FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-30251 Plaintiff-Appellee, D.C. No. v. 2:19-cr-00143-JLR-1 VOLODYMYR KVASHUK, Defendant-Appellant. OPINION Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Argued and Submitted October 7, 2021 Seattle, Washington Filed March 28, 2022 Before: Richard A. Paez, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen 2 UNITED STATES V. KVASHUK SUMMARY * Criminal Law The panel affirmed Volodymyr Kvashuk’s conviction on 18 fraud-related counts in a case in which Kvashuk stole $10 million in digital gift cards from his employer, Microsoft, using login credentials he filched from his coworkers. Kvashuk challenged the denial of his motion to suppress evidence seized from his house on the ground that the search warrant lacked probable cause, arguing that the warrant affidavit failed to establish a nexus between the unlawful activities and the places to be searched. Considering the totality of the circumstances, the panel concluded that the search warrant affidavit showed a fair probability that evidence of Kvashuk’s crimes would be found on a computer at his residence, and that there was therefore an adequate nexus between the unlawful activities and the place to be searched. The panel rejected Kvashuk’s argument that the evidence supporting the application was stale. Rejecting Kvashuk’s challenge to the district court’s denial of his request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), the panel wrote that Kvashuk identified no false or misleading statement in the affidavit, let alone one that the affiant made intentionally or recklessly. Kvashuk contended that his two convictions for aggravated identity theft, which stem from his use of coworkers’ accounts intended for testing the Microsoft Universal Store, are infirm because the test accounts do not * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. KVASHUK 3 constitute a “means of identification” under 18 U.S.C. § 1028A(a)(1), in that the accounts do not “identify a specific individual.” Rejecting this contention, the panel wrote that the test accounts’ purpose, prerequisites, and functionality do not bear on whether they “identify a specific individual”; that the test accounts here could be and did identify specific employees; and that the Universal Store team’s limited sharing of test accounts and passwords was insufficient to differentiate the test accounts from any other business email account associated with a specific person. Kvashuk contended that the district court violated his due process rights by preventing him from presenting a complete defense—in particular, by excluding evidence of his status in the United States as an asylum applicant from Ukraine. He argued that his sole defense to the prosecution’s theory that he used crypto currency to conceal the money trail from his crime was that he did not intend to defraud Microsoft but used Bitcoin as an asylum seeker to avoid detection …
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