[00:00:00] Speaker 05:
Good morning. Jeffrey Jones for the appellant. Anton Uganoff. I'm not sure how to say it either.

[00:00:06] Speaker 05:
I'd like to reserve two minutes for rebuttal, please. Sure.

[00:00:10] Speaker 05:
In the four accounts here of impersonating a federal agent, Mr. Uganoff was convicted. I believe it's uncontested that one of his purposes, if not his only purpose, was to warn people about what he believed was a threat to national security, the narrative that he put in the affidavit. that he submitted in each count.

[00:00:30] Speaker 04:
If that were his purpose, there were other ways to achieve that, you would agree, right? Other than fraudulently creating search warrants.

[00:00:37] Speaker 05:
No question.

[00:00:39] Speaker 05:
And for all we know, I know that there was the record in one place touches on one of the FBI agents that testified. He had contacted the agent. It didn't come out at trial. Defense counsel didn't develop why he had contacted the agent. But he has...

[00:00:58] Speaker 05:
If you consider the content of the affidavit, just telling people – he may well have – this is speculative, but he may well have told a lot of people, and no one is going to take it seriously. And perhaps he decided that if people thought he was a federal agent, and this was coming from the government and was part of an investigation, people would take it seriously.

[00:01:21] Speaker 04:
Yeah, but doesn't that just beg the question? I mean, can we even get into – what his intent was. Like at the end of the day, there's no dispute. He fraudulently created search warrants. That is the trigger for the enhancement, isn't it?

[00:01:38] Speaker 05:
No. The trigger for the enhancement is to have the purpose of conducting an unlawful search. And I agree there's a connection there. And if someone goes to a court seeking a search warrant, I think in the general you can infer that's certainly evidence that they intended to conduct an unlawful search. But it's far from dispositive. And there's a lot more evidence here that he didn't have the intent to actually show up at the Pentagon by himself with a fake ID and demand entry.

[00:02:11] Speaker 05:
And some of that evidence is in count one. He did the same thing. He had the same affidavit. It was a search warrant. He submitted it to the Capitol Police. He didn't try to conduct a search or obtain information from them. He wanted them to think it was leaked by the media. And then he takes that same search warrant. I think the question then becomes, it seems clear in count one, there was no purpose to conduct a search. So in counts two through four, which happened a little later, he submits it to courts. Did that reflect a new purpose that he didn't have in count one?

[00:02:42] Speaker 05:
I think for a few reasons, the preponderance of the evidence says no, because he never submitted it to a court before. that had the authority to grant the search warrant.

[00:02:54] Speaker 03:
Let's say we take your argument as face value.

[00:03:01] Speaker 03:
How can we argue that this error was plain? Nobody complained about it before the court. So how can you show that?

[00:03:10] Speaker 05:
This error about the sixth level adjustment, that was litigated below. The defense counsel did object to this one. I also made a claim about the- Objected to that one.

[00:03:21] Speaker 05:
Claim one.

[00:03:22] Speaker 03:
But on the obstruction enhancement issue, that was not objected to, was it?

[00:03:29] Speaker 05:
That's under plain error review, yes, sir.

[00:03:32] Speaker 03:
It was, okay.

[00:03:33] Speaker 05:
Yes, sir.

[00:03:35] Speaker 05:
Count one was abuse of discretion is the standard of review for count one. I mean, sorry, for claim. For the first claim I'm raising, it's abuse of discretion.

[00:03:43] Speaker 04:
Out of curiosity, and I guess I'll ask probably the same question from the government, I was trying to figure out – I'm not sure how relevant it is to our analysis. How did he actually think he was ever going to get these documents, which I think is sort of what you were leading to. He never walked down there and tried to execute the search warrant. So at best, as I understand it, he sends it into the government or he later on sends it to a court that has no ability.

[00:04:11] Speaker 04:
Did he ever think he was actually going to get these documents?

