Case3:00-cr-00284-CRB Document1221 Filed05/30/07 Page1 of 3
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`USA,
`
` Plaintiff,
`
` v.
` LAZARENKO,
`Defendant.
` /
`
`No. C00-00284 MJJ
`AMENDED ORDER DENYING
`ALEXEI DITIATKOVSKY’S PETITION
`REQUESTING RESTITUTION
`
`On January 10, 2007 Alexei Ditiatkovsky filed a petition requesting restitution of funds
`allegedly extorted from him by defendant Pavel Lazarenko. Ditiatkovsky asserted that he is a
`victim of Lazarenko’s extortionate conduct committed in the course of the conspiracy
`underlying his conviction on Count 1 of the Second Superseding Indictment.
`Defendant Lazarenko and the government filed replies to the petition arguing that
`Ditiatkovsky does not qualify as a victim and is not entitled to restitution under the Mandatory
`Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663(A).
`Having reviewed and considered the briefs and arguments submitted by the parties and
`the government, the Court determines that the petition requesting restitution should be DENIED.
`The fundamental flaw in Ditiatkovsky’s petition is that it assumes he is a victim of the
`crime of conviction; he is not. While the indictment contained allegations related to the extortion
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`For the Northern District of California
`For the Northern District of California
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`United States District Court
`United States District Court
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`Case3:00-cr-00284-CRB Document1221 Filed05/30/07 Page2 of 3
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`of both Ditiatkovsky and Kiritchenko as predicates for money laundering, the United States did
`not present evidence relating to the extortion of Ditiatkovsky. Thus, the only extortion
`established at trial, and found by the jury, related to Kiritchenko. In other words, Lazarenko was
`convicted of a money laundering conspiracy that was narrower in scope than the one alleged, and
`it did not involve Ditiatkovsky. Accordingly, he is not a victim.
`The cases relied upon by Ditiatkovsky do not support his petition. In United State v. Bright,
`353 F.3d 1114 (9th Cir. 2004), the defendant admitted through his plea that he had established a
`scheme to defraud that was both incorporated in and broader than the counts of conviction. The
`acknowledgment of his participation in this scheme to defraud undergirded the district court’s award
`of restitution for losses caused by the dismissed conduct related to the scheme. In contrast, defendant
`Lazarenko has not admitted extorting Ditiatkovsky, and there was no evidence presented at trial to
`support a finding that Ditiatkovsky had been extorted.
`The decisions in United States v. Lawrence, 189 F.3d 838, 847 (9th Cir. 1999) and United
`States v. Reed, 80 F.3d 1419, 1423 (9th Cir. 1996), point to the same conclusion. In each case
`restitution for conduct that was not part of the specific counts of conviction was based on explicit
`findings that the losses were caused by conduct that was part of the same scheme or conspiracy
`as the counts of conviction.
`In contrast, Lazarenko’s conviction for the extortion of Kiritchenko and the conspiracy to
`launder the proceeds of that extortion, does not establish guilt for the extortion of Ditiatkovsky.
`Lazarenko’s guilt and Ditiatkovsky’s entitlement to restitution would have to be established, if at
`all, by new and independent evidence. This is not the function of a restitution hearing under the
`MVRA.
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`For the Northern District of California
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`United States District Court
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`Case3:00-cr-00284-CRB Document1221 Filed05/30/07 Page3 of 3
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` In view of the Court’s determination that Ditiatkovsky does not qualify as a victim, it
`is not necessary to reach the question of whether Ditiatkovsky’s petition requesting restitution
`was timely filed.
`For the reasons set forth above, Ditiatkovsky’s petition requesting restitution is
`DENIED.
`Dated:
`
`________________________________
`Martin J. Jenkins
`United States District Judge
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