United States v. Krivoi

80 F.4th 142

UNITED STATES of America, Appellee, v. Mark KRIVOI, aka Igor, Defendant-Appellant,Ruslan Reizin, aka Russel, Defendant.^*

Docket No. 21-1439

August Term, 2022

United States Court of Appeals, Second Circuit

Argued: January 10, 2023

Decided: August 22, 2023

Richard M. Langone, Langone & Associates, PLLC, Garden City, NY, for Defendant-Appellant;

Jonathan Siegel (Susan Corkery and Michael W. Gibaldi, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: Jacobs, Sack, and Nathan, Circuit Judges.

Jacobs and Sack, Circuit Judges:

Defendant-Appellant Mark Krivoi was convicted in the United States District Court for the Eastern District of New York (Vitaliano, Judge) of kidnapping and kidnapping conspiracy in violation of 18 U.S.C. § 1201, and attempted extortion and extortion conspiracy in violation of 18 U.S.C. § 1951.¹ Krivoi argues on appeal that we must vacate the kidnapping and kidnapping conspiracy convictions because: The victim's detention was too brief to constitute kidnapping under section 1201; Krivoi lacked the intent required to violate section 1201; and the district court violated Krivoi's constitutional rights by preventing him from cross-examining the victim about any connections that the victim's family may have had to the Federal Bureau of Investigation. For the reasons that follow, we affirm.

BACKGROUND

I. Factual Background

Because Krivoi "appeals his convictions following a jury trial, 'our statement of the facts views the evidence in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.' " United States v. Dhinsa, 243 F.3d 635, 643 (2d Cir. 2001) (quoting United States v. Salameh, 152 F.3d 88, 107 n.1 (2d Cir. 1998) (per curiam)).

Mark Krivoi's convictions arose from a series of events involving his cousin, Ruslan Reizen, who ran a Brooklyn-based power-washing company called Whiterock Cleaning Services.² In mid-2016, Reizen hired Daniil Buriev as a salesman for Whiterock "on one condition: that Buriev promise he would never steal Reizin's customers." Appellant's Br. at 2. A few months later, Buriev left Reizin's company to start his own store-front power-washing business. Buriev's business offered services similar to those that Reizin's company offered but often at cut-rates.

Reizin eventually learned of Buriev's competing business. On May 22, 2017, he called Buriev, leaving at least two threatening voicemails. In the first, Reizin stated that he had "a big problem" with Buriev—"a serious situation";³ the second demanded a call back lest Reizen "set [Buriev] up and create different problems." Gov't's App'x at 18. Buriev testified that the messages left him terrified. See id. ("[M]y hands were literally, like, shaking. I was really like scared, like just scared.").

Buriev's fear was reinforced by the fact that Reizin had previously told Buriev that Reizin had connections to a motorcycle gang called "Bratva." Gov't's App'x at 18-19. Buriev testified at trial that "Bratva" is Russian for "Brotherhood" and that Reizin had described it as a motorcycle gang that had "people who do the dirty job[s]." Id. at 6-7. Buriev understood Reizin to mean that Bratva had enforcers who used physical force on behalf of others.

Buriev nevertheless returned Reizin's calls later that day. During the course of one conversation, Reizin told Buriev that he had "a couple of . . . crippled people like" Buriev and that Buriev and Reizin had "to meet and seriously resolve the issue, otherwise it w[ould] be real fucking horrendous." Gov't's App'x at 34; see also id. (Reizin: "I fucking respected you until now. Until you fucking started to steal from me in this way."). But Reizin also assured Buriev that he "just want[ed] to talk"; if Reizin had decided he had to cripple Buriev, Reizin "would have done it differently." Id.

Buriev and Reizin agreed to meet that evening at "Masal Cafe,"⁴ Gov't's App'x at 35, a restaurant located on Emmons Avenue, the east-west highway that runs along the north side of the bay and through the Sheepshead Bay neighborhood in Brooklyn, New York. The neighborhood, located in the south of the borough, is on the north shore of a small Jamaica Bay/Atlantic Ocean inlet with the same name: Sheepshead Bay.⁵ Reizin lived there, not far from the café.

Some hours before the meeting, Reizin called Krivoi, a cousin with whom he had once studied martial arts, and asked Krivoi to attend the meeting. At trial, a cell-site expert testified that the relevant records placed Krivoi's and Reizin's cell phones together on that day at about 11:00 AM at an address to which Krivoi had registered his truck on Flatlands Avenue, a street in Brooklyn that is north of Sheepshead Bay. Krivoi agreed to join Reizin's meeting with Buriev later that day.

That evening, Buriev went to Masal Cafe and waited inside for Reizin to show up. Reizin then drove his van to the café, with Krivoi following in a truck.

