USA v. Vadym Vozniuk

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10301
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VADYM VOZNIUK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20859-RS-1
____________________
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2 Opinion of the Court 20-10301
Before BRANCH , G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
Vadym Vozniuk appeals his convictions for use of
unauthorized access devices under 18 U.S.C. § 1029(a)(2) and
conspiracy to commit access device fraud under 18 U.S.C. §
1029(b)(2). He contends that the district court plainly erred in
admitting a summary spreadsheet—prepared by the victim of the
fraud, Target Corporation, and introduced by the government—
that details a series of fraudulent transactions made at Target stores
across Florida and purportedly establishes Vozniuk’s participation
in the scheme. He also contends that the evidence presented at
trial was insufficient to support his convictions.
After careful review and with the benefit of oral argument,
we conclude that Vozniuk has failed to show that any alleged errors
affected his substantial rights because the other evidence presented
at trial—unchallenged by Vozniuk—was sufficient to support his
convictions. Accordingly, we affirm.
I. Background
A grand jury charged Vozniuk and his codefendants Denis
and Igor Grushko with conspiracy to commit access device fraud
in violation of 18 U.S.C. § 1029(b)(2) (“Count One”) and charged
Vozniuk with use of unauthorized access devices in violation of 18
U.S.C. § 1029(a)(2) (“Count Two”).
At a joint trial, the government presented evidence that,
between July 2017 and March 2018, Vozniuk and his codefendants
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20-10301 Opinion of the Court 3
engaged in over 250 fraudulent transactions at Target stores
throughout Florida, with the total loss to Target approximating
$110,000. The evidence at trial showed that, in November 2017,
Target’s fraud prevention team discovered a significant number of
“chargebacks” coming from online orders designated for pickup at
its Florida stores. A “chargeback” occurs when a bank or credit
card company identifies a purchase as fraudulent and charges the
amount of the fraudulent purchase back to the seller.
The government’s primary witness, Alexandros Glitsos, the
lead investigator on Target’s fraud prevention team, testified at
trial that the fraudsters would use stolen credit card information to
purchase low-cost items unlikely to raise any suspicion of
fraudulent activity (
e.g., cleaning products and food items),
designate a Target location for in-store pickup, and authorize a
non-existent third party to retrieve the goods. A member of the
group would then pick up the merchandise using a fake ID and
subsequently return the items to a different location in exchange
for a “merchandise return card,” which is essentially a Target gift
card. In turn, the group used these cards to purchase more
expensive items, which, as Glitsos explained, “have a higher
tendency to be attempted with fraud purchases.” Based on store
surveillance footage, Target’s investigators identified three
individuals who regularly picked up and returned the suspicious
orders. Target’s investigators then compiled the results of their
investigation into a summary spreadsheet, which, according to
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4 Opinion of the Court 20-10301
Glitsos, “la[id] out every order, return, and then purchase using a
gift card” that Target’s investigators tracked.
Specifically, the summary spreadsheet tracked every
fraudulent transaction identified by Target’s fraud team—listing
the fake name used, the store location, and, in some cases, still
images from surveillance footage of the pickups and returns.
Target investigators also compiled the underlying evidence into
electronic folders based on the fake names used by the suspects.
For example, one folder titled “Mark Solomons” detailed 37 orders
where “Mark Solomons” was used as an alternate pickup name.
And the underlying surveillance footage in that folder featured
numerous videos of a man resembling Vozniuk making in-store
pickups and returns.
During Glitsos’s testimony, the government moved to
admit into evidence a disk containing both the underlying
documentary and video evidence and the summary spreadsheet.
Glitsos testified that the video footage was recorded live, that the
recordings and other records were kept in the regular course of
Target’s business, and that the summary spreadsheet was a
compilation of those business records. One of Vozniuk’s
codefendants objected to the spreadsheet for “lack of foundation.”
