UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4079

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VADYM VALERIYOVICH BORODYONOK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Robert G. Doumar, Senior

District Judge. (2:07-cr-00134-RGD-FBS-1)

Submitted: June 19, 2008 Decided: July 16, 2008

Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

William J. Holmes, Virginia Beach, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Joseph E. DePadilla, Assistant

United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

On August 1, 2007, Vadym Valeriyovich Borodyonok was

indicted for conspiracy to commit immigration fraud, in violation

of 18 U.S.C. § 371 (2000) (Count One) and marriage fraud, in

violation of 8 U.S.C. § 1325(c) (2000) (Count Two). Following a

jury trial, Borodyonok was convicted of both counts. He now

appeals, alleging he was denied a fair trial because the trial

court’s interjections clearly conveyed to the jury the court’s

belief that Borodyonok was guilty and because the court essentially

directed a guilty verdict through its biased jury instructions. We

affirm the judgment of the district court. 

Borodyonok failed to object to the district court’s

interjections and questions. Accordingly, his claim is reviewed

for plain error. Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 732 (1993). As support for his claim that the

court’s interruptions deprived him of a fair trial, Borodyonok

notes that the district court sua sponte interrupted defense

counsel sixteen times, told defense counsel to move along eight

times, and held three sidebars in the presence of the jury where he

criticized defense counsel. We have independently reviewed the

record and determined that the interjections complained of by

Borodyonok were well within the district court’s discretion to

efficiently manage the presentation of admissible evidence.
*To the extent Borodyonok claims bias by the district court in

threatening defense counsel with sanctions in front of the jury,

his claim is without merit as the record clearly shows the jury was

outside the courtroom when counsel was threatened with a fine for

asking repetitious questions. Also, Borodyonok suffered no

prejudice in being initially prevented from questioning his

girlfriend on why he was sent to Los Angeles because, immediately

following a sidebar, counsel was permitted to question the witness

on this point. 

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Accordingly, Borodyonok fails to demonstrate the district court

erred, much less committed plain error.* 

Moreover, when the transcript is viewed as a whole, the

record reveals no bias on the part of the district court as the

district court also told the Government’s attorney to “move along,”

corrected and criticized the Government’s attorney in front of the

jury, and took an active role in the questioning of at least one of

the Government’s witnesses. United States v. Parodi, 703 F.2d 768,

776 (4th Cir. 1983). The transcript shows at most a trial judge’s

ordinary efforts to control the mode and order of the presentation

of evidence and to prevent Borodyonok’s trial from unnecessarily

consuming judicial resources. United States v. Castnor, 50 F.3d

1267, 1274 (4th Cir. 1995); United States v. Smith, 452 F.3d 323,

332 (4th Cir. 2006). Accordingly, Borodyonok’s claim fails. 

Borodyonok next claims the district court exhibited a

lack of impartiality in charging the jury that, to sustain a

conviction on Count One, the Government had to prove either

conspiracy to evade immigration laws or conspiracy to make a false

statement to immigration officials, even though the two clauses
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were joined by the word “and” in the indictment. As the evidence

was sufficient on either of the acts charged, the instruction was

proper, and Borodyonok’s claim is without merit. United

States v. Hawkes, 753 F.2d 355, 357 (4th Cir. 1985) (citing

Turner v. United States, 396 U.S. 398, 420 (1970)). 

Borodyonok also claims the district court’s lack of

impartiality was demonstrated in charging the jury that the

Government need only prove that at least one of Borodyonok’s

purposes in marrying Ashley Farrell, a U.S. citizen, was to evade

the immigration laws and that it did not have to be his sole

purpose. That Borodyonok may have married Farrell with the

additional intent of having consensual sex with her, as he claimed,

or raping her, as she alleged, does not somehow mitigate his intent

to violate the immigration laws. Accordingly, his claim is without

merit. 

Borodyonok also claims the district court’s bias was

exhibited in instructing the jury that “it did not matter which two

people entered into the illegal agreement or conspiracy.” The

district court properly instructed the jury twice that the

Government had to prove Borodyonok knowingly, willfully and

voluntarily became a participant in or member of the conspiracy.

Accordingly, Borodyonok’s claim is without merit. 

Finally, Borodyonok claims the district court

demonstrated its lack of impartiality in instructing the jury that
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“[t]here isn’t any issue about overt acts in this case. We need

not spend a whole lot of time on it, because the marriage actually

took place, and that’s an overt act if you find there was an

agreement.” The district court also provided detailed instruction

as to a number of other facts as to which there was no dispute, and

emphasized that the primary issue for the jury’s consideration was

the defendant’s intent in entering into the marriage and whether an

agreement existed sufficient to support the conspiracy charge.

Any error by the district court in instructing the jury

was harmless as defense counsel admitted during closing argument

several of the overt acts occurred; counsel informed the jury that

the issue for them to decide was Borodyonok’s intent in marrying

Farrell; the district court gave the jury a cautionary instruction

related to its comments on the evidence; and the evidence of

Borodyonok’s guilt was overwhelming. Neder v. United States, 527

U.S. 1, 18 (1999). Accordingly, we affirm the judgment of the

district court. We dispense with oral argument as the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process. 

AFFIRMED