[00:04:17] Speaker 05:
He submitted everything by email.

[00:04:21] Speaker 05:
I think that... I think what he believed is... He did a lot... We do know the record shows that he did a lot of research. He didn't just... He wasn't ignorant about how things worked. I mean, he's not a lawyer, certainly, but he did a lot of research. The government discusses that. He might be better than some lawyers we see before us.

[00:04:41] Speaker 05:
He certainly thinks so. But I think...

[00:04:47] Speaker 05:
He didn't he wasn't going to show up before a magistrate judge and argue for the search warrant. I don't think his target was was was a judge.

[00:04:55] Speaker 04:
You would agree if he did that, that the enhancement would be appropriate.

[00:05:01] Speaker 05:
That would be odd. I I'm not sure. I think that would certainly be a factor in favor. However, I think it's inherently implausible that he would have gotten it. He's going to show up at the Pentagon and. say he's a NASA agent, I think he's clearly, with all due respect, he's delusional in many respects, but he's not irrational in the pursuit of his goals. I think he would realize that showing up at the Department of Defense, they'd make one call to NASA and he'd be in handcuffs.

[00:05:34] Speaker 04:
Right, but I guess I'm just struggling with where, I understand your argument is, well, this was so implausible, but at what point, does it become plausible enough? And I'm worried that if we adopt that argument, we just open this up to a whole bunch of problems.

[00:05:53] Speaker 05:
I think what it comes down to in that sense is that it's looking at all the circumstances here, looking at all the evidence. This is a unique case. I could see nine cases out of 10 were just applying for a warrant, especially applying for a warrant in a court that has the authority to grant the warrant, especially since we know he wasn't just He didn't make a mistake. The record shows that he researched. One of the searches on his computer was, can a search warrant be filed in any federal jurisdiction? He knows the answer is no, and he never filed it in the only district court that could grant it.

[00:06:31] Speaker 02:
Counsel, the guidelines aren't binding. The district court didn't have to impose this enhancement and could have imposed enhancement very downward.

[00:06:43] Speaker 02:
wasn't the district court the one who observed this defendant, had greater understanding of the content of the materials than we do, perhaps, and saw them in person and made a decision that this was serious?

[00:06:54] Speaker 05:
The district court certainly was there for the trial.

[00:06:58] Speaker 05:
Mr. Ugenoff didn't testify at trial. He did address the court at sentencing.

[00:07:05] Speaker 05:
I think the court's reasoning speaks for itself, and I believe the court – I believe the court essentially believed that if you apply for a warrant that you must intend to conduct a search. And I respectfully, I think the court failed to agree, failed to adequately consider a lot of facts here that simply rebut that.

[00:07:27] Speaker 04:
Are there any cases you can cite? I was trying to remember, go back through, that where a defendant has applied for a warrant, and the court has said more is required to apply this enhancement?

[00:07:43] Speaker 05:
No.

[00:07:45] Speaker 05:
Look, this particular guideline has very little case law, and I searched case law not only in this circuit but nationwide. There's nothing on point either way. It's a novel issue, if you will.

[00:07:59] Speaker 04:
All right. We'll give you time for rebuttal. Thank you.

[00:08:28] Speaker 01:
Good morning, Your Honors. If it please the Court, James Connolly on behalf of the United States. We would ask that the Court affirm the sentence for the following three reasons. First of all, the District Court did not abuse its discretion when it found that Mr. Yaghanov impersonated a federal agent for the purpose of ultimately conducting an illegal search. The District Court found that he had earned that guideline section's enhancement, that's 2J1.4B1's enhancement, for committing his crime with that ultimate purpose.

[00:09:02] Speaker 01:
The court found by a preponderance of the evidence that his detailed creation of the warrant, the manner in which he submitted it, and the work that he had gone to to deceive people was... Can I ask, in your view, what's the triggering factor that gets us across that?

