NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10486

                Plaintiff-Appellee,             D.C. No. 3:16-cr-00411-VC-1

 v.
                                                MEMORANDUM*
NAUM MORGOVSKY,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-10448

                Plaintiff-Appellee,             D.C. No. 3:16-cr-00411-VC-3

 v.

IRINA MORGOVSKY,

                Defendant-Appellant.

                   Appeals from the United States District Court
                      for the Northern District of California
                    Vince Chhabria, District Judge, Presiding

                          Submitted September 16, 2020**
                             San Francisco, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, TASHIMA, and BADE, Circuit Judges.

      Naum and Irina Morgovsky appeal from their convictions and sentences,

following guilty pleas, for conspiracy to violate the International Traffic in Arms

Regulations (ITAR) in violation of the Arms Export Control Act (AECA), 22

U.S.C. §§ 2751–2799aa-2. Naum also appeals his convictions and sentences for

money laundering in violation of 18 U.S.C. § 1956(a)(1)(B) and (a)(2)(A). We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     The Morgovskys argue that the district court committed a variety of

errors during each of their plea proceedings. Because the Morgovskys raised none

of these challenges in the district court, we review for plain error. United States v.

Pena, 

, 1155 (9th Cir. 2003). “Plain error is (1) error, (2) that is

plain, and (3) that affects substantial rights. If all three conditions are met, we may

then exercise our discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Yijun Zhou, 

, 1012 (9th Cir. 2016)

(quotation marks omitted).

      Naum and Irina point out that the district court failed to recite the elements

of their offenses during both their plea colloquies. A district court must state the

elements of an offense during a plea colloquy, and the failure to do so is error

under well-settled Ninth Circuit precedent. United States v. Covian-Sandoval, 462


                                            

, 1095 (9th Cir. 2006). However, neither Naum nor Irina proves that the

error affected their substantial rights, as the third step of the plain error standard

requires. United States v. Dominguez Benitez, 

, 76 (2004). An error

affects substantial rights where there is “a reasonable probability that, but for the

error, [the defendant] would not have entered the plea.”

and

Irina confirmed in writing and during their plea colloquies that they fully

understood the charges made against them. These facts, combined with the

Morgovskys’ representation by counsel in the district court, strongly support their

“full comprehension of the nature of the offense[s].” 

.

      Next, Naum and Irina argue that the district court failed to determine a

sufficient factual basis for their guilty pleas. “[A] court need not rely on the plea

colloquy alone and may conclude that a factual basis exists from anything that

appears on the record.” United States v. Mancinas-Flores, 

, 682 (9th

Cir. 2009) (internal quotation marks and citation omitted). The statements that the

district court relied on (particularly from the Morgovskys’ presentence reports

(PSRs) and their admissions during plea proceedings) establish a basis for each of

the facts the Morgovskys now dispute: specifically, that they lacked the requisite

license to export ITAR-controlled equipment to Russia, that they intentionally




                                            3
agreed to join the conspiracy, and that they knew their conspiracy was illegal.1

      The Morgovskys also argue that the district court failed to ensure their pleas

were voluntary because Irina’s plea agreement was contingent on Naum’s guilty

plea. Apart from citing generic statements that a district court should closely

scrutinize “package plea deal” arrangements, see, e.g., United States v. Caro, 

, 659 (9th Cir. 1993), the only specific argument they make on this issue is

that the district court failed to advise Irina that she could decline to enter a guilty

plea even after she signed the plea agreement. But the record flatly contradicts this

assertion: the court stated at her plea hearing, “You do have the right to continue

to plead not guilty. Do you understand that?” Irina responded, “Yes.”

      Irina also argues that the district court failed to determine her competence

adequately once it learned that she was taking an antidepressant. But after learning

that Irina was “under the influence of some medication,” the district court satisfied

its obligations to determine “what type of drug [she] ha[d] taken” and “whether the

drug [was] affecting [her] mental state.” United States v. Carter, 

,

954 (9th Cir. 2015).



