Marshall—who is from Lithuania and speaks Russian—offered his translation as, “He said he
hates the Jews. ‘Who is Jewish over here?’” (Jd. at PageID 219.) Marshall—who was
intoxicated (/d. at PageID 227)—yelled that he was Jewish.' Someone then struck Marshall in
the back of the head, knocking him to the ground. (/d. at PageID 219.) Others struck and kicked
him while he lay on the ground until a person named “Mikail” helped him into his fiancée’s car.
(id. at PageID 219-20.) Marshall suffered injuries, including a left orbital floor fracture, a
periorbital hematoma of his left eye, and rib contusions. (/d. at PageID 221-22; Govt. Exhs. 2, 3
and 5.) He became concerned about his injuries and called 911. (/d. at PageID 221.) During the
911 call, he explicitly stated he was beaten for being Jewish. (Govt. Exh. 4.)

Paul Marshall’s fiancée, Anna Kapitula, also speaks Russian. She, too, was present
outside the Mirage on February 4, 2017, and heard Koch saying (in Russian) that he “hates all
the Jews and wants to slaughter them.” (Trial Transcript, Doc. 49 at PageID 276.) Koch—
whose name she determined by viewing his brother’s Facebook account—asked in Russian,
“Who’s Jewish here?” (id. at PageID 276-77.) When Marshall responded that he was Jewish, a
“group of guys” ran at Marshall and began beating him. (/d. at PageID 277-78.) Kapitula did
not see whether Koch was one of the attackers. (/d. at PageID 277.) However, she identified
Koch as the person who made the threatening, anti-Semitic remarks. (/d. at PageID 281.)

Slavik Minyalo, another bi-lingual Russian and English speaker, was also at the Mirage
on February 4, 2017. (Doc. 49 at PageID 321-22.) He was inside the restaurant and did not see
the attack, but he heard a “guy” “screaming he will cut all the Jews.” (Jd. at PageID 325.) He

saw the same man running after Marshall and kicking Kapitula’s car tire as she drove Marshall to

' Marshall acknowledged at trial that he is not actually Jewish, but he admits representing himself as Jewish on the
night in question. (Doc. 48 at PageID 224.)


Jury Instruction § 13.02(2)(C) and Committee Notes; see also United States v. McGuire, 744
F.2d 1197, 1201 (6th Cir. 1984), A matter is “within the jurisdiction of the executive branch of
the United States government” if the executive branch agency—in this case the FBI—has the
power to exercise authority in that matter. United States v. Grenier, 513 F.3d 632, 638 (6th Cir.
2008) (quoting United States v. Shafer, 199 F.3d 826, 829 (6th Cir. 1999)).

On October 18, 2018, Koch, accompanied by a Russian-language interpreter, voluntarily
provided a statement to FBI Special Agent Kevin Gormley. (Doc. 49 at PageID 416-17.) The
FBI is a part of the executive branch of government, and it is within the jurisdiction of the FBI to
investigate hate crimes. (Jd. at PageID 422.) Gormley typed the statement as Koch made it.
After he finished, the translator translated the entire document, and both Koch and Gormley
signed it, indicating that the written statement is “accurate and correct to the best of my
knowledge.” (/d. at PageID 416-17; Government Exh. 6.) Koch’s signed statement explains
that the fight outside the Mirage on February 4, 2017, involved only Paul Marshall and Mikail
Bashirov and states, in part, “I... never said anything bad about Jews that night. . . I did not get
into a fight that night. . . I never said I hated Jews and I never said I wanted to kill Jews.” (Govt.
Exh. 6 at 2.)