After Reizin arrived at Masal, he telephoned Buriev and told him to come outside. Buriev said that he did not feel safe going outside and asked Reizin to meet inside instead. Reizin declined, threatening that if Buriev did not come out, Reizin would come inside and "cut [Buriev's] neck." Gov't's App'x at 39.

Buriev reluctantly agreed. He left the restaurant and joined Reizin at his van. Reizin ordered Buriev to get in Krivoi's truck rather than the van. Despite never having met Krivoi before, Buriev followed Reizin's orders and walked to the truck: Buriev asked to sit in the passenger seat. Without otherwise responding, Krivoi moved a stack of papers from the front seat to the back so that Buriev had room to sit. When Buriev was seated, Reizin drove east along Emmons Avenue as Buriev and Krivoi followed. Krivoi and Reizin discussed where they were headed on their mobile phones as they drove.

Roughly a mile east of the restaurant, they stopped in the public parking lot of a park. Reizin left his vehicle, instructed Buriev to get out of Krivoi's truck, and then placed Buriev in a "headlock." Gov't's App'x at 43. Krivoi stood closely behind Buriev as Reizin continued his grip. See id. (Buriev: "[Krivoi] was staying right behind me, literally like inches, millimeters. He was just walking, walking behind me like breathing like really heavily, like aggressively.").

According to Buriev, because there were people fishing at a nearby beach, Reizin walked Buriev to a more secluded location in the park that was surrounded by trees. Krivoi continued to follow closely behind. During the walk, Reizin accused Buriev of stealing from Reizin and Bratva by starting his competing power-washing business. Reizin also described Krivoi as a Bratva "soldier." Gov't's App'x at 45-46.

When the three men arrived at the secluded area, Reizin brandished a roughly 30-centimeter knife. Reizin said that Buriev owed Reizin and Bratva $10,000 and that Buriev had to pay up. Buriev said he simply did not have the money. Reizin obligingly reduced the demand to $5,000. Buriev replied that he could not pay that much either. Reizin told Krivoi "da-vai," which, Buriev testified, is Russian for "[g]o" or "[d]o it." Gov't's App'x at 50. Krivoi then punched Buriev some seven or eight times and continued with the beating even after Reizin told him to stop.

When Krivoi eventually relented, Buriev agreed to Reizin's demand that he pay Reizin something. Reizin told Buriev that he would be expected to pay Reizin a small sum every month until Buriev's "debt" was paid. Krivoi proposed that they bury Buriev at the secluded location, but Reizin said that killing Buriev was not necessary since Buriev would keep quiet. Reizin also threatened to punish Buriev's family if Buriev went to the police.

The three men then walked back to the parking lot. Buriev asked to walk home but Reizin refused to let him do so. Gov't's App'x at 54 (Buriev: "I said, I really want to walk. Can I walk? [Reizin] said, No, you cannot. We'll drop you off where we picked you up."). Buriev got back into Krivoi's truck, and they followed Reizin back to Masal Cafe.

When they got there, Reizin again put Buriev in a headlock. Then, releasing Buriev, he told Buriev to keep walking without looking back. Krivoi and Reizin drove away soon afterwards. Cell-site information suggests that Krivoi, Reizin, and Buriev were together in their trip from the restaurant to the park and back to the restaurant from about 8:00 PM to 8:29 PM on the day of the events in issue.

Buriev later consulted a lawyer who told him that going to the police would result in Reizin's arrest and temporary detention. But the lawyer also said that Reizin would be released within a day or two, which would pose an obvious danger to Buriev. Buriev sought help from the Federal Bureau of Investigation instead. An FBI agent told Buriev to pay Reizin as agreed while the FBI surveilled the transactions.

In later phone conversations, Reizin continued to threaten Buriev: "What, do you think that you are the only one who quit and started working on your own? Over my 15 years in this business, what do you think? Some were squashed with baseball bats, but some are still working . . . ." Gov't's App'x at 69.

Krivoi was not present when Buriev paid Reizin. There is also no evidence that Krivoi received any portion of any payment for himself. Even though Reizin had indeed once been a Bratva member, the FBI found no evidence, other than Reizin's statements to Buriev, that Krivoi had ever been a part of Bratva.

II. Procedural History

On November 29, 2017, the government issued a criminal complaint⁶ charging Krivoi and Reizin with extortion in violation of 18 U.S.C. § 1951. On February 26, 2018, a grand jury in the Eastern District of New York returned a four-count indictment against Reizin and Krivoi, charging both with: Kidnapping in violation of 18 U.S.C. § 1201(a)(1); kidnapping conspiracy...