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United States v. Mussayek

August 6, 2003

UNITED STATES OF AMERICA
v.
ALEX MUSSAYEK, A/K/A TSION MUSSAYEK, A/K/A ALEXANDER MUSSAYEL, A/K/A ALEXANDER MUSSYEV TSION "ALEX" MUSSAYEV, APPELLANT



On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 00-cr-00180) District Judge: Honorable Anne E. Thompson

Before: Sloviter, Rendell and Stapleton, Circuit Judges.

The opinion of the court was delivered by: Rendell, Circuit Judge

As amended August 28, 2003.

UNITED STATES OF AMERICA
v.
ALEX MUSSAYEK, A/K/A TSION MUSSAYEK, A/K/A ALEXANDER MUSSAYEL, A/K/A ALEXANDER MUSSYEV TSION "ALEX" MUSSAYEV, APPELLANT

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 00-cr-00180) District Judge: Honorable Anne E. Thompson

Chester M. Keller, Esq. [argued] Andrea D. Bergman, Esq. Office of Federal Public Defender 972 Broad Street Newark, NJ 07102 Counsel for Appellant

George S. Leone, Esq. Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102

Thomas Ott, Esq. [argued] United States Department of Justice Organized Crime & Racketeering Section 1301 New York Avenue, N.W., Room 715 Washington, DC 20005 Counsel for Appellee

Before: Sloviter, Rendell and Stapleton, Circuit Judges.

The opinion of the court was delivered by: Rendell, Circuit Judge

PRECEDENTIAL

Argued February 3, 2003

OPINION OF THE COURT

Alex Mussayek *fn1 appeals from the final judgment of conviction and sentence entered against him by the District Court on March 27, 2002, after he was found guilty by a jury of one count each of conspiracy to commit extortion and interstate travel in aid of racketeering. We will affirm.

FACTS

Alex Mussayek emigrated from Israel to the United States in 1979. He settled in Brooklyn with his family, and established himself as owner of a small flower and candy business. Over several years, Mussayek was apparently victimized by two individuals, Ike Fogel and Phillip Ben Jacob, in separate scams. Mussayek claims to have been first defrauded by Fogel in a transaction involving $400,000 worth of "diamonds," which apparently later turned out to be nothing but cubic zirconia. Attempting to recoup his losses, Mussayek then apparently committed $140,000 to a partnership with Ben Jacob, which ultimately dissolved with Ben Jacob refusing to return any of Mussayek's investment.

Mussayek's brief depicts a persevering immigrant trying to live out "the classic American dream," struggling to make a living and support his family while being swindled by two supposed "friends" of over $500,000. Not surprisingly, the government paints a very different picture of Mussayek, as a deal maker involved in a variety of illicit ventures who sought the help of undercover agents — who he thought were "Italian Mafioso" — in connection with several of them. Most relevant to this appeal, Mussayek enlisted two agents to assist with a plan carried out with another business associate, Joseph Aharanoff, to extort money from Ben Jacob and Fogel in furtherance of Mussayek's "deep commitment," as Mussayek has termed it, to recover his money.

Following the undercover investigation, Mussayek and Aharanoff were indicted on charges of conspiracy to commit extortion against Ben Jacob and Fogel.*fn2 Pursuant to an agreement with the government, Aharanoff pled guilty and testified against Mussayek. At trial, the jury heard extensive evidence relating to the conspiracy, including numerous tape recorded conversations between Mussayek and the agents, as well as the testimony of Aharonoff, Mussayek himself, and both of the undercover agents, Zyckowski and Calvarese. Aharonoff and the two agents testified consistently that Mussayek was outraged and preoccupied with the supposed betrayal by Fogel and Ben Jacob and was determined that the agents should, if necessary, break their legs or kill them. In addition, they testified that Mussayek wanted to double his money or obtain $1 million from Fogel, and was prepared to kidnap his daughter. Mussayek warned the agents that Ben Jacob had guns with silencers and agreed to pay them twenty-five percent of their recovery, giving them a $5,000 down payment. The jury further heard that Aharanoff had once traveled to Israel, where he was later joined by Mussayek, in an effort to locate Fogel, and that subsequently Aharanoff and Agent Calvarese were on their way to Israel to "complete Mussayek's mission" when they were stopped by the Federal Bureau of Investigation at the John F. Kennedy International Airport in New York.

Ultimately, the jury found Mussayek guilty of conspiracy to commit extortion and interstate travel in aid of racketeering. On appeal Mussayek levels eight challenges to the District Court's handling of his trial and sentencing. We will focus on three of his claims, all related to his sentencing, as the remainder are fairly straightforward and will be addressed briefly in the margin.*fn3

The Pre-Sentence Report recommended, and the government argued, that Mussayek's base offense level should be enhanced two levels under U.S.S.G. § 2B3.2(b)(1), because it "involved an express or implied threat of death, bodily injury, or kidnapping." Mussayek objected, stating, "This enhancement presumes that the victim in fact received a threat.... [N]o reasonable threats were ever communicated to any purported 'victim' and thus the enhancement cannot apply." Addendum to Pre-Sentence Report, p. 18, ¶ 2.

Mussayek similarly objected to another proposed enhancement, under U.S.S.G. ยง 2B3.2(b)(3)(B), for "preparation to carry out a threat of... serious bodily injury." Mussayek contended that he told the agents to talk to Fogel and Ben Jacob "nicely," stating at one point, "Talk to him nicely everything, I don't wanna kill the guy, I ...


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