United States v. Malik , 241 F. App'x 873 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-27-2007
USA v. Malik
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1591
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-1591
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UNITED STATES OF AMERICA
Appellee
v.
ABDUS SALAAM MALIK
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 04-185)
District Court: Hon. Anne E. Thompson
——————————
Submitted Under Third Circuit LAR 34.1(a)
April 19, 2007
Before: McKEE and AMBRO, Circuit Judges, and MICHEL,* Judge
(Opinion filed: July 27, 2007)
The Honorable Paul R. Michel, Chief Judge of the United States Court of
*
Appeals for the Federal Circuit, sitting by designation.
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OPINION
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McKEE, Circuit Judge
Abdus Salaam Malik appeals the judgment of conviction and sentence that
was imposed after a jury convicted him of offenses arising out of his illegal
purchase of firearms. For the reasons below, we will affirm both the conviction
and the sentence.1
I.
Because we write primarily for the parties, we need not recite the facts of
this case except where necessary to our discussion.
Malik first argues that his conviction must be reversed because the District
Court included the so-called “two-inference” charge in the jury instructions. The
Court stated, “[i]f you view the evidence in the case as reasonably permitting two
conclusions, one of innocence, the other of guilt, then you should adopt the
conclusion of innocence, or not guilty, because the burden on the Government is to
prove beyond a reasonable doubt, not 50/50.” App. 390. Malik contends that this
misled the jury about the government’s burden to proof, thereby denying him due
process of law.
We have consistently criticized this language in a reasonable doubt
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231.
1
We have jurisdiction over the challenges to the final judgment of conviction
pursuant to 28 U.S.C. § 1291, and we review the sentence that was imposed
pursuant to 18 U.S.C. § 3742(a).
2
instruction. See United States v. Isaac, 134 F.3d 199, 203 (3d Cir. 1998); United
States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995). In its brief, the Government
concedes that, although technically correct, “an instruction of this type . . . is
disfavored and should not have been given.” Government’s Br. at 8. Nevertheless,
as the Government also notes, while consistently criticizing this charge, we have
consistently held that it does not automatically result in a due process violation.
Rather, we have explained: “[d]ue process is satisfied if the instructions, taken as a
whole, accurately convey the concept of reasonable doubt to the jury.” Isaac, 134
F.3d at 203. Thus, we must “consider whether this deficiency was rectified by the
remainder of the reasonable doubt instruction.” Id. (internal citations omitted); see
also United States v. Thayer, 201 F.3d 214, 221 (3d. Cir 1999).
Here, the Court used the phrase “50/50,” to explain that the presumption
and the appropriate burden of proof required an acquittal if the defendant’s guilt
was not established. When the court used that term, it had already spoken of
“reasonable doubt” in connection with the Government’s burden but had not yet
defined the term. App. 389. The Court explained that “the burden on the
Government is to prove beyond a reasonable doubt, not 50/50.” App. 390
(emphasis added). The Court then explained the term using familiar contrasts to
“mathematical certainty” and “all possible doubt.” App. 391-92; see, e.g., United
States v. Milan, 304 F.3d 273, 284-85 (3d Cir. 2002). Moreover, as the
Government notes, during closing, defense counsel told the jury: “[t]he judge read
to you a very good explanation of reasonable doubt. . . . You have it before you. . .
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. I encourage you to refer to it.” App. 432, Appellee’s Br. at 17. We have
reviewed the Court’s charge in its entirety, and we agree that, though the inclusion
of “50/50" was unfortunate, it was not sufficient to undermine the Court’s
instruction on reasonable doubt taken as a whole, as it was “not reasonably likely
to have mislead the jury.” See Victor v. Nebraska, 511 U.S. 1, 6 (1994) (“the
proper inquiry is not whether the instruction ‘could have’ been applied in an
unconstitutional manner, but whether there is a reasonable likelihood that the jury
did so apply it”).
II.
Malik argues for the first time on appeal that the prosecutor’s use of the
phrase “the Muslim guy” during direct examination of a witness was prosecutorial
misconduct that unfairly prejudiced him at the trial. Since defense counsel did not
initially object and the Court instructed the Assistant United States Attorney to use
a different reference as soon as counsel did object, Malik argues that the Court
should have declared a mistrial sua sponte. Our review is for plain error.
Prosecutorial misconduct only justifies a new trial where the “error in the
prosecutor’s comments is so serious as to ‘undermine the fundamental fairness of
the trial and contribute to a miscarriage of justice.’” United States v. Pungitore,
910 F.2d 1084, 1126 (3d Cir. 1990) (quoting United States v. Young, 470 U.S. 1,
11-12 (1985)). Even where it is alleged that misconduct was intentional and
pervasive, the focus on appeal is the impact upon the jury whether it “distracts” the
trier of fact. Marshall v. Hendricks, 307 F.3d 36, 68 (3d Cir. 2002) (citing Darden
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v. Wainwright, 477 U.S. 168, 182 n.15 (1986)). “Especially when addressing plain
error, a reviewing court cannot properly evaluate a case except by viewing such a
claim against the entire record.” Young, 470 U.S. at 16.
Malik argues that, following the tragedy of “September 11,” referring to
him as the “Muslin guy” inflamed the jurors’ emotions against him. We agree that
the term could have an impact on the jury. However, the term was only used
because the witness being examined, Charlene Parker, did not know either of the
men her uncle met on March 12, 2004 by name. She referred to the man they
picked up at Cooper Hospital as “the other guy” or “the guy that was supposed to
be my cousin.” App. 81. Parker referred to the man she later identified as Malik
as “the Muslim guy” to distinguish him from “the other guy” because Malik was
wearing a khaffiyeh.2 App. 86.