However, as detailed above, the Government has proven beyond a reasonable doubt that
on February 4, 2017, Koch used an offensive Russian slang term to describe Jewish people,
announced his hatred of Jewish people, expressed a desire to “cut” or “slaughter” Jews, and then
immediately attacked the lone man who identified himself as Jewish. Thus, the statement he
knowingly and intentionally gave the FBI in direct contradiction of those facts was false, and he

knew it to be false at the time. Made to an investigating agent only weeks before trial, the


perceived religion must be “the ‘reason’ the defendant decided to act . . . that is, ‘the straw that
broke the camel’s back.” /d. at 592 (quoting Burrage v. United States, 134 S.Ct. 881, 888
(2014).

The Court finds that the Government has proved beyond a reasonable doubt that Koch
willfully caused bodily injury to Marshall because he perceived Marshall to be Jewish. On
February 4, 2017, outside the Mirage Restaurant near Cincinnati, Ohio, Igor Titov heard a man
he did not know at the time yelling in Russian. Titov—who speaks Russian—testified that the
repeatedly yelled phrases translated as “Who is Jew?” and “Who is Jew here?” (Trial Transcript,
Doc. 48 at PageID 182-83.) When Marshall (also known as Paulius Borisas) responded that he
was Jewish, the man who was yelling ran up, knocked Marshall to the ground from behind and
began hitting him. (/d. at PageID 186.) Others joined in punching and kicking Marshall as he
was on the ground, and Titov grabbed and held the attacker in an effort to stop the fight. (/d. at
PageID 186-87.) Once the fight had been stopped, the attacker “kept running around the parking
lot” saying he would like to “cut” a Jew and using an offensive Russian-language slang term for
Jews. (/d. at 187-88.) Titov could see that Marshall was injured at the scene. (/d. at PageID
188.)

During the investigation, an FBI special agent showed Titov a photo album of 27 drivers’
license pictures in an effort to identify the assailant. (Trial Transcript, Doc. 49 at PageID 424—
25.) Titov selected photo number 15 of 27—the driver’s license photo of Izmir Koch—saying
that it looked “very much like the guy that caused it.” (/d. at PageID 429-30.) In court, Titov
identified the attacker as Izmir Koch. (Doc. 48 at PageID 197).

Similarly, Paul Marshall testified that he was standing outside the Mirage with Titov and

others on February 4, 2017, when a man began yelling in Russian. (Doc. 48 at PageID 216-18.)


safety. (Jd. at 324-25.) Minyalo also heard the man using the same offensive Russian slang
term for Jewish people that Titov reported Koch using,” (id. at PagelD 326.)

Sherif Ispahi speaks Turkish, Russian and English. (Doc. 49 at PageID 332-33.) He is
friendly with both Koch and Marshall, but he was not present at the Mirage on February 4, 2017.
(Id. at 333-34.) Weeks after the incident at the Mirage, Ispahi facilitated a meeting to make
peace between Marshall and the Russian Turk community, of which Koch is a member. (Doc.
49 at PageID 378.) At Ispahi’s request, Marshall withdrew his police report because “everybody
had been drinking” and he wanted to forgive and not cause additional problems for anyone.
(Doc. 48 at PageID 224-25.) Indeed, Marshall and Kapitula even hired an attorney because they
“thought she could get us out of testifying.” (Doc. 49 at PageID 296.)

Several witnesses testified that Muslims and Jews from Russia, Turkey and Uzbekistan—
the region from which Koch and several witnesses immigrated to avoid persecution—respect
each other and share certain religious traditions. (See, e.g., Doc. 49 at PageID 368-70.)
Notwithstanding these facts, the testimony cited above establishes that on February 4, 2017,
Koch used an offensive Russian slang term to describe Jewish people, announced his desire to
“cut” or “slaughter” Jews, and then immediately attacked the lone man who identified himself as
Jewish, causing him bodily injury.

Based on the evidence presented, the Court finds that the Government has proven beyond
a reasonable doubt that the Defendant willfully caused bodily injury to Marshall because of
Marshall’s perceived religion, in violation of 18 U.S.C. § 249(a)(1). Therefore, the Court finds

Mr. Koch GUILTY of the charge set forth in Count 1 of the Superseding Indictment.

