United States v. Yevgeniy Nikulin
20-10322
| 9th Cir. | Dec 22, 2021Background
- Yevgeniy Nikulin was convicted for computer intrusions into LinkedIn, Formspring, and Dropbox; the district court sentenced him to 88 months and ordered $1,734,000 in restitution.
- The government relied on non-itemized, unsworn victim letters summarizing losses to support the restitution award; trial testimony and logs showed victim responses but did not detail incurred costs.
- The district court also applied a 14-level Guidelines enhancement under U.S.S.G. § 2B1.1 based on a conservative loss estimate exceeding $550,000 for sentencing.
- The government introduced evidence of an uncharged Automattic intrusion linked to the email chinabig01@gmail.com to show identity and a distinctive modus operandi; the court gave a limiting jury instruction.
- The Ninth Circuit affirmed the conviction and the sentencing enhancement and the admission of the Automattic evidence, but reversed the $1,734,000 restitution award as unsupported by admissible evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of $1,734,000 restitution award | Victim letters and trial evidence support losses and restitution amount | Letters were unsworn, non-itemized; other evidence didn’t prove costs directly tied to offenses | Reversed — award plainly erred; evidence insufficient to support restitution (vacated) |
| Sufficiency of other evidence for restitution | Trial logs/testimony show victim responses, supporting loss finding | Such evidence didn’t quantify costs incurred; insufficient to replace itemized proof | Court found insufficient for restitution, but noted a conservative loss estimate could support sentencing loss determination |
| Sentencing loss enhancement (§2B1.1) | Evidence about company size, responses, and statements support >$550,000 loss | Lack of precise accounting means enhancement unsupported | Affirmed — 14-level enhancement appropriate based on reasonable conservative estimate; any standard-of-review error harmless |
| Admission of uncharged Automattic intrusion (Fed. R. Evid. 404(b)) | Admissible to show identity and distinctive MO | Unfairly prejudicial and suggested propensity | Affirmed — admissible for identity/MO; limiting instruction and Rule 403 balancing acceptable |
Key Cases Cited
- United States v. Waknine, 543 F.3d 546 (9th Cir. 2008) (victim loss proof and limits on restitution evidence)
- United States v. Tsosie, 639 F.3d 1213 (9th Cir. 2011) (requirements for proving restitution losses)
- United States v. Tadios, 822 F.3d 501 (9th Cir. 2016) (permitting reasonable loss estimates for sentencing when supported)
- United States v. Wijegoonaratna, 922 F.3d 983 (9th Cir. 2019) (harmless error standard when sentencing findings supported by clear and convincing evidence)
- United States v. Romero, 282 F.3d 683 (9th Cir. 2002) (404(b) evidence admissible to prove identity)
- Hayes v. Ayers, 632 F.3d 500 (9th Cir. 2011) (probative value vs. prejudice analysis under Rule 403)