      1
        The Morgovskys fault the district court for relying on “totally defective
PSRs, virtually identical for both Morgovskys.” They are correct that many of the
relevant portions of their PSRs are similar, but they cite no authority that it is
improper for two co-conspirators’ PSRs to closely mirror each other, and they fail
to show that the factual findings the district court adopted from the PSRs were
unreliable.

                                            4
      The court asked Irina whether she was “currently under the influence of any

drug, medication or alcoholic beverage that would hinder [her] ability to

understand the proceedings here today.” She responded, “No, I’m taking some

antidepressant, but they’re not affect [sic] my ability to understand any of the

proceedings.” Irina suggests that her “short and contradictory answers” were “red

flags” that the district court failed to investigate, but she fails to explain how her

answers were contradictory, or what about them should have raised the district

court’s suspicion.

      Next, Naum and Irina argue that their pleas were “not knowing and

voluntary as a constitutional matter because the district court failed to advise

[them] of the law in relation to facts and demonstrate on the record that [they]

understood the complex charg[es] to which [they were] pleading.” We reject this

general argument for the same reasons we rejected the Morgovskys’ specific

challenges above: the record amply demonstrates that they understood the charges

to which they were pleading guilty, they were represented by counsel, and they

gave no indication that their decisions to plead guilty were anything but voluntary

and intelligent. Finally, the Morgovskys’ cumulative error arguments necessarily

fail because only one error occurred. United States v. Solorio, 

, 956

(9th Cir. 2012).




                                            5
      2.     The Morgovskys argue that their conspiracy convictions under ITAR

and the AECA should be vacated because Congress, when it enacted 22 U.S.C.

§ 2778, did not establish criminal conspiracy liability.2 Because Irina has generally

waived her appeal rights pursuant to her plea agreement, we do not entertain her

challenge. United States v. Rahman, 

, 1259 (9th Cir. 2011).3

Moreover, because Naum did not raise this challenge in the district court as

Federal Rule of Criminal Procedure 12(b)(3) requires, and he has not shown good

cause, United States v. Guerrero, 

, 897 (9th Cir. 2019) (per curiam),

cert. denied, 

(2020), he has waived his challenge on appeal except

insofar as he “attack[s] the constitutionality of the law under which he is charged,”

United States v. Parker, 

, 991 (9th Cir. 2014) (internal quotation

marks and citation omitted). However, we review de novo Naum’s constitutional

argument that “under the separation of powers, Congress had no power and thus



      2
         Notwithstanding the Morgovskys’ own inconsistent characterizations of
their challenge, it plainly consists of two distinct arguments: (1) that “Congress
did not delegate to the Executive Branch its legislative authority . . . to create a
separate crime of conspiracy,” and (2) that even if Congress purported to delegate
this authority, such a delegation violates the separation of powers.
       3
         Although “even a valid appellate waiver does not prevent courts from
reviewing an illegal sentence,” United States v. Pollard, 

, 1041 (9th
Cir. 2017), the rationale underlying this exception does not extend to challenging a
statute of conviction because nothing prevents a defendant from raising the latter
during pretrial proceedings. See, e.g., United States v. Johnson, 

, 203
n.6 (9th Cir. 1995) (discussing “the possibility that a sentencing error could be
entirely unforeseeable and therefore not barred by the defendant’s appeal waiver”).

                                          6
could not validly delegate to the Executive Branch the authority to create new

generic crimes, such as conspiracy, separate and distinct from those proscribed by

the statute enacted by Congress.”4 United States v. Tabacca, 

, 912

(9th Cir. 1991); United States v. Gilbert, 

, 1526 (9th Cir. 1987).

      In United States v. Gurrola-Garcia, we rejected the argument that an earlier,

similarly-worded version of the same AECA provision “constitute[d] an

unconstitutional congressional delegation of legislative power to the executive”

insofar as it “empower[ed] the President to criminalize ‘attempt’ conduct.” 

, 1078 (9th Cir. 1976). We reasoned, “It is well established that

Congress may constitutionally provide a criminal sanction for the violation of

regulations which it has empowered the President or an agency to promulgate.”

