United States v. Nishniandze

United States Court of Appeals
For the First Circuit

Nos. 01-2495
01-2621

UNITED STATES OF AMERICA,

Appellee,

v.

GIORGIY NISHNIANIDZE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.

Elizabeth L. Bostwick, with whom Joseph S. Berman and Berman
& Dowell were on brief, for appellant.
Samuel W. Buell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.

August 26, 2003
 TORRUELLA, Circuit Judge. Giorgiy Nishnianidze raises a

host of challenges to his extortion conviction. After careful

review, we affirm.

I. Facts

A. Adoption

Lewis Finfer and Judith Shea, a married couple, adopted

an infant son, Alexander, from the country of Georgia in March

1996. They consulted with a Massachusetts adoption agency called

Wide Horizons for Children, Inc., which in turn worked with

Nishnianidze (pronounced nish-nee-ah-NID-zuh), an attorney in

Georgia. Finfer and Shea paid $10,000 for the adoption -- half to

Wide Horizons and half to Nishnianidze for his legal services.

Finfer and Shea traveled to Georgia to pick up their son,

staying with Nishnianidze at his home. Finfer and Shea asked to

meet the birth mother but Nishnianidze told her that he did not

know how to locate her. The adoption was without incident.

Nishnianidze provided the couple with Georgian legal documentation

of the adoption, including a document in which Alexander’s birth

mother relinquished all parental rights. These documents were

recognized by a Massachusetts court that finalized the adoption

after Finfer, Shea, and Alexander returned home.

B. Nishnianidze Contacts Parents

Nishnianidze emigrated to Brooklyn, New York in October,

1998, seeking permanent residency from the Legacy Immigration and

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Naturalization Service. Finfer and Shea heard nothing from

Nishnianidze until January 26, 1999, when he called their home and

spoke to Shea. He said he was in Boston and asked to see the

family. Shea told Nishnianidze to call Finfer, who then invited

Nishnianidze to their home for dinner.

Finfer picked up Nishnianidze in downtown Boston and

drove him to the family’s home in Dorchester. That evening, on the

pretense of documenting a successful international adoption,

Nishnianidze filmed the family with a video camera he brought.

Intimating that the birth mother was having "a rough time," he

asked if the couple would provide financial support to the birth

mother and her two children in Georgia. The couple refused.

At the end of the evening, Finfer drove Nishnianidze back

to downtown Boston. During the car ride, Nishnianidze told Finfer

that Alexander’s birth mother was upset, might challenge the

legality of the adoption, had made threats to Nishnianidze and

Nishnianidze’s family, and wanted $50,000 from Finfer and Shea.

Finfer was upset by the conversation and told Nishnianidze it

"sounded like blackmail."

Finfer relayed the conversation to Shea. The couple

contacted an attorney the next day and met with the FBI on

January 28, 1999. At this meeting, Finfer and Shea agreed to

record their subsequent conversations with Nishnianidze. They also

received advice from the agents about how to gather information

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from Nishnianidze. After this initial meeting, Finfer and Shea

occasionally spoke with a single FBI agent about their

conversations with Nishnianidze and received suggestions as to how

to handle the discussions.

C. Telephone Calls

On the morning of January 29, 1999, Nishnianidze called

Shea at home, and she recorded the conversation. Nishnianidze

began by describing recent events in Georgia, including opposition

and challenges to international adoptions. He stated that

Alexander’s biological mother was upset the boy had been adopted by

an American family and had threatened harm to Nishnianidze and

Nishnianidze’s son if Alexander was not returned. Nishnianidze

stated that he came to the United States because of the threats,

and that the birthmother requested "from me to take the child

back." He told Shea that if she paid him $50,000 (to be given to

the biological mother), the biological mother would guarantee not

to pursue the child.

Nishnianidze stressed that he had been threatened and

abused by Alexander’s biological family, whom he described as

"hungry," "homeless," and "crazy people," who were connected to the

Georgian police. Shea stated that it was "[s]cary to think about

. . . people wanting Alexander back." Nishnianidze responded,

"[I]t’s very hard for, for you, okay?"

