United States v. Goyko Kuburovich ( 2021 )

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NOT FOR PUBLICATION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.
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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
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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
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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.
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