United States v. Grushko

50 F.4th 1

UNITED STATES of America, Plaintiff-Appellee,

v.Igor GRUSHKO, Denis Grushko, Defendants-Appellants.

No. 20-10438

United States Court of Appeals, Eleventh Circuit.

Filed: September 23, 2022

Phillip Drew DiRosa, U.S. Attorney's Office, Fort Lauderdale, FL, Scott Dion, Laura Thomas Rivero, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL, for Plaintiff-Appellee.

Charles Garret White, Charles G. White, PA, Ft. Lauderdale, FL, for Defendant-Appellant Igor Grushko.

Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL, Margaret Y. Foldes, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant-Appellant Denis Grushko.

Before Jordan, Jill Pryor, and Marcus, Circuit Judges.

Marcus, Circuit Judge:

Brothers Igor Grushko and Denis Grushko (the "Grushkos") appeal their convictions and the ensuing sentences on multiple counts arising out of their conspiracy to commit access device fraud. The Grushkos and a coconspirator, Vadym Vozniuk, used stolen credit-card information to fraudulently obtain high-value electronic goods from Target Corporation ("Target"). To carry out the scheme and avoid detection, they purchased ordinary household items on Target.com with the stolen credit-card information; designated the orders for pickup and authorized non-existent third parties to pick up the merchandise; displayed fake drivers’ licenses bearing the names of these third parties to make the pickups; returned the items in exchange for Target gift cards; and ultimately redeemed the gift cards for high-value electronics. By the time a federal grand jury indicted the conspirators, they had made off with over $110,000 in fraudulently acquired merchandise. After a jury trial, both Denis and Igor were convicted on all counts, and they each received a 145-month total sentence for their fraudulent scheme.

On appeal, the Grushkos argue that: (1) law enforcement agents violated their Fourth Amendment rights by illegally entering their house after arresting them, rendering the subsequent search conducted after obtaining a search warrant illegal; (2) the district court impermissibly lowered the government's burden of proof during voir dire, warranting a new venire panel; (3) the district court erred in applying two-level enhancements to their base offense levels for possessing device-making equipment; (4) the district court erred in applying two-level aggravating-role enhancements; (5) their total sentences were procedurally unreasonable because the district court failed to adequately explain their sentences, it erroneously miscalculated the loss amounts at issue and it erroneously applied two-level obstruction of justice enhancements; and, finally, (6) their sentences, overall, were substantively unreasonable.

After thorough review of the record and with the benefit of oral argument, we affirm.

I.

In late 2017, Target's fraud prevention team met with a United States Secret Service agent, Logan Workman, to brief the government about a fraud scheme that was directed at Target's South Florida stores. Target investigators explained the workings of the scheme to Agent Workman, detailing how a group of conspirators had been using stolen credit-card information, fake drivers’ licenses, and a system of purchases and returns in order to fraudulently obtain high-end electronics from Target. The investigators also gave Workman surveillance footage that captured the license plate number of a vehicle the suspects had used to commit the fraud. Agent Workman traced the license plate number to Sixt Rental Car. A fraud investigator at Sixt gave Workman documentation showing that Igor Grushko had rented the vehicle in question and had supplied Sixt with his home address. The agent ran a drivers’ license check and confirmed the address as Igor's. He further learned that Denis Grushko lived at the same home address as Igor and that Vozniuk lived next door.

While Workman awaited the suspects’ indictment, he conducted periodic surveillance of their neighboring homes. He observed and took photographs of "some person" outside of the Grushkos’ house, but he could not determine "with [ ] certainty" if "that was Igor Grushko, Denis Grushko, or Vadym Vozniuk, or another roommate that could have been possibly there as well." In November 2018, a federal grand jury sitting in the Southern District of Florida returned a three-count indictment against the Grushkos and Vozniuk, charging all three men with conspiring to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2) (Count 1), and charging Igor and Vozniuk with using unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2) (respectively, Counts 2 and 3).