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 Near the end of the conversation, Nishnianidze told Shea

that if the biological mother "don’t receive money I don’t know

what will be happened." He told Shea to "be silence" and "not to

make noisy." Nishnianidze advised her to borrow the $50,000 from

a bank or from friends. The call ended when Shea told Nishnianidze

she would discuss the matter with Finfer.

Later that day, Nishnianidze called again and spoke to

Finfer, who recorded the call. Nishnianidze repeated that the

biological family wanted $50,000 and encouraged Finfer to promptly

pay whatever he could. Nishnianidze first said that his family in

Georgia was in danger, then stated "maybe they will call you or

come here I don’t know what they can do."

Finfer told Nishnianidze that he was worried and asked,

"Are you telling me that you’re gonna take our child?"

Nishnianidze responded, "Ah, I don’t know what will be happen."

Finfer concluded the call by telling Nishnianidze he would call him

in New York the following week.

On February 3, Nishnianidze left a message at the

couple’s home asking them to call him at his Brooklyn residence.

Finfer returned the call. In this recorded conversation,

Nishnianidze asked, "What you decide?" Finfer told him that they

had decided not to pay. Nishnianidze responded, "I think it would

be . . . worse for me and ah, also for your family." Nishnianidze

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told Finfer that the biological family knew Finfer and Shea’s

address and could send someone to the home. He continued:

They can take the child from yard or and
they’ll ah, request ah, twice more money. Or
they can I don’t know what they can do,
everything they can do. . . .
They can find ah, another people which can
come not to make photos but to take child.
And then you, you, you, you will, you will not
ah, know what we do when it would be happen
because they don’t warn you. . . .
They know address they will take ah, after one
month, two months, five months, ah, one year I
don’t know, which time it would be happen
. . . . [They told me to] warn them, that we
will take the child ah, or something we will
do it then.

Finfer stated he was concerned for his son’s safety, and

Nishnianidze again advised against going to the police or telling

anyone about the situation. He stated, "If you are afraid for

[Alexander] and his life in this case you must do right for son;

you must pay." Nishnianidze concluded by saying Finfer should call

him within one week if he decided to pay.

Finfer called Nishnianidze the next day and stated that

he was afraid for himself and his family and had decided to pay.

Over the next two weeks, Finfer and Nishnianidze spoke five times

regarding the exchange of money. They agreed to meet at Boston's

South Station to exchange $38,000.

In his final phone call on the evening of February 17,

1999, Nishnianidze told Finfer that he was sick and could not go to

Boston to pick up the money. He said Finfer could send the money

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directly to the birth mother, but stated that he believed he could

be arrested and did not want to touch the money.

D. FBI Questioning

On the morning of April 6, 1999, two New York FBI agents

and a New York City Police Department detective went to the

Manhattan apartment where Nishnianidze was staying. FBI agents in

Boston had requested that they locate Nishnianidze, interview him

and obtain any photographs or videotapes in his possession of

children whose adoptions he had processed.

When they arrived at the apartment between 8:00 and 8:30

a.m., the agents knocked and identified themselves. Nishnianidze

opened the door and they entered into a one-room apartment with a

bed and two additional mattresses on the floor. Nishnianidze

appeared to have been sleeping when he answered the door, and the

agents observed Nishnianidze’s son on a mattress on the floor where

he had been sleeping and where he remained throughout the

interview.

The agents (including one Russian speaker) informed

Nishnianidze that they were investigating his contacts with a

Massachusetts family and interviewed him for thirty to forty-five

minutes. Nishnianidze talked about his involvement in

international adoptions and his contacts with Finfer and Shea, and

then answered follow-up questions. The agents asked Nishnianidze

if he had any photographs or videotapes of the adopted children.

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An agent accompanied Nishnianidze as he searched the apartment and

produced the video of Alexander. The agents and detective were all

armed, and while Nishnianidze searched for the video, the detective

removed his snub-nosed handgun from its holster and held it behind

his back, reholstering it when the search was complete.

At some point during the interview, Nishnianidze’s

roommate arrived at the apartment. The detective asked him to wait

in the hallway while the interview was completed and he agreed to

do so. After giving Nishnianidze a receipt for the videotape and

a birth announcement relating to another adoption, the interview

ended.

