21-3085-cr

United States v. Koshkin

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 2nd day of May, two thousand twenty-four. 

PRESENT: John M. Walker, Jr., 

Steven J. Menashi, 

Circuit Judges,

Orelia E. Merchant, 

District Judge.*

 ____________________________________________ 

UNITED STATES OF AMERICA, 

Appellee, 

v. No. 21-3085 

OLEG KOSHKIN, 

Defendant-Appellant.†

 ____________________________________________ 

* Judge Orelia E. Merchant of the United States District Court for the Eastern District of 

New York, sitting by designation. 

† The Clerk of Court is directed to amend the caption as set forth above. 
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For Appellee: EDWARD CHANG (Sandra S. Glover, on the 

brief), Assistant United States Attorneys, for 

Vanessa Roberts Avery, United States 

Attorney for the District of Connecticut, 

New Haven, CT. 

For Defendant-Appellant: JOHN S. WALLENSTEIN, Law Office of John S. 

Wallenstein, Garden City, NY.

Appeal from a judgment entered in the United States District Court for the 

District of Connecticut (Shea, J.). 

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED. 

Defendant-Appellant Oleg Koshkin appeals from a judgment of conviction 

entered on December 13, 2021, by the United States District Court for the District 

of Connecticut. After a jury trial, Koshkin was found guilty of one count of 

conspiracy to cause intentional damage to a protected computer in violation of 

18 U.S.C. § 371 and 18 U.S.C. §§ 1030(a)(5)(A), 1030(b), and 1030(c)(4)(B); and one 

count of aiding and abetting the causing of intentional damage to a protected 

computer in violation of 18 U.S.C. §§ 1030(a)(5)(A), 1030(b), and 1030(c)(4)(B) and 

18 U.S.C. § 2. The jury found that Koshkin, through his company Crypt4u, 

provided crypting services to Peter Levashov, who operated an illegal botnet

known as the “Kelihos botnet.” 

We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal. 

I 

First, Koshkin argues that the government did not present sufficient 

evidence as to either count. He contends that there was insufficient evidence that 
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he knowingly participated in the conspiracy, that he knowingly aided and abetted 

Levashov in committing a crime, or that the Kelihos botnet damaged at least ten 

computers. 

We review a challenge to the sufficiency of the evidence de novo, “viewing 

the evidence in the light most favorable to the government, drawing all inferences 

in the government’s favor and deferring to the jury’s assessments of the witnesses’ 

credibility.” United States v. Zhong, 26 F.4th 536, 559 (2d Cir. 2022) (internal 

quotation marks omitted). A defendant “cannot prevail on a sufficiency-of-theevidence challenge if any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Id. at 560 (internal quotation 

marks omitted). 

The government presented sufficient evidence from which a jury could 

reasonably conclude that Koshkin knew that Levashov was operating an illegal 

botnet and intentionally assisted Levashov in doing so. The evidence showed that 

Crypt4u developed a high-volume automated crypting system specifically for 

Levashov’s Kelihos botnet. Furthermore, the government presented transcripts of 

online chat conversations between Levashov and the user handle 

“admin@crypt4u” regarding crypting services. In one such chat, Levashov wrote 

that he was operating a “Clickbot,” which Levashov testified is a “type of bot 

which generate[s] fake traffic.” Gov’t App’x 153, 155. And there was evidence that 

Koshkin was the user behind the admin@crypt4u handle. 

The government also presented sufficient evidence from which a jury could 

reasonably conclude that the botnet infected thousands of computers, let alone ten 

or more.

II 

Second, Koshkin argues that the government did not present sufficient 

evidence that venue was proper in the District of Connecticut, and he contends 

that the district court erred in failing to instruct the jury as to venue.
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“Venue is proper in any district in which [the] defendant committed the 

crime, and the government must prove venue by a preponderance of the 

evidence.” United States v. Bala, 236 F.3d 87, 95 (2d Cir. 2000). Venue is proper 

under 18 U.S.C. § 1030(a)(5)(A) when the government establishes that the 

defendant “damaged a protected computer located in the [district].” United States 

v. Calonge, 74 F.4th 31, 36 (2d Cir. 2023). 

However, “even though [venue] is afforded significant Constitutional 

protection, a defendant’s right to proper venue is a personal defense subject to 

waiver.” United States v. Novak, 443 F.3d 150, 161 (2d Cir. 2006). And we have held 

that a defendant’s “objections to venue are waived” when the defendant “fail[s] to 

object to venue at any point during the district court proceedings.” United States v. 

Matera, 489 F.3d 115, 124 (2d Cir. 2007); see also United States v. Grammatikos, 633 

F.2d 1013, 1022 (2d Cir. 1980) (explaining that when a defendant did not request a 

jury instruction as to venue and did not object “to the court’s failure to include 

such charges ... we have long and consistently held such issues to have been 

waived” and citing cases); Bala, 236 F.3d at 95 (“[A] defendant’s objections to 

venue are waived unless specifically articulated in defense counsel’s motion for 

acquittal.”) (internal quotation marks and alteration omitted). 

Here, Koshkin did not object to venue in the district court or request a jury 

instruction as to venue. He has therefore failed to preserve the issue for appeal. In 

any event, the district court’s failure to instruct the jury as to venue was not plainly

erroneous. See Grammatikos, 633 F.2d at 1022 (holding that the defendant had 

waived venue by failing to request a jury instruction as to venue and further 

concluding that the district court’s failure to instruct the jury was not plainly

erroneous). There was evidence that the botnet infected tens of thousands of 

computers, and Levashov testified that he “[p]robably” had “at least one bot from 

every state.” Gov’t App’x 204. A jury could find by a preponderance of the 

evidence that at least one of the infected computers was located in Connecticut. 
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* * * 

We have considered Koshkin’s remaining arguments, which we conclude 

are without merit. For the foregoing reasons, we affirm the judgment of the district 

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court