[00:09:17] Speaker 04:
Is the fact... I mean, you talk about how much detail he put into creating it, and the district court relied on that, and that it was submitted to a court, but we all agree that the court didn't have... I mean, well, do you agree that the court didn't have jurisdiction to actually enter or require – grant the search warrant?

[00:09:37] Speaker 01:
Well, insofar as it was a false search warrant.

[00:09:40] Speaker 04:
No, but I mean otherwise it would have had jurisdiction. I thought that it never had – I thought the court had never had jurisdiction in the first place, even in a real warrant.

[00:09:49] Speaker 01:
Well, he sent – if your honor means just the various courts that he sent it to. Yeah.

[00:09:55] Speaker 01:
I would imagine that they wouldn't have had jurisdiction necessarily unless there was a proper nexus to that district.

[00:10:03] Speaker 04:
So why is that seeking a search warrant if it never could have been granted in the first place? We all agree that there's nothing that could have been done to grant the search warrant.

[00:10:15] Speaker 01:
That assumes a level of sophistication on Mr. Yaghanov's part.

[00:10:19] Speaker 04:
Well, no, it doesn't. I mean, I know you made that argument, but the point is he sent it to a court that never could have gotten it. So your point is he tried to get one, and just the fact that he did it the wrong way doesn't negate the warrant. And I'm just trying to flesh out where the line is here. Let's say he did the detailed search warrant, kept it on his computer, and never sent it. Could a district court have awarded the sixth level enhancement now and said, He clearly was thinking about doing this.

[00:10:49] Speaker 01:
Well, if he never sent it, then there would be a diminished amount of evidence that he intended to execute. That's my question.

[00:10:55] Speaker 04:
So you would say that if that were the facts, the district court would have abused its discretion by granting the enhancement?

[00:11:03] Speaker 03:
Not necessarily. I want to follow up on his line of questioning because I think we would all agree this is a really bizarre case.

[00:11:13] Speaker 03:
And I am interested in the government's response to Laganov's argument that the allegations in the counterfeit warrants were so bizarre that they could not have possibly been for the purpose of conducting an unlawful search. What's the government's response to that?

[00:11:32] Speaker 01:
Well, if the defendant had thought that they were so bizarre as to not be plausible, he would not have been found to have had the intent to deceive. it's not just the facts in the affidavit, it's the formatting, it's the emails that it was attached to, the NASA OIG supervising agents that he falsely alleged for it to be coming from.

[00:11:52] Speaker 04:
I agree. I mean, to me, there's no question about the impersonating a federal officer. That's clear. He impersonated a federal officer. He did that. But that's not the issue. The issue is, was that for the intent of conducting an illegal search? And or yeah, an unlawful search. And I mean, you know, abuse of discretion gets you a lot of the way here, but I'm struggling with at what point, you know, the argument sort of seems to be, well, if you do any action, then that can qualify to get an unlawful search.

[00:12:31] Speaker 04:
But certainly there has to be something that, I mean, what if he took it to the post office and handed it in and said, I want you to search this residence? Would you say, well, he tried?

[00:12:42] Speaker 01:
Yes, if he handed it in the post office and said, I want to search this residence, then certainly that would be trying.

[00:12:47] Speaker 04:
But that almost doesn't make sense because no rational person would think that going to the post office and handing him a search warrant is a way that you conduct a non-lawful search. What if he took it to a grocery store and handed it? was checking out of Albertsons and hands it and he says, hey, give me the milk, here's the money, and by the way, execute the search warrant.

[00:13:11] Speaker 01:
I see what your honor is saying. But if I may, the court abuses its discretion in applying this enhancement only if its findings are illogical, implausible, or without support in inferences that can be drawn from the record. He is submitting this to clerk's offices with urgency, making it appear real. several of the clerk's office personnel said it looked real. I was stressed by that, and so I passed it up the chain. So in certain ways, he was actually successful in getting part of the way there.