The government responded that the underlying evidence was
admissible as business records under Federal Rule of Evidence 803
and that the spreadsheet was a summary chart of voluminous
business records admissible under Federal Rule of Evidence 1006.
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20-10301 Opinion of the Court 5
The court overruled the objection, and the summary spreadsheet
and underlying business records were admitted into evidence.
The prosecutor then published the summary spreadsheet so
that the jury could see it, and Glitsos walked the jury through the
spreadsheet and some of the underlying evidence. Although the
summary spreadsheet referred to the codefendants only as Subjects
1, 2, and 3, Glitsos identified the suspects by their real names in his
testimony, immediately after which Vozniuk’s counsel objected on
hearsay grounds. The court sustained the objection.
The government also called Logan Workman, a special
agent with the United States Secret Service, as a witness.
Workman testified that law enforcement arrested three suspects
based on information given to them by Target. After the arrests,
agents searched Vozniuk’s codefendants Denis and Igor Grushko’s
house (the “Grushko residence”) where they recovered holograms
for making fake government ID cards, blank plastic white cards,
and multiple fake IDs. According to Workman, several fake IDs
featured Vozniuk’s picture and bore the name “Mark Solomons”
or “Neha Kapila.” The government entered the fake IDs into
evidence.
In addition to the ID cards, agents also recovered a laptop
and external hard drive from the Grushko residence, which
contained instruction manuals on how to commit credit card fraud
and a document listing various credit card numbers. The computer
also contained spreadsheets created by the defendants listing
fraudulent transactions, including the fake name used for the third-
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6 Opinion of the Court 20-10301
party pickup. These names matched the ones seen on the fake IDs
recovered at the Grushko residence, including the name “Mark.”
At the close of the government’s evidence, Vozniuk moved
for a judgment of acquittal under Federal Rule of Criminal
Procedure 29, which the court denied, and all three defendants
rested without presenting evidence.
The next morning, the jury found Vozniuk guilty on both
counts, and the court sentenced him to 27 months’ imprisonment
and three years of supervised release.
After sentencing, Vozniuk’s codefendants filed a motion for
new trial and a renewed motion for judgment of acquittal
challenging the sufficiency of the evidence against them, both of
which Vozniuk joined. The court denied these motions. Vozniuk
timely appealed.
II. Discussion
As an initial matter, we note that originally the main issue
on appeal was that the government’s first and primary witness at
trial, Alexandros Glitsos, Target’s fraud investigator, never swore
an oath before testifying. And it remained the main issue at oral
argument. But five months after the record on appeal was certified
and transmitted to our Court, the district court corrected the trial
transcript to reflect that Glitsos was, in fact, sworn as a witness.
The corrected transcript was docketed by the district court nearly
11 months before oral argument. And despite both parties
representing to this Court (in their briefs) that Glitsos was
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20-10301 Opinion of the Court 7
unsworn, neither party told this Court about the correction. It was
not until Vozniuk’s rebuttal at oral argument—after the
government spent much of its time at argument discussing the oath
issue—that Vozniuk’s counsel informed the Court of the corrected
transcript. Better late than never, but unacceptable, nonetheless.
We remind counsel that it is their duty to inform the Court when
they first become aware that factual representations previously
made in their briefs are now false and when the record on appeal is
inaccurate.
See Fla. Rules of Pro. Conduct R. 4-3.3(a)(1) (“A lawyer
shall not knowingly . . . fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer.”).
Turning to the issues remaining on appeal, Vozniuk
challenges the admissibility of Target’s summary spreadsheet on
three grounds: (1) that it was not properly admitted as a summary
of admissible business records under Federal Rules of Evidence
803(6) and 1006 because it was an inherently untrustworthy
investigative report and therefore hearsay;1 (2) that it contained
1 Federal Rule of Evidence 1006 permits a party to use a summary or chart “to
prove the content of voluminous writings, recordings, or photographs that
cannot be conveniently examined in court.” Fed. R. Evid. 1006. And a record
of an event that otherwise would be inadmissible hearsay is admissible as a
“business record” if: (1) it was made at or near the time of the event by
someone with knowledge of it; (2) it was kept in the course of a regularly
conducted business activity; (3) making the record was a regular practice of
that activity; and (4) those conditions are shown by the testimony of the
custodian of the records or another qualified witness. Fed. R. Evid. 803(6).