Malik makes much of the Government’s using the phrase thirteen times.
Appellant’s Br. at 1, 5, 17. When Parker first spoke of “the Muslim guy,” she had
not yet identified Malik as the person she was referring to. App. 81-83. Prior to
the in-court identification, the Government had little choice but to adopt that term
without including his name in the question and thereby improperly leading the
witness. Although the references could have been more innocuous by identifying
Malik as “the man who was wearing a knit cap when I saw him on a previous
occasion,” the Court surely should not have declared a mistrial based on Parker’s
Charlene Parker did not recall whether Malik was wearing a khaffiyeh on
2
March 12, 2004. App. 86. Detective Sawicki testified that the man later arrested
had been wearing a khaffiyeh that day. App. 163.
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manner of identifying him.
Once Parker made her in-court identification, the Government adopted the
witness’s phrase for Malik (“the Muslim guy”) five more times before the defense
objected. App. 85, 86, 88. One of these occasions was a specific request to
explain why she referred to him that way. App. 86. After the Court sustained the
objection to the usage, the Government referred to the defendant as “Mr. Malik.”
App. 88, 89. During cross-examination, Charlene Parker again referred to Malik
as “Muslim guy,” although the defense invariably called him Mr. Malik. App.
103.
Although the Assistant United States Attorney (AUSA) could have been
more careful about the use of the term, the circumstances of Parker’s examination
certainly did not require a mistrial, and the District Court properly and promptly
responded when defense counsel objected.
III.
Finally, Malik argues that the 96-month sentence imposed by the District
Court is unreasonable because it exceeded the Sentencing Guidelines range of 63
to 78 months as calculated by the District Court. Appellant’s Br. at 16. The
District Court did not characterize the sentence enhancement as a formal departure
from the Guideline range. Rather, the Court referred to it as an exercise of its
discretion based on the determination that a criminal history category of III did not
adequately reflect Malik’s actual criminal history. App. 529.
Since the Supreme Court’s decision in United States v. Booker, we review
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sentences for reasonableness using the factors set forth in 18 U.S.C. § 3553(a).
543 U.S. 220, 245-46. The sentence range calculated under the advisory
Sentencing Guidelines is among the factors to be considered. 18 U.S.C. §
3553(a)(4). In evaluating the reasonableness of the sentence, we must first
determine whether the sentencing court correctly calculated the Guideline range.
United States v. Cooper, 437 F.3d at 324, 327-28 (3d. Cir. 2006). We next
determine whether the trial court “considered the § 3553(a) factors and any
sentencing grounds properly raised by the parties which have recognized legal
merit and factual support in the record.” Id. at 332. We must then “ascertain
whether those factors were reasonably applied to the circumstances of the case.”
Id.
Although the Government has not appealed the sentence in this case, it does
argue that the District Court erred in calculating the Guidelines. The Government
notes that Malik served nine months for a May 26, 1995 probation violation.3
Government’s Br. at 32 (citing PSR ¶ 45). Since this incarceration was within ten
years of the March 12, 2004 crime of conviction, two additional criminal history
points should have been assigned but were not. U.S.S.G. §§ 4A1.1(b),
4A1.2(e)(2), 4A1.2(k). Criminal history points would then total 8, rather than 6,
3
The Government also argues that Malik’s incarceration through 2002
represented, at least in part, the serving out of the sentence imposed for his 1977
murder conviction and that three additional criminal history points should be
assessed per U.S.S.G. § 4A1.1(a). Since the Pre-sentence Investigation Report
(PSR) is unclear in this regard, we consider only the two points under § 4A1.1(b)
here. We do not, however, decide that the additional three points urged are
invalid.
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yielding a corrected criminal history category of IV and increasing the Guideline
range to 77 to 96 months. U.S.S.G. Sentencing Table, Ch. 5, Pt. A.
Although there is no fixed formula a trial court must employ to demonstrate
meaningful consideration of the § 3553(a) factors and arguments raised by the
defendant,4 we have also explained that merely stating that these have been
considered is insufficient. See United States v. Grier, 475 F.3d 556, 571 (3d Cir.
2007) (en banc) (holding trial court’s statement that “[t]he Court believes that 100
months is reasonable in view of the considerations of section 3553(a)” to be
insufficient); Cooper, 437 F.3d at 329 n.6.
Here, the District Court made it abundantly clear that the reason for the
enhanced sentence was that Malik’s extensive criminal history was not adequately
represented by a criminal history category of III. App. 529; see U.S.S.G. §
4A1.3(a). The Court insisted that the Government provide a chronological history
of Malik’s history of adult convictions and incarcerations. App. 513-19. In
addition, the District Court considered, but did not grant, the Government’s request
for a sentence of the statutory maximum of ten years. App. 528-29; see 18 U.S.C.
§ 924(a)(2); Grier, 475 F.3d at 566.
In not imposing this maximum, the Court specifically considered Malik’s
age. App. 529. Thus, we find that it considered the § 3353(a) factors as well as
arguments raised by Malik, and reasonably and fairly applied those factors to
Malik’s circumstances and the circumstances of the case.
4
See Cooper, 437 F.3d at 329
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IV.
For the foregoing reasons, we will affirm the judgment of conviction and
affirm the judgment of sentence.
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