[00:13:44] Speaker 01:
He is trying to get a search warrant authorized as the court found explicitly on the record at sentencing, and I can provide those sites if the court would like. He said that the court said very clearly that he found by preponderance of the evidence that he was trying to get that search warrant authorized. And so from the inference that we draw from the fact that he's trying to get a federal search warrant, he's sending it to multiple courts, he's doing as much as he can. And keep in mind, of course, he doesn't have to be successful every time.

[00:14:15] Speaker 01:
Every time he sends it in and gets a response, he gets more information.

[00:14:20] Speaker 04:
About how to do it better the next time. Correct.

[00:14:23] Speaker 01:
And so if we say if his goals were so lofty they're implausible is a defense. then that would simply encourage every defendant who does something like this to swing for the fences. But what's happening is that, and the government has argued, he sent it to the Capitol Police. He didn't get a response. It triggered a response, but he didn't know that. It triggered a response because it looked, according to the Capitol Police investigator, it looked like a real warrant or like it was done by someone who knew what a real warrant looked like.

[00:14:54] Speaker 01:
And so he investigated. And he contacted NASA. which, by the way, is something the defendant, while he was sending it to these judges in June and July of 2022, and he was sending it to the federal courts, he had the email addresses of those supervisory agents from NASA. He didn't send it to them. He didn't send them a letter saying, you know, we've come across this information. He was sending it to judges for the purpose of getting the search warrant authorized, and the court looked to that when it made its decision in its discretion to apply the six-level enhancement, because...

[00:15:27] Speaker 01:
even if there were some other parallel purpose of raising awareness, that the evidence simply does not support that that was the sole reason or even that that was a major reason.

[00:15:40] Speaker 03:
Can I change the subject briefly? What should we do with his procedural challenge to his sentence?

[00:15:51] Speaker 00:
I'm sorry.

[00:15:52] Speaker 00:
Could the court elaborate, please?

[00:15:54] Speaker 03:
Well, basically, he's approaches in a variety of ways, but he also makes a procedural challenge in effect to the sentence. And I'm asking what the government's response is to that approach.

[00:16:10] Speaker 04:
I think, I don't want to speak over Judge Smith, but I think he's referencing the 3553A factors. Did the district court appropriately walk through those in enhancing the sentence?

[00:16:24] Speaker 03:
No, that's part of it, certainly.

[00:16:27] Speaker 01:
Yes, it certainly did.

[00:16:30] Speaker 01:
And again, I can certainly point to sites in the record where the court said that although it had reviewed the guidelines and it had calculated the guidelines, that was, as in all sentencing, that was just the beginning. The court said at least twice in the sentencing hearing that, in fact, the guidelines weren't ultimately what was driving this case. And the Ninth Circuit has found before that If a judge is going to say, I'm not going to go with the guidelines, he can't simply just say that.

[00:17:00] Speaker 01:
And indeed, Judge Calabrata here did not. He explained the reasons why he was deviating from the guidelines, which included the fact that the defendant did not seem to have learned from his arrest and prosecution. He was continuing to impersonate a federal agent from jail. He was also making outlandish accusations against the prosecutors in this case. And those were, of course, set against this backdrop where he has this long history, which the court acknowledged at sentencing, of harassing law enforcement.

[00:17:31] Speaker 01:
And so the 3553A factors were certainly taken into consideration, the antagonistic behavior, but also the danger of recidivism. The court made clear that Mr. Yaghanov did not seem to be able to get out of his own way and was going to continue with this. The court was deeply concerned he was going to continue with this behavior. And while the court's language may have been in fairly plain terms, the concern taken as a whole in reading the transcript, the concern is certainly there, and it is attached to some very serious behavior when it comes to harassing law enforcement, harassing the prosecution, and trying to impede the sentencing process.