E. Arrest and Pre-trial

Nishnianidze was arrested on May 17, 1999. He was

charged with four counts: (1) transmitting an interstate threat

with the intent of extorting $50,000 in violation of 18 U.S.C.

§ 875(b); (2) transmitting an interstate threat in violation of 18

U.S.C. § 875(c); (3) traveling in interstate commerce to perform

acts of extortion in violation of 18 U.S.C. § 1952; and (4) using

an interstate facility to perform acts of extortion in violation of

18 U.S.C. § 1952.

Before trial, Nishnianidze made a motion to suppress his

April 6, 1999 statements to the FBI agents. After an evidentiary

hearing, the district court denied the motion.

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 F. Trial

The government’s case at trial included the recorded

telephone conversations between Nishnianidze and Shea and Finfer.

Finfer and Shea testified about their conversations with

Nishnianidze as well as their subjective fear that their son was in

danger. An FBI agent described her interview of Nishnianidze in

Manhattan, including his statement that he believed he was

committing extortion.

Nishnianidze testified in his defense. He said he never

intended to extort money, but was trying to make Finfer and Shea

aware of the danger he was facing from Alexander's biological

family in Georgia. Nishnianidze suggested that he wanted the

couple to help him demonstrate fear of persecution so he could

receive political asylum. Nishnianidze also stated that Finfer was

playing "games" with Nishnianidze, and Nishnianidze simply joined

the game, although he never actually intended a kidnapping.

The jury found Nishnianidze guilty on all four counts.

He was sentenced to fifty-seven months imprisonment followed by two

years of supervised release. He was also ordered to pay a special

assessment of $400. This timely appeal followed.

II. Discussion

A. Motion to Suppress

Nishnianidze challenges the district court's denial of

his motion to suppress. We review the district court's factual

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determinations for clear error and its legal conclusions de novo.

United States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000).

"[A] person questioned by law enforcement officers after

being 'taken into custody or otherwise deprived of his freedom of

action in any significant way' must first" receive Miranda

warnings. Stansbury v. California, 511 U.S. 318, 322 (1994)

(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). In

determining whether a defendant was in "custody" when interrogated,

"a court must examine all of the circumstances surrounding the

interrogation, but the ultimate inquiry is simply whether there was

a formal arrest or restraint on the freedom of movement of the

degree associated with a formal arrest." Id. (quotation omitted);

accord United States v. Fernández-Ventura, 132 F.3d 844, 846 (1st

Cir. 1998).

The officer's subjective belief is irrelevant; the

inquiry is "how a reasonable man in the suspect's position would

have understood his situation." Stansbury, 511 U.S. at 323-24.

Among the factors to consider are "whether the suspect was

questioned in familiar or at least neutral surroundings, the number

of law enforcement officers present at the scene, the degree of

physical restraint placed upon the suspect, and the duration and

character of the interrogation." United States v. Masse, 816 F.2d

805, 809 (1st Cir. 1987) (quotation omitted).

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 Considering all the circumstances, we hold that the

district court did not err in denying Nishnianidze’s motion to

suppress. Admittedly, there are some factors in favor of

suppression, including the fact that the interview took place early

in the morning and was administered by three agents in a small

area. Additionally, Nishnianidze was never told he was free to

leave. On the other hand, Nishnianidze was interviewed at the

place where he was staying; he was therefore familiar with the

surroundings. The interview was forty-five minutes or less -- not

exceptionally long. Cf. Fernández-Ventura, 132 F.3d at 848

(finding that the duration of the interrogation, on its own, is not

a determinative factor).

The agents did not make physical contact with

Nishnianidze or restrain his movement. At the hearing,

Nishnianidze’s son testified that he saw one of the detective's gun

when it was briefly unholstered. However, there is no evidence

that Nishnianidze saw the weapon or felt it restrained his movement

in any way. Finally, Nishnianidze's son testified that

Nishnianidze was told by the Russian-speaking agent that if he

cooperated and agreed with the agents he would not be arrested.