However, business records made in anticipation of litigation are not
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8 Opinion of the Court 20-10301
testimonial statements and was therefore inadmissible under the
Sixth Amendment’s Confrontation Clause;2 and (3) that its
admission violated the Best Evidence Rule,
see Fed. R. Evid. 1002.3
He also contends that the evidence was insufficient to establish his
guilt beyond a reasonable doubt. We disagree and affirm.
(a)
Evidentiary Issues
Because Vozniuk failed to raise any of his evidentiary
objections at trial, we review them only for plain error.4
United
admissible under Rule 803(6).
Melendez-Diaz v. Massachusetts, 557 U.S. 305,
321–22 (2009).
2 The Confrontation Clause prohibits the introduction of out-of-court
testimonial statements unless the declarant is unavailable to testify, and the
defendant had a prior opportunity to cross-examine the declarant.
Crawford
v. Washington, 541 U.S. 36, 68 (2004). A statement is testimonial if it is “made
under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.”
Id. at 52
(quotation marks omitted).
3 Federal Rule of Evidence 1002 provides that “[a]n original writing, recording,
or photograph is required in order to prove its contents unless these rules or a
federal statute provides otherwise.”
4 At trial, Vozniuk’s codefendant did object to Target’s summary spreadsheet,
but simply for “lack of foundation.” And none of the codefendants raised any
of the specific evidentiary issues Vozniuk challenges on appeal. Accordingly,
Vozniuk failed to preserve these issues for ordinary appellate review.
See
United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (noting that a
party “must raise an objection that is sufficient to apprise the trial court and
the opposing party of the particular grounds upon which appellate relief will
later be sought” (quotation omitted));
see also Fed. R. Crim. P. 51(b)
(instructing parties to preserve claims of error “by informing the court—when
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20-10301 Opinion of the Court 9
States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019). We also
review an alleged violation of the Confrontation Clause only for
plain error if the defendant failed to raise the issue at trial.
United
States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013).
On plain error review, we will not correct an unpreserved
error unless the district court’s error (1) was plain, (2) affected the
defendant’s substantial rights, and (3) seriously affected the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020). “An
error is plain if . . . the explicit language of a statute or rule or
precedent from the Supreme Court or this Court directly resolv[es]
the issue.”
Id. (quotation omitted) (alteration in original). An error
affects a defendant’s substantial rights “if there is a reasonable
probability of a different result absent the error,”
United States v.
Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015), which means “a
probability sufficient to undermine confidence in the outcome,”
United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005)
(quotation omitted). And it is the defendant’s burden to establish
such a probability.
United States v. Margarita Garcia, 906 F.3d
1255, 1267 (11th Cir. 2018). Because Vozniuk has failed to establish
that the admission of the summary spreadsheet affected his
substantial rights, we affirm his convictions.
the court ruling or order is made or sought—of the action the party wishes to
take, or the party’s objection to the court’s action
and the grounds for that
objection” (emphasis added)).
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10 Opinion of the Court 20-10301
We need not decide here whether the district court
committed a “plain” error in admitting the Target spreadsheet (on
hearsay, Confrontation Clause, or “best evidence” grounds)
because Vozniuk has not established “a reasonable probability of a
different result” absent the alleged error, and his claim therefore
fails the “substantial rights” prong of the plain error inquiry.