After the indictment was returned, the district court issued arrest warrants for the Grushkos and Vozniuk. In preparation for the execution of the warrants, Agent Workman created an operational plan that specified the team of agents chosen for the operation, the targets’ biographical information, and photographs of the targets. For Igor, Workman attached a photograph obtained from Igor's Florida driver's license records -- a source the agents "always use" for their operational plans because a driver's license photograph best depicts a suspect's facial features. For Denis, Agent Workman attached two photos, one from social media and the other from Target's surveillance footage, because Denis did not have an available Florida driver's license photograph.

At 5:30 a.m. on the day of the arrest, Workman met with the arrest team -- none of whom had been involved in Workman's prior investigation into the scheme -- to distribute the operational plan and "go over photographs" of the targets. Two agents were then sent to conduct "presurveillance" at the Grushkos’ home, in part to ensure that, if the Grushkos were to leave, the agents could follow and arrest them. Upon arrival, the agents reported that "two unknown males" were outside the residence smoking cigarettes. They could not positively identify either man.

At around 6:00 a.m., the remainder of the arrest team headed over to the residence and, upon arrival, "confronted the two unknown males out front." As the team approached the men, they announced, "Police. Police. Let me see your hands. Police. Get on the ground." The team detained the men and "asked over and over again what their names were," but the men refused to comply and instead laughed and asked for a lawyer. According to the defendants, the agents then patted them down, removed their wallets and cell phones, and placed the items on the curb. When the agents demanded the code to the padlocked door of the house, the men replied that they did not recall the passcode.

Although it turns out the men were, in fact, the Grushkos, Agent Workman later explained that he was not "a hundred percent certain" of their identities at the time because he had never seen either Igor or Denis in person. As for Igor, specifically, Workman noted that his appearance differed from his driver's license, "[b]ecause the hair on Igor Grushko was a lot longer" on the day of his arrest.

After the unknown men refused to cooperate and the arrest team was unable to positively identify them, the agents knocked on the padlocked front door and announced their presence. Agent Workman testified that the agents heard "voices and noise" coming from inside the house, but no one opened the door. Suspecting that the Grushkos or possibly Vozniuk may be inside, the agents pried the door open to gain entry into the home. "[A]t th[at] point," the team still had not located all of the targets so the agents conducted a protective sweep. During the sweep, they discovered in plain view in a bedroom credit-card skimming devices and other "access device making equipment." The agents secured the residence and later obtained a search warrant based in part on the items observed in plain view during the protective sweep.

During the search that followed, the agents seized a wide variety of evidence, leading to additional charges in a nine-count superseding indictment. The new charges against Denis and Igor included possession of fifteen or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 4); possession of device-making equipment, in violation of 18 U.S.C. § 1029(a)(4) (Count 5); production of a false identification document, in violation of 18 U.S.C. § 1028(a)(1) (Count 6); and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 7–9).

After a three-day trial, the jury found Denis and Igor Grushko guilty on all counts. Following a sentencing hearing, the district court sentenced each man to a total of 145 months’ imprisonment (24 months’ imprisonment total for the aggravated identity theft counts, consecutive to the 121 months’ imprisonment total for the remaining counts), along with 3 years of supervised release, $122,383.36 in restitution (shared jointly and severally amongst the defendants), and a special assessment.¹

This timely appeal followed.²

II.

We review a district court's denial of a motion to suppress under a mixed standard, reviewing the trial court's factual findings for clear error and its application of the law to those facts de novo . United States v. Lewis , 674 F.3d 1298, 1302–03 (11th Cir. 2012). We review the legal correctness of a jury instruction de novo , but we defer to the district court on questions of style and phrasing absent an abuse of discretion. United States v. Prather , 205 F.3d 1265, 1270 (11th Cir. 2000) ; Farley v. Nationwide Mut. Ins. Co. , 197 F.3d 1322, 1329 (11th Cir. 1999). Meanwhile, we review a "district court's determination whether to strike an entire jury panel for manifest abuse of discretion." United States v. Trujillo , 146 F.3d 838, 842 (11th Cir. 1998).

When it comes to sentencing issues, we review de novo a claim that the district court double counted enhancement levels. United States v. Little , 864 F.3d 1283, 1291 (11th Cir. 2017). However, if a...