Nishnianidze asserts that he was confused and felt pressured to

speak. This argument fails because the district court heard the

son’s testimony regarding the agent’s behavior, and was in the best

position to judge its credibility. The district court's factual

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finding that the son's story was implausible is not clearly

erroneous. In all, there was not the "restraint on movement of the

degree associated with a formal arrest," and Nishnianidze's motion

to suppress his statements was properly denied. See Stansbury, 511

U. S. at 322; cf. United States v. Lanni, 951 F.2d 440, 443 (1st

Cir. 1991) (finding no clear error in determining that defendant

was not in custody where she was interviewed and asked to provide

handwriting samples by two agents for four hours in a "tense

atmosphere").

B. Sufficiency of the Evidence

Nishnianidze asserts that the government failed to

present sufficient evidence to sustain a conviction under 18 U.S.C.

§ 875(b)1 and (c)2 and 18 U.S.C. § 1952 (the "Travel Act"). In

assessing a challenge to the sufficiency of the evidence, we

"review the record to determine whether the evidence and reasonable

1
Whoever, with intent to extort from any person . . ., any
money or other thing of value, transmits in interstate or
foreign commerce any communication containing any threat
to kidnap any person or any threat to injure the person
of another, shall be fined under this title or imprisoned
not more than twenty years, or both.

18 U.S.C. § 875(b) (2003).
2
Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person
or any threat to injure the person of another, shall be
fined under this title or imprisoned not more than five
years, or both.

18 U.S.C. § 875(c).

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inferences therefrom, taken as a whole and in the light most

favorable to the prosecution, would allow a rational jury to

determine beyond a reasonable doubt that the defendant [was] guilty

as charged." United States v. Sullivan, 85 F.3d 743, 747 (1st Cir.

1996) (quotation omitted). "An appellate court plays a very

circumscribed role in gauging the sufficiency of the evidentiary

foundation upon which a criminal conviction rests." United States

v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998). We are mindful that

the jury's duty is to assess credibility, and it may accept or

reject, in whole or in part, any testimony. United States v. Mena-

Robles, 4 F.3d 1026, 1031 (1st Cir. 1993).

1. Threats Transmitted Via Interstate Communication

To convict under § 875, the government had to prove that

the defendant intended to transmit the interstate communication and

that the communication contained a true threat. See United States

v. Whiffen, 121 F.3d 18, 20 (1st Cir. 1997) (quoting United States

v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994)). A true threat is

one that a reasonable recipient familiar with the context of the

communication would find threatening. Id. For a conviction under

§ 875(b), the government also had to prove that the threat was

transmitted with the specific intent to extort money or a thing of

value. See United States v. Himelwright, 42 F.3d 777, 783 (3d Cir.

1994).

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 A reasonable jury could find that Nishnianidze

transmitted a threat in interstate commerce with the intent of

extorting money. The jury heard Nishnianidze’s telephone

conversations, specifically the interstate telephone call of

February 3 in which Nishnianidze stated that not paying the money

would be "worse for me and ah, also for your family." He told

Finfer that "[t]hey can take the child from yard," and warned that

Finfer could never be safe because "they" could act at any time in

the future. Nishnianidze finished by saying, "If you are afraid

for [your son] and his life in this case you must do right for your

son, you must pay."

The jury also considered the circumstances leading up to

this conversation: Nishnianidze appeared in Boston out of the blue

after nearly three years; went to the family’s home and videotaped

the child; and began a series of phone calls to the family

discussing the danger posed by the biological family (who were

referred to as "crazy people") and the need to pay $50,000 to avoid

harm to either Nishnianidze’s family or Alexander.

Nishnianidze asserts that he was simply warning the

family and cannot be convicted because he never threatened to

personally kidnap Alexander. His argument fails. Nishnianidze

told Finfer and Shea that the only way to ensure their son's safety

was to pay him $50,000. Thus, Nishnianidze acknowledged that he

alone could prevent harm from befalling Alexander. His statements

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in the final phone call that Finfer could send the money directly

to the birth mother came after the threats had already been made.

A jury could have found that Nishnianidze either controlled the

biological family's actions or, more likely, that the story of the

biological family was fabricated and the real danger was posed by

Nishnianidze himself. There was ample evidence to support a

finding that Nishnianidze’s comments placed Finfer and Shea in

immediate fear for their son’s safety.