2 Minyalo explained that the slang term used is so offensive that it is the Russian-language equivalent of calling an
African-American the “N word.” (Doc. 49 at PageIlD 325-26.) Titov explained the word in a similar way. (Doc. 48
at PageID 188.)


statement was material to the investigation of an alleged hate crime, a matter within the
jurisdiction of the FBI, part of the executive branch of the United States government.

Based on the evidence presented, the Court finds that the Government has proven beyond
a reasonable doubt that the Defendant knowingly made a false statement, in violation of 18
U.S.C. § 1001. Therefore, the Court finds Mr. Koch GUILTY of the charge set forth in Count 2
of the Superseding Indictment.
Ill. CONCLUSION

For the foregoing reasons, the Court finds the Defendant GUILTY on both Counts One

and Two of the Superseding Indictment.

IT IS SO ORDERED.

Dated: Det | Z 2ol? on q. ye
Judge Susan J. D\oft
United States District Court



IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
UNITED STATES OF AMERICA,
Case No. 1:18-cr-34
Plaintiff,
Judge Susan J. Dlott
v.
: VERDICT, FINDINGS OF FACT
IZMIR KOCH, : AND CONCLUSIONS OF LAW
Defendant. :

The Court conducted a bench trial in this matter from November 13, 2018 through
November 15, 2018. Pursuant to Federal Rule of Criminal Procedure 23(c), the Court makes the
following findings of fact and conclusions of law and finds Koch GUILTY on Counts One and
Two of the Superseding Indictment.

I PROCEDURAL HISTORY

A federal grand jury indicted Defendant Izmir Koch on a Hate Crime charge, in violation
of 18 U.S.C. § 249. (Doc. 3.) After plea negotiations failed, Koch—accompanied by a Russian-
language interpreter—made an innocence proffer to agents from the Federal Bureau of
Investigation (“FBI”) on October 18, 2018. Based on statements he made during the innocence
proffer, the United States filed a Superseding Indictment adding a charge for making False
Statements in violation of 18 U.S.C. § 1001. (Doc. 38.)

The Superseding Indictment charged him as follows:

COUNT ONE
(Hate Crime)

On or about February 4, 2017, in the Souther District of
Ohio, the defendant, IZMIR KOCH, willfully caused bodily
injury to Victim-1 because of the perceived religion of Victim-1; to


B. Count 2 — False Statements

Count two of the Superseding Indictment alleges that on or about October 18, 2018,
Defendant Izmir Koch, in a matter within the jurisdiction of the executive branch of the United
States Government, knowingly and willfully made materially false, fictitious, and fraudulent
statements and representations; to wit, Koch represented to FBI agents that Koch never said
anything bad about Jews that night; that Koch was not involved in a fight that night; and that the
entire fight consisted of two punches, in violation of 18 U.S.C. § 1001. (Doc. 39 at PageID 107.)
To convict Koch on count two, the Government must prove beyond a reasonable doubt that: (1)
Koch made a statement or representation; (2) the statement was false, fictitious, or fraudulent; (3)
the statement or representation was material; (4) Koch acted knowingly and willfully; and (5) the
statement pertained to a matter within the jurisdiction of the executive branch of the United
States government. United States v. Geisen, 612 F.3d 471, 489 (6th Cir. 2010); United States v.
Steele, 933 F.2d 1313, 1318-1319 (6th Cir. 1991) (en banc).

