Sunday, February 15, 2015


Richard Chichakli, who is appealing his conviction for violations of sanctions, has filed his initial brief, Pro Se, and for those readers who have been following the case, we shall list his Points on Appeal, together with a short summary of his argument on those points. Bureau of Prison records indicate that he has not yet been transferred to a Federal Correctional Institution, to serve out his five year sentence; he is most likely still in New York, at a pre-trial holding center.

The brief, which makes excessive use of capital letters, when seeking to add emphasis to specific statements, discusses several issues, after which I have added my own comments where relevant. The points are taken, verbatim, from the brief:

(1) The judgment should be vacated, because of ineffective assistance of a court-appointed stand-by counsel; he is blaming stand-by counsel for his conviction, though the appellant conducted his own defense. (His problem is that the role of such counsel is strictly limited, and does not rise to the level of that of an attorney retained or appointed to defend a client).

(2) The judgment should be vacated because the Court improperly admitted lay opinion as an expert opinion. (He objects to former IRS Agent Albert Monica's testimony, as he was unqualified.)

(3) The judgment should be vacated, an new trial ordered, by reason of jury misconduct. )There was juror bias, and some e-mail messages were passed between jurors).

(4) This Court should vacate the judgment because evidence admitted under rule 404(b) were [sic] used as basis for conviction. (Rule 404 deals with other criminal conduct, and his actions in Australia, where he lived under an alias, were brought out at trial).

(5) The Court erred in charging the jury, and highly prejudicial external material was introduced to the Jury. ( The appellant's concealment of his OFAC SDN status should not have been communication to the jury; at closing, his relationship with Viktor Bout, his nominal co-defendant, and Charles Taylor, were mentioned).

(6) The Government withheld discovery, in violation of Rule 16, and the Jencks Act (transcripts of government witness testimony or evidence used must be disclosed to the defense); he claims that Documents seized from his residence in the US were not produced in Discovery, and that it withheld Brady material, meaning evidence that establishes the innocence of the defendant, or which might reduce his punishment.

(7) Judgment should be vacated, and new trial directed, pursuant to Rule 60 (b)(3), and fraud on the Court, pursuant to Rule 60(d)(3); ( this one improperly cites to a rule of Federal Civil Procedure, which do not apply in criminal cases) He alleges that multiple references to Viktor Bout, the co-defendant, were improper, and operated as a fraud upon the Court. Bout was, and remains, a co-defendant, Chichakli's indignation notwithstanding, and there was no misrepresentation of that fact here.

(8) The Court failed to issue a missing witness charge, and curtailed examination of the credibility of Agent Zachariaseiwicz; (the Government substituted one DEA witness for another, relating to Viktor Bout's arrest and seizure of his laptop) The argument is disjointed, and I candidly cannot make sense of the discussion, which is absent a conclusion.

(9) Unrelated, highly prejudicial evidence were [sic] improperly admitted, and the Court expresses bias against the defendant; (another discussion of why it was improper for the Government to mention Viktor Bout, Charles Taylor; the Court, in allowing this prejudicial information, demonstrated bias towards the defendant).

(10) The Pro Se defendant denied fair trial by the means of preventing him for preparing for trial by placing him in solitary confinement; ( the movement of the defendant to a Manhattan pre-trial detention center, and placing him in the Special Housing Unit, and not in General Population, denied him the ability to adequately prepare for trial) I am wondering whether the defendant considered that he was in custody when he decided to represent himself, knowing that proper trial preparation is difficult, or even impossible, when a defendant is locked up, and unable to conduct an investigation, interview and subpoena witnesses, and prepare a defense.

(11) Guidelines calculation is improperly enhanced 18-level[s], and Downward Departures, pursuant to 3553(a) were improperly denied. ( the victim's monetary loss and potential loss were improperly added to the case, resulting in a 16 level increase; two more points were added for violation of OFAC sanctions)

(12) The Court erroneously authorized forfeiture; ( the defendant contends that he had no interest in the money seized in connection with his purchase of aircraft).  If this was a purchase and sale, how a=can the sale proceeds, or deposit, not be from the purchaser ?

Whenever an appellant acts Pro Se, his brief may not precisely follow the requirements of the Federal Rules of Appellate Procedure, and local rules, as well as generally accepted principles of brief writing, but much of the brief was rambling, at times even seeming like stream of consciousness prose. he would have been far better served to allow the Second Circuit to appoint counsel to write it for him.

Do Chichakli's  points on appeal have any legal merit, and should the judgment be reversed and remanded for a new trial ? We await the Government's response.

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