2. Criminal Conduct and Interstate Travel

To convict under the Travel Act, the government must show

"(1) interstate travel or the use of an interstate facility; (2)

with the intent to promote, manage, establish, carry on, or

facilitate an unlawful activity" (here, violation of the

Massachusetts extortion statute, Mass. Gen. Laws ch. 265, § 25

(2003)); and (3) "performance or attempted performance of acts in

furtherance of the unlawful activity." Woodward, 149 F.3d at 65.

A reasonable jury could have found that Nishnianidze

traveled from his home in Brooklyn, New York to Boston,

Massachusetts in January 1999 and made interstate telephone calls

in February 1999 intending to promote and facilitate extortion.

Nishnianidze established contact with Finfer and Shea, came to

their house and made a video of the family, and asked the couple

for money for the biological mother. He continued to pressure the

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family after he returned to New York. There was ample evidence to

support his conviction under the Travel Act.

C. Jury Instructions

1. "True" Threat

Nishnianidze argues that the district court erred in

instructing the jury to consider whether the recipient felt

threatened, rather than whether an objective speaker making the

statements would believe a recipient would feel threatened. Since

no objection was made at trial, we review only for plain error.

Fed. R. Crim. P. 52(b). We evaluate the error in light of the

record as a whole. United States v. Smith, 278 F.3d 33, 38 (1st

Cir. 2002). Nishnianidze must demonstrate that the error was plain

and that it affected his substantial rights. United States v.

Olano, 507 U.S. 725, 732 (1993); accord United States v. Tom, 330

F.3d 83, 93 (1st Cir. 2003). This court will not correct a

forfeited error unless the error "seriously affects the fairness,

integrity or public reputation of judicial proceedings." Olano,

507 U.S. at 732 (quotation omitted).

"True threats" are not protected by the First Amendment.

United States v. Fulmer, 108 F.3d 1486, 1492-93 (1st Cir. 1997).

A defendant may be convicted for making a threat if "he should have

reasonably foreseen that the statement he uttered would be taken as

a threat by those to whom it is made." Fulmer, 108 F.3d at 1491;

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see also United States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997)

(applying Fulmer to § 875(c)). While the fact-finder may consider

other evidence, including the effect of the statement on the

recipient, the ultimate standard is an objective one -- whether a

reasonable person would understand the statement to be threatening.

Fulmer, 108 F.3d at 1491. Nishnianidze asserts that the judge

improperly instructed the jury to consider the recipient's state of

mind when determining whether a threat was made.

Although the district court first (incorrectly) stated

that the threat was determined by the recipient's reaction, the

instruction later clarified that the burden is on the government to

show that a reasonable speaker would have understood the statement

to be threatening.3 We find no plain error in the district court's

3
The district court charged:

A communication contains a threat to kidnap another
person if it is made under circumstances such that an
ordinary reasonable recipient of the communication would
interpret it as a true threat of injury or kidnapping.
With respect to this element you may consider the
circumstance under which the statement was made,
including the kind of statement made, the place where it
was made, how it was spoken, and its context with respect
to the surrounding circumstances. You may also consider
the language the defendant used and the reaction of the
person to whom the communication was addressed. The
government is not required to prove that the defendant
subjectively intended the recipient to understand the
communication as a threat, nor that the defendant
intended or was able to actually carry out the threat
contained in the communication. But the government must
prove that the defendant could reasonably have foreseen
that the communication would be taken as a threat by the
listener.

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instruction. At most, the district court misspoke at the beginning

of the instruction. The misdescription or omission of an element

of a crime does not necessarily constitute plain error. Neder v.

United States, 527 U.S. 1, 9-10 (1999).

The evidence was overwhelming that Nishnianidze should

have known that the threats would frighten the victims. Finfer and

Shea told Nishnianidze they were frightened and Nishnianidze

acknowledged that it was hard for them to hear what he said.

Nishnianidze told them that someone could take their child at any

time and told them not to go to the police. A reasonable person

who made these statements would understand them to be threatening.

