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United States v. Zakharyan

United States District Court, D. Maryland, Northern Division

April 9, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
NIKOLAY ZAKHARYAN, et al., Defendants.

MEMORANDUM OPINION

WILLIAM D. QUARLES, Jr., District Judge.

Nikolay Zakharyan ("N. Zakharyan")[1] is charged with conspiracy to traffic in contraband cigarettes[2] and trafficking in contraband cigarettes.[3] ECF No. 214. Pending are N. Zakharyan's pretrial motions.[4] A hearing was held on April 2, 2015. ECF No. 243. For the following reasons, N. Zakharyan's motion to adopt pertinent co-defendant motions will be granted; all other motions will be denied.

I. Background

A. Facts[5]

1. Overview of the Crime

This case arises from a contraband cigarette[6] trafficking scheme allegedly involving N. Zakharyan and others. ECF No. 214.[7] In March 2009, the Baltimore County Police Department ("BCPD") received tips from two "concerned citizens" that businesses owned by three brothers - Elmar Rakhamimov, Timur Yusufov, and Salim Yusufov - had been engaging in criminal activity. ECF Nos. 209 at 2; 209-2 ¶ 35.[8] The concerned citizens reported that Healthway Pharmacy, owned by S. Yusufov, had been receiving and distributing FDA-banned drugs from Russia, and committing healthcare fraud. ECF No. 209 at 2.

In May 2009, a confidential informant ("CI #5631") told BCPD Detective Ryan Cooper that S. Yusufov obtained banned Russian medications from a source in New York and sold them at Healthway Pharmacy. Id. at 3. According to CI #5631, S. Yusufov had been billing Medicaid and Medicare for unfilled prescriptions. Id.

In July 2010, the FBI had a confidential human source ("CHS-1") approach S. Yusufov at Healthway Pharmacy to assess the scope of criminal activity. Id.; ECF No. 209-2 ¶ 40. On July 23, 2010, CHS-1 visited the pharmacy to fill prescriptions. ECF No. 209 at 4. CHS-1 asked S. Yusufov for Corvalol, an unapproved Russian drug, instead of one of his prescribed medications. Id. S. Yusufov gave CHS-1 Corvalol and billed Medicaid for the unfilled prescription. Id. [9]

On July 24, 2010, CHS-1 visited Europe Restaurant to develop personal ties with S. Yusufov. Id. S. Yusufov asked CHS-1 and his friends what they did for a living. Id. One friend replied that he was a jeweler; another that he was a real estate agent. Id. at 5. S. Yusufov asked CHS-1 if he was a "mobster." Id. CHS-1 replied, "[n]o, I'm just a businessman." Id. S. Yusufov said, I'm a businessman like you, " took CHS-1's phone number, and said they would be best friends. Id.

In August 2010, S. Yusufov gave CHS-1 the name of a physician who "would give him whatever he wants. " Id. Later that month, S. Yusufov asked CHS-1 what kind of business he was in. Id. CHS-1 replied, "Export-Import, " to which S. Yusufov responded, "What do you export? Tell me. We'll make some extra money." Id. CHS-1 said he would "talk to [him] later." Id.

On August 25, 2010, S. Yusufov told CHS-1 that he obtained Russian drugs from New York. Id. Over lunch, CHS-1 told S. Yusufov that he had been involved in trucking and loan sharking, but now has a source for Medicaid cards. Id. S. Yusufov responded that using fake Medicaid cards "was fraud, " but that "an easy fraud scheme" involved buying and selling prescription drugs for a profit. Id. When they next met, S. Yusufov told CHS-1 that using Medicaid cards was not a good idea, in part, "because they couldn't make big money.'" Id. S. Yusufov and CHS-1 discussed meeting later in the week; afterward, S. Yusufov called CHS-1 twice to arrange the meeting. Id.

On October 9, 2010, CHS-1 visited Europe Restaurant with his family while S. Yusufov was there. Id. at 6. When CHS-1 and S. Yusufov went outside to talk, S. Yusufov asked CHS-1 if he dealt in drugs. Id. CHS-1 stated that he dealt in alcohol and cigarettes, not drugs. Id. S. Yusufov told CHS-1 that he would introduce him to a "connected" figure in Baltimore's Russian community. Id. [10]

On October 15, 2010, S. Yusufov introduced CHS-1 to a liquor storeowner who wanted to buy untaxed alcohol. Id. When they left the store, S. Yusufov complained to CHS-1 about needing money. Id. S. Yusufov also told CHS-1 that his brother, E. Rakhamimov, had buyers for untaxed cigarettes and liquor. Id. S. Yusufov wanted to arrange a meeting with CHS-1 and E. Rakhamimov at Europe Restaurant the next day; however, S. Yusufov was concerned about maintaining his role as middle man. Id. at 6-7.

On October 19, 2010, CHS-1 and S. Yusufov met at Healthway Pharmacy and discussed contraband cigarette transactions. Id. at 7. S. Yusufov asked what brand of cigarettes CHS-1 would provide, and suggested that he had a New York buyer and that E. Rakhamimov had discussed becoming involved in the transactions. Id. Less than a week later, S. Yusufov told CHS-1 that he had another buyer for untaxed alcohol. Id.

On October 30, 2010, CHS-1 met S. Yusufov and E. Rakhamimov at Europe Restaurant to discuss cigarette and alcohol transactions. Id. E. Rakhamimov said he was interested in both, and asked CHS-1 for his phone number. Id. CHS-1 privately told S. Yusufov that he would receive a $200 kickback for each case of cigarettes CHS-1 supplied. Id.

On December 13, 2010, S. Yusufov told CHS-1 that he was ready to receive the cigarettes, and described another scheme involving bottled water. Id. S. Yusufov told CHS-1 "you need to engage in criminal activity in the U.S. in order to stay in business and make money." Id.

On February 18, 2011, CHS-1 visited Healthway Pharmacy to collect a prescription. Id. at 8. S. Yusufov asked him when they were going to do business together, and complained that people he had told about the cigarettes "were beginning to think he [was] a bullshitter.'" Id. Four days later, S. Yusufov again asked CHS-1 about the cigarettes; CHS-1 replied that "he had lost the ability to move the product, but that he was working on it." Id.

On July 14, 2011, CHS-1 told S. Yusufov that he was ready to begin the cigarette operation. Id. S. Yusufov asked for samples and said that his brother and another buyer were interested. Id.

On July 18, 2011, CHS-1 met S. Yusufov at Europe Restaurant. Id. According to S. Yusufov, E. Rakhamimov had lost interest in buying the cigarettes. Id. S. Yusufov asked if the cigarettes could be delivered to New York, and how much money he would make per case. Id. S. Yusufov also offered to introduce CHS-1 to someone who dealt in stolen or counterfeit watches. Id. at 8-9.

On August 17, 2011, S. Yusufov arranged a meeting between CHS-1 and a cigarette buyer. Id. at 9. The prospective buyer took samples of the cigarettes but never initiated any orders. Id.

On October 24, 2011, CHS-1 gave samples to S. Yusufov for another interested buyer. Id. On October 28, 2011, S. Yusufov told CHS-1 that the new buyer was very serious but wanted more samples. Id. S. Yusufov said that he wanted to buy 200 cases for the new buyer, which would be delivered to New York. Id. CHS-1 responded ...


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