencing him to incarceration for 33 months. We find that
there was no significant procedural error and that the sentence
was substantively reasonable. See United States v. Evans, 526
F.3d 155, 161 (4th Cir. 2008). The court based its sentence on
the fact that (1) Rudi’s crime was an “awful fraud” that took
advantage of taxpayer dollars; (2) Rudi had taken steps to
conceal his fraud; (3) Rudi may have tried to receive kickbacks
from other companies; and (4) there was a need for deterrence.
Moreover, the 33 month term of incarceration was only a small
variance from the 24-30 month advisory range. The district
court thus adequately considered the factors in 18 U.S.C.
§ 3553(a) and did not abuse its discretion in imposing the 33
month sentence.
Finally, Rudi claims that the district court improperly
relied on his national origin and immigration status in
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sentencing. We cannot agree. Of course, “sentences imposed on
the basis of impermissible considerations, such as a defendant’s
race or national origin, violate due process.” United States v.
Bakker, 925 F.2d 728, 740 (4th Cir. 1991) (internal citations
omitted); see also United States v. Onwuemene, 933 F.2d 650, 651
(8th Cir. 1991); United States v. Borrero-Isaza, 887 F.2d 1349,
1355 (9th Cir. 1989); U.S.S.G. § 5H1.10 (“Race . . . [and
n]ational [o]rigin . . . are not relevant in the determination
of a sentence.”). However, there is no indication that the
district court relied on Rudi’s national origin in imposing the
sentence. Rudi relies entirely on one statement -- “Mr. Rudi
came to this country” -- that the court made in describing
Rudi’s personal and education background, factors that are
properly considered under 18 U.S.C. § 3553(a)(1). The court
made no disparaging remarks about Rudi’s alienage and made no
statement suggesting that it was relying on Rudi’s national
origin in imposing the sentence. We are unable to find that the
district court impermissibly based the sentence on national
origin.
V.
For the foregoing reasons, the judgment of the district
court is in all respects
AFFIRMED.
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