Any error in the instruction did not affect Nishnianidze's

substantial rights.

2. Entrapment

Nishnianidze challenges the district court's denial of

his request for an entrapment instruction. We apply plenary review

to that decision. United States v. Rodríguez, 858 F.2d 809, 812

(1st Cir. 1988). "[A]n accused is entitled to an instruction on

his theory of defense so long as the theory is a valid one and

there is evidence in the record to support it." Id. In making

this determination, a court may not weigh the evidence, make

credibility determinations, or resolve conflicts in the proof.

(Emphasis added).

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United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998). Rather,

we consider whether "there is record evidence which fairly supports

the claims of both government inducement of the crime and

defendant's lack of predisposition to engage in it." Rodríguez,

858 F.2d at 814.

An improper "inducement" consists of the opportunity plus

something else like excessive pressure, dogged persistence, or the

government's taking advantage of an alternative, non-criminal type

of motive. Gendron, 18 F.3d at 961; United States v. Joost, 92

F.3d 7, 12 (1st Cir. 1996). "[I]t is not enough simply that the

government afforded the defendant the opportunity for commission of

the offense." Rodríguez, 858 F.2d at 813.

Nishnianidze argues improper inducement resulted when the

FBI suggested questions for Finfer and Shea to pose to Nishnianidze

and monitored the case. We think this is a prime example of the

government simply giving a suspect the opportunity to commit a

crime: the FBI did not design or initiate the plan, Finfer and Shea

simply asked open-ended questions and Nishnianidze provided the

incriminatory details. Nishnianidze mentioned the possible harm to

Alexander and the need to pay $50,000 to ensure his safety. Finfer

and Shea (as governmental agents) did nothing to pressure

Nishnianidze -- indeed, the most serious threats came when Finfer

stated that they would not pay. Cf. id. at 815 (finding that

defendant made a sufficient showing of government inducement where

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the government actor "designed the plan, created the opportunity

for defendant's participation, made the initial approach, solicited

defendant forcefully, and displayed dogged insistence until

[defendant] capitulated").

As to predisposition, we remove the government's improper

inducement and "ask how the defendant likely would have reacted to

an ordinary opportunity to commit the crime." Gendron, 18 F.3d at

962. Factors to consider in assessing whether the defendant was

predisposed to commit to crime charged are:

(1) the character or reputation of the
defendant; (2) whether the initial suggestion
of criminal activity was made by the
Government; (3) whether the defendant was
engaged in the criminal activity for profit;
(4) whether the defendant showed reluctance to
commit the offense, which was overcome by the
governmental persuasion; and (5) the nature of
the inducement of persuasion offered by the
Government.

Gamache, 156 F.3d at 9-10.

Nishnianidze has not shown a lack of predisposition. He

initiated contact with Finfer and Shea, sought to profit from his

threats, showed no reluctance to the crime (his hesitancy in

collecting the money at the end came too late -- the threats had

already been communicated), and there was little, if any,

inducement by the government. As Nishnianidze has not shown either

government inducement or lack of predisposition, the district

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court's refusal to instruct the jury on an entrapment defense was

proper.

D. Pro Se Motions

In a pro se brief, Nishnianidze maintains that he was

denied effective assistance of counsel. This claim requires

resolution of factual issues, as appellant must demonstrate that

counsel's performance was constitutionally deficient and that the

deficient performance prejudiced the defense. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). We have held that "fact-

specific claims of ineffective assistance cannot make their debut

on direct review of criminal convictions, but, rather, must

originally be presented to, and acted upon by, the trial court."

United States v. Mala, 7 F.3d 1058, 1062 (1st Cir. 1993).

Nishnianidze's claim of ineffective counsel is therefore dismissed

without prejudice to appellant's right to litigate the claim in an

application for post-conviction relief. See id. at 1063.

Nishnianidze also filed a pro se motion to dismiss based

on the Vienna Convention, an issue raised for the first time on

appeal. His argument is not developed and therefore waived.

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."). His allusion to

prosecutorial misconduct fails for the same reason. Id.

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 III. Conclusion

Finding no merit in Nishnianidze's appeals, we affirm the

decision of the district court.

Affirmed.

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