[00:18:14] Speaker 04:
On obstruction of justice, there's like kind of three bases here. We only need to find one of those, don't we, to support – say one of those is not in violation of plain error. And the reason I raise that is I'm a little suspicious about whether it's obstruction of justice to call the CIA, just a phone call to the CIA. I think filing false claims against a prosecutor to get them removed strikes me as more in the obstruction of justice category.

[00:18:47] Speaker 04:
So I wonder if you could just quickly address that.

[00:18:49] Speaker 01:
Yes, the court only needs to find one basis. But also I would point to the standard of review here, which allows the court to look to the entire record that the district court had before it to see if there was plain error in identifying that. And I think there's ample evidence.

[00:19:08] Speaker 01:
But from those three incidents, but as I said, also this long history of harassing the prosecutor's aside from the accusations that, that was, uh, that we saw from the defendant, um, after conviction.

[00:19:23] Speaker 04:
Okay. Thank you.

[00:19:25] Speaker 04:
Um, we'll, we'll give time for rebuttal now.

[00:19:39] Speaker 05:
Regarding the, um, how he made the warrant look real. Um, The email chains, the formatting, it looked like a real warrant. If it hadn't looked like a real warrant, no one would have thought he was a federal agent. If the front of the warrant, if the formatting of the warrant matched the content of the warrant, then his ploy wouldn't have worked. And it's the same ploy in count one. And we know from count one, there's no evidence there that he was trying to conduct a search. He just wanted to spread the information. He needed a real looking warrant for the Capitol Police to take him seriously.

[00:20:11] Speaker 05:
And the same counts two through four. He didn't need a real warrant to actually get the search warrant authorized. He needed that in the first place simply for people to think he was a federal agent.

[00:20:23] Speaker 04:
Can I ask about the practical implications? He's basically served his sentence at this point, right? Yes. He's released this month. He's released this month. So he's still detained?

[00:20:34] Speaker 05:
He's still detained right now, yes.

[00:20:37] Speaker 04:
Okay.

[00:20:40] Speaker 04:
What does – if we were to go with this and send it back, I guess he would just have a lower sentence. It wouldn't affect any time in prison because he's already served it. Would that have an impact in the future?

[00:20:51] Speaker 05:
Yes.

[00:20:54] Speaker 05:
He was sentenced to 12 months of supervised release. So if the sentence – if it went back and the judge – the district court decided to impose a lower sentence, it would reduce his term of supervised release commensurately.

[00:21:09] Speaker 04:
Although – I'm not so sure this guy shouldn't have some supervised release. What's that? I'm not so sure he shouldn't have some supervised release. I mean, he needs a little bit of guidance, I think.

[00:21:18] Speaker 05:
No comment, except it is, supervised release is part of the sentence. It is punishment, whether he needs it or, yeah.

[00:21:28] Speaker 05:
In fact, briefly with the Capitol Police, one important, one fact I think is that he went to the Capitol Police first. And if he was planning to search the Pentagon first, I don't think he would give a heads up to federal law enforcement.

[00:21:44] Speaker 04:
I get your argument, which is this is outlandish. I think to some degree you're right. The more difficult question is does it matter? I see. And I think we're going to have to grapple with that.

[00:21:56] Speaker 05:
If I could very briefly address the point about applying for a warrant equals having the purpose to search. I think while that does have logical appeal, One thing particular about this case is we have very clear evidence of another purpose. And we see that from count one, the purpose to spread information. We know he had that purpose. And given that he had that purpose, that fully explains his conduct across all four counts.

[00:22:30] Speaker 05:
That doesn't mean he didn't also have the purpose to search something. But if you had a case where someone submitted a warrant application and there's no evidence that they had any other purpose, I think one could infer, well, they must have wanted to do a search then. But here the record's pretty strong that we know he had a purpose that wasn't to search anything, and it's just a question of did he also have the additional purpose of conducting a search.

[00:22:56] Speaker 04:
Okay. Thank you. Thank you to both parties for your arguments in the case. The case is now submitted.