See
Hesser, 800 F.3d at 1325, 1327. That is because the remaining
evidence at trial—not challenged by Vozniuk—established his
participation in the conspiracy and supported, rather than
undermined, the jury’s verdict. This incriminating evidence
included, among other things: dozens of videos and photographs
taken from store surveillance footage showing a man resembling
Vozniuk picking up and returning items at various Target stores;
Target receipts tracking those exchanges; fake identification cards
bearing Vozniuk’s image and listing names such as “Mark
Solomons” and “Neha Kapila”; and the Grushkos’ spreadsheet,
which documented specific instances of fraud committed by
“Mark.” Accordingly, Vozniuk has failed to show that the
admission of the spreadsheet affected his substantial rights, and his
claim fails.
(b)
Sufficiency of the Evidence
Vozniuk also contends that the evidence was insufficient to
support the jury’s verdict. We review
de novo a challenge to the
sufficiency of the evidence supporting a conviction, viewing the
evidence in the light most favorable to the jury’s verdict to
determine “whether a reasonable jury could have found the
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20-10301 Opinion of the Court 11
defendant guilty beyond a reasonable doubt.”
United States v.
Gamory, 635 F.3d 480, 497 (11th Cir. 2011) (quotation omitted).
To obtain a conviction under 18 U.S.C. § 1029(a)(2), the
government must prove that the defendant: “(1) ‘knowingly’ used
‘one or more unauthorized access devices,’ (2) ‘with intent to
defraud,’ (3) to obtain anything having an aggregate value of
‘$1,000 or more’ during a one-year period, and (4) such use
‘affect[ed] interstate or foreign commerce.’”
United States v. Klopf,
423 F.3d 1228, 1240 (11th Cir. 2005) (footnote omitted) (quoting 18
U.S.C. § 1029(a)(2)). Section 1029(e)(3) defines “unauthorized
access device” as any access device that is “lost, stolen, expired,
revoked, canceled, or obtained with intent to defraud.”
Id. §
1029(e)(3). Section 1029(e)(1) defines “access device” as any “card,
plate, code, account number, electronic serial number, mobile
identification number, personal identification number, or . . . other
means of account access that can be used, alone or in conjunction
with another access device, to obtain money, goods, services, or
any other thing of value.”
Id. § 1029(e)(1).
To prove a conspiracy under 18 U.S.C. § 1029(b)(2), the
government must prove the existence of a conspiracy to commit
an offense under § 1029(a) and the defendant’s knowing and
voluntary participation in the conspiracy.
See United States v.
Delva, 922 F.3d 1228, 1246 (11th Cir. 2019). To establish knowing
and voluntary participation, the government must show that the
defendant “knew the essential nature of the conspiracy.”
United
States v. Garcia, 405 F.3d 1260, 1269–70 (11th Cir. 2005).
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Participation in a conspiracy may be established by “direct or
circumstantial evidence, including inferences from the conduct of
the alleged participants or from circumstantial evidence of a
scheme.”
Id. at 1270.
The district court did not err in finding that the evidence was
sufficient to sustain Vozniuk’s convictions under 18 U.S.C.
§ 1029(a)(2) and (b)(2) because the evidence presented at trial
authorized a rational jury to find him guilty beyond a reasonable
doubt for the same reasons set forth above in response to his
challenges to the admission of evidence. First, the jury could have
reasonably inferred that Vozniuk was involved in the Grushkos’
scheme to defraud Target based on the fake identifications bearing
his photo that federal investigators found at the Grushkos’
residence. Second, the false names on those fake identifications
also appeared in a spreadsheet found on the Grushkos’ laptop,
which tracked the group’s fraudulent activities and enabled the
jury to infer that Vozniuk made illegal purchases and returns under
assumed names. Third, the videos and photographs from Target’s
store surveillance footage, which showed a man resembling
Vozniuk making purchases and returns at various Target stores
under the same names recorded in the Grushkos’ spreadsheet,
added another link between Vozniuk and specific fraudulent
transactions. Taken together, this unrebutted evidence was
sufficient to support the jury’s verdict that Vozniuk fraudulently
used an unauthorized access device and conspired to commit
access-device fraud. Accordingly, we affirm Vozniuk’s convictions.
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AFFIRMED.
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