(collecting cases); see also United States v. Chi Tong Kuok, 

,

934, 939 (9th Cir. 2012) (holding that Congress set forth an intelligible principle in

charging the President to designate, and regulate the export of, “defense articles

and defense services”). Naum argues that Gurrola-Garcia is distinguishable

because it addressed attempt liability, not conspiracy liability, but this difference is



      4
         Naum’s argument that Congress did not delegate the authority to
criminalize conspiracy (contrasted with his argument that Congress could not do
so) is not a constitutional challenge. See Dalton v. Specter, 

, 472
(1994) (collecting cases and distinguishing “between claims of constitutional
violations and claims that an official has acted in excess of his statutory
authority”).

                                           7
immaterial to our analysis. Thus, we affirm the Morgovskys’ conspiracy

convictions.

      3.       Naum argues that the district court violated his Sixth Amendment

right to counsel by denying his request for substitution of counsel before his

sentencing hearing. “We review a district court’s denial of a motion for

substitution of counsel for abuse of discretion.” United States v. Rivera-Corona,

, 978 (9th Cir. 2010) (citation omitted). “[W]e consider (1) the

timeliness of the substitution motion and the extent of resulting inconvenience or

delay; (2) the adequacy of the district court’s inquiry into the defendant’s

complaint; and (3) whether the conflict between the defendant and his attorney was

so great that it prevented an adequate defense.”

the

district court plainly did not abuse its discretion. After holding both open and ex

parte hearings, the district court found that Naum was attempting to delay the

proceedings and that his last-minute request and criticism of his counsel fit a

pattern of manipulative behavior the court had observed from Naum throughout the

proceedings. Given the last-minute timing of the substitution request, Naum’s lack

of a convincing reason for requesting the substitution, and the district court’s

findings that Naum had pressured his wife to fire her lawyers and had illicitly filed

documents in his lawyer’s name, we hold that the district court’s application of the

standard was not “illogical,” “implausible,” or “without support in the record.”


                                          8
United States v. Robertson, 

, 1213 (9th Cir. 2018) (internal quotation

marks omitted).

      4.     Naum argues that the district court improperly conditioned its

acceptance of his guilty plea on his admission of forfeiture allegations. We review

unpreserved challenges to forfeiture proceedings for plain error, United States v.

Soto, 

, 678 (9th Cir. 2019), and we find no plain error here. By

pressing Naum to indicate whether he understood the forfeiture allegations against

him, the district court merely followed Federal Rule of Criminal Procedure

11(b)(1)(J), which requires “the court [to] inform the defendant of, and determine

that the defendant understands, . . . any applicable forfeiture.” We also reject

Naum’s arguments that the district court failed to “determine what property is

subject to forfeiture” and to hold a forfeiture hearing. See Fed. R. Crim. P. 32.2.

The district court satisfied Rule 32.2’s first requirement when it adopted the PSR’s

recommendation on forfeiture, and it was not required to hold a hearing because

the parties never requested one. See

(requiring a hearing “on either

party’s request”).

      5.     Naum argues that the district court erred in imposing a $1 million fine

based on its finding, contrary to the PSR, that Naum had the ability to pay. In his

opening brief, Naum asserts both that he lacks the present ability to pay the fine

and that he lacks the future earning capacity to pay. The only argument Naum


                                          9
preserved for appeal is that the district court erred by finding that Naum had the

ability to pay because he was hiding assets. He has waived the argument that the

district court erred on any other ground. “A district court’s finding of whether a

defendant is able to pay [a] fine is reviewed for clear error.” United States v.

Orlando, 

, 1240 (9th Cir. 2009). Even assuming that the district

court erroneously determined Naum was hiding assets, Naum’s challenge still fails

because the district court clearly based its fine decision on two alternative,

independently sufficient grounds: after Naum’s counsel objected to the court’s

finding that Naum was hiding assets, the district court clarified that “even if he

lacks the ability to pay now, he’s . . . not likely to lack the ability to pay in the

future.” Because Naum has waived any argument that the district court erred on

the latter ground, we affirm the district court’s imposition of a fine.

       AFFIRMED.5




       5
        Because we affirm the district court, we do not reach Naum’s request for
reassignment to a different district court judge on remand.

                                            10