A statement is “false” or “fictitious” if it was untrue when it was made, and the
Defendant knew it was untrue at that time. A statement is “fraudulent” if it was untrue when it
was made, the Defendant knew it was untrue at that time, and the Defendant intended to deceive.
United States v. Brown, 151 F.3d 476, 484 (6th Cir. 1998) (quoting United States v. Shah, 44
F.3d 285, 289 (Sth Cir. 1995)). A “material” statement or representation is one that has the
natural tendency to influence or is capable of influencing a decision or function of a government
entity, in this case, the FBI. United States v. White, 270 F.3d 356, 365 (6th Cir. 2001) (citing
United States v. Lutz, 154 F.3d 581, 588 (6th Cir. 1998)); United States v. Dedhia, 134 F.3d 802,
806 (6th Cir. 1998). An act is done “knowingly and willfully” if it is done voluntarily and

intentionally, and not because of mistake or some other innocent reason. Sixth Circuit Pattern


wit, KOCH hit and kicked Victim-1 after Victim-1 represented
that he was Jewish, causing injuries including a fracture of Victim-

1’s orbital floor.
All in violation of Title 18, United States Code, Section
249(a)(1).
COUNT TWO
(False Statements)

On or about October 18, 2018, in the Southern District of
Ohio, the defendant, IZMIR KOCH, in a matter within the
jurisdiction of the executive branch of the Government of the
United States, knowingly and willfully made materially false,
fictitious, and fraudulent statements and representations; to wit,
KOCH represented to agents of the Federal Bureau of
Investigation, which is an agency of the executive branch of the
federal government, that KOCH never said anything bad about
Jews that night; KOCH was not involved in a fight that night; and
the entire fight consisted of two punches.

All in violation of title 18, United States Code, Section
1001.

(Doc. 38 at PageID 105) (emphasis in original).

On March 21, 2018, Koch pled “not guilty” to the original Indictment. Koch entered a
“not guilty” plea to the Superseding Indictment on November 9, 2018.

At the Final Pretrial Conference on November 2, 2018, Koch appeared with retained
counsel and a Russian language interpreter. During the conference, Koch’s attorney indicated
that he may prefer that the matter be tried to the bench rather than to a jury. The Government
stated it would not object to a bench trial. The Court instructed Koch’s attorneys to discuss the
decision carefully with Koch and inform the Court the following week whether the Defendant

preferred a bench trial or jury trial.
The next week, Defendant’s counsel informed the Court that they would like to proceed
with a bench trial, and Koch signed a written waiver of his right to a trial by jury. (Doc. 34.)

Before opening statements on the first day of trial, the Court again informed Koch of his right to


a jury trial. Koch—accompanied by his attomeys and a Russian-language interpreter-—
confirmed his desire to proceed with a bench trial. On November 13, 2018, a bench trial
commenced in this matter.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

According to Federal Rule of Criminal Procedure 23(c), “In a case tried without a jury,
the court must find the defendant guilty or not guilty. Ifa party requests before the finding of
guilty or not guilty, the court must state its specific findings of fact in open court or in a written
decision or opinion.” While no such request was made in this case, the Court chooses to provide
this written decision explaining the verdicts rendered. As Koch has been released on bond, the
brief delay caused by the Court’s decision to provide a written decision does not impact him
negatively.

A. Count 1 - Hate Crime

Count one of the Superseding Indictment alleges that on or about February 4, 2017, in the
Southern District of Ohio, Defendant Izmir Koch willfully caused bodily injury to Paul Marshall
because of Marshall’s perceived religion by hitting and kicking him after Marshall represented
that he was Jewish, causing injuries, in violation of 18 U.S.C. § 249(a)(1). (Doc. 39 at PageID
107.) To convict Koch on count one, the Government must prove beyond a reasonable doubt
that: (1) Koch willfully caused bodily injury to Marshall; and (2) Koch did so because of
Marshall’s actual or perceived religion, in this case, because Koch perceived Marshall to be
Jewish. 18 U.S.C. § 249; United States v. Miller, 767 F.3d 585 (6th Cir. 2014). “Because of” in
the context of the federal hate crime statute requires “a showing that [Defendant] would not have
acted but for the victim’s actual or perceived religious beliefs.” Miller, 767 F.3d at 591 (italics

in original). Even if a defendant has more than one motive for acting, the victim’s actual or