NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30085

Plaintiff-Appellee, D.C. No. 2:11-cr-00070-RAJ-1 v.

ROMAN SELEZNEV, AKA bandysli64, MEMORANDUM* AKA Bulba, AKA Roman Ivanov, AKA nCuX, AKA Ruben Samvelich, AKA shmak, AKA smaus, AKA Track2, AKA Zagreb,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted March 6, 2019 Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,** District Judge.

Defendant Roman Seleznev appeals his conviction and sentence on 38

counts under 18 U.S.C. § 1343 (Wire Fraud), 18 U.S.C. § 1030(a)(5), (c)(4)(B)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. (Intentional Damage to a Computer); 18 U.S.C. § 1030 (Obtaining Information

from a Protected Computer), 18 U.S.C. § 1029(a)(3) (Access Device Fraud), and

18 U.S.C. § 1028A(a)(1) (Aggravated Identity Theft). We have jurisdiction under

28 U.S.C. § 1291 and we affirm.

1. We review the denial of a motion to dismiss an indictment based on

outrageous government conduct de novo, and its underlying factual findings for

clear error. United States v. Struckman, 611 F.3d 560, 573 (9th Cir. 2010).

Generally, how a defendant is brought to trial does not affect the government’s

ability to try him. United States v. Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir.

1995). We recognized two exceptions to this rule in Struckman. 611 F.3d at 571.

Neither of these recognized exceptions applies here. Because there is no

extradition treaty between the United States and the Maldives, U.S. agents did not

violate an extradition treaty. And because, as the district court reasonably found,

Seleznev’s apprehension occurred with the approval and cooperation of Maldivian

authorities, the U.S. agents’ conduct was not of the most “shocking and outrageous

kind” as to warrant dismissal of the indictment. For the same reasons, the district

court did not abuse its discretion in refusing to dismiss the indictment under its

supervisory powers. See id. at 574.

2. We review denial of a motion to suppress de novo and its underlying factual

findings for clear error. United States v. Fernandez, 388 F.3d 1199, 1234 (9th Cir.

2 2004). “Information offered to support a search warrant application becomes stale

when enough time has elapsed such that there is no longer ‘sufficient basis to

believe . . . that the items to be seized are still on the premises.’” United States v.

Grant, 682 F.3d 827, 835 (9th Cir. 2012) (quoting United States v. Lacy, 119 F.3d

742, 746 (9th Cir. 1997)). “[A] probable cause determination can be supported

entirely by circumstantial evidence.” United States v. Diaz, 491 F.3d 1074, 1078

(9th Cir. 2007).

Here, the affidavit gave a sufficient basis to believe that evidence of

Seleznev’s crimes would still be on his computer. Among other evidence, the

affidavit noted e-currency accounts connecting Seleznev to 2pac.cc, a website that

had been active in 2014. That information was not stale in July 2014. On this

record the district court did not err in denying the motion to suppress.

3. We review de novo whether a waiver was made “knowingly and

voluntarily.” United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016). In the

context of reviewing a waiver, the related factual findings are reviewed for clear

error. Id. Under Federal Rule of Evidence 410, “a statement made during plea

discussions” is “not admissible against the defendant who . . . participated in the

plea discussions.” A defendant can, however, waive this privilege, so long as the

waiver is knowing and voluntary. United States v. Mezzanatto, 513 U.S. 196, 210

(1995).

3 We conclude that the district court did not clearly err in determining that

Seleznev partially waived his Rule 410 privilege. And we further conclude that

Seleznev did not demonstrate any prejudice from the district court’s instruction

that his lawyers could not present evidence contrary to his statements without a

good faith basis to do so.

4. We review for abuse of discretion the district court’s ruling on the relevance

of classified documents. United States v. Miller, 874 F.2d 1255, 1275 (9th Cir.

1989). We review de novo the district court’s interpretation of the Classified

Information Procedures Act (“CIPA”), 18 U.S.C. App. III. Id. We have

previously affirmed in camera and ex parte review of CIPA information. See

United States v. Sedaghaty, 728 F.3d 885, 908 (9th Cir. 2013). Here, the district

court did not err in its review of the government’s CIPA application.

5. The contentions about ineffective assistance of counsel need not and will not

be reviewed on this appeal because, “as a general rule, we do not review

challenges to the effectiveness of defense counsel on direct appeal.” United States

v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005), overruled on other grounds by

United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.2007) (en banc). That

general rule squarely applies here, because the record is not so fully developed as

to make it proper for immediate review. We deny Seleznev’s ineffective assistance

of counsel claims without prejudice to his ability to raise these claims in a later

4 proceeding under 28 U.S.C. § 2255. See United States v. McGowan, 668 F.3d 601,

605–06 (9th Cir. 2012).

6. We review sentences for abuse of discretion. United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc). “A substantively reasonable sentence is

one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s

sentencing goals.” United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009)

(citing 18 U.S.C. § 2553(a)). We “afford significant deference to a district court’s

sentence under 18 U.S.C. § 3553 and reverse only if the court applied an incorrect

legal rule or if the sentence was illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.” United States v.

Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir. 2017) (en banc) (internal quotation

omitted).

The district court did not abuse its discretion in sentencing Seleznev to 27

years in prison. Seleznev’s long sentence is not substantively unreasonable given

the harm that he undoubtedly caused to many businesses, the large sums Seleznev

gained from his scheme, his general lack of remorse, the need to deter other

offenders who may consider similar schemes, and the sentences received by

similarly situated defendants.

7. A district court must explain a sentence sufficiently to permit meaningful

appellate review. Carty, 520 F.3d at 992. We conclude that the district court gave

5 an adequate explanation for its sentence. The record shows that the district court

was aware of Seleznev’s medical condition but rejected it as a basis to lower his

sentence.

AFFIRMED.

6