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United States v. Pojilenko

July 27, 2005

UNITED STATES OF AMERICA
v.
EVGUENI POJILENKO A/K/A EUGENE, A/K/A ZHEKA EVGUENI POJILENKO, APPELLANT



On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. Action No. 02-cr-00254-2) District Judge: Hon. R. Barclay Surrick.

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

PRECEDENTIAL

Argued June 7, 2005

BEFORE: AMBRO, STAPLETON, and ALARCON,*fn1 Circuit Judges

OPINION

Appellant Evgueni Pojilenko challenges both his conviction and sentence. First, Pojilenko maintains he was deprived of a fair trial as a result of the admission into evidence of certain references to organized crime. Because we find that the District Court did not commit plain error in allowing the challenged testimony, we will affirm Pojilenko's judgment of conviction. Second, Pojilenko challenges his sentence pursuant to United States v. Booker, 125 S.Ct. 738 (2005). We will vacate Pojilenko's sentence and remand for resentencing in accordance with Booker.

I.

From 1999 to 2002, Pojilenko was involved in a criminal enterprise known as the "KGB," an organization led by Leonid Chernyak that committed various crimes including robbery, extortion, fraud, and drug trafficking. Pojilenko served, in common parlance, as "muscle" for the organization.

In December 2000, Chernyak devised a scheme to rob several potential drug purchasers. Two women attempted to purchase 200 pills of ecstacy. One of the women knew a drug dealer named "Greek John," who told them that he had a source in Philadelphia who could supply the drugs. That source was a KGB associate, 16 year old Leonid Kadomsky. Kadomsky sought to broker the ecstacy sale between Greek John and the KGB.

Chernyak instead decided that the KGB would rob the two women and Greek John when they appeared with the money to buy the drugs. Chernyak planned the robbery, recruited Pojilenko and another man, Kitiashvili, to rob the purchasers, and later instructed them on how to divide the money. Cherynak had Kadomsky detain the robbery victims until Pojilenko and Kitiashvili arrived and physically robbed the individuals.

In April 2002, a federal grand jury indicted Pojilenko on 48 counts of RICO and RICO conspiracy. Racketeering acts 8A, 8B and 8C charged Pojilenko with robbery and conspiracy to rob during the above-described incident.

At trial, the District Court allowed the following background testimony:

(1) Agent Kepple of the FBI testified that he was assigned to the organized crime squad and had been previously assigned to ...


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