United States v. Abdulmalik Abdulla , 632 F. App'x 98 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4868
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ABDULMALIK ABDULLA,
Defendant - Appellant.
No. 14-4877
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AHMED MOHSSEN,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cr-00050-RDB-1; 1:14-cr-00050-RDB-2)
Submitted: November 30, 2015 Decided: December 3, 2015
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C., Towson,
Maryland, Warren E. Gorman, Rockville, Maryland, for Appellants.
Rod J. Rosenstein, United States Attorney, David I. Sharfstein,
Leo J. Wise, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Abdulmalik Abdulla and Ahmed Mohssen appeal their
convictions and respective 48-month sentences for four counts of
food stamp fraud, in violation of 7 U.S.C.A. § 2024(b)(1) (West
Supp. 2015), and seven counts of wire fraud, in violation of 18
U.S.C. § 1343 (2012). They argue that the district court erred
in striking a juror for cause, determining that each Defendant
was responsible for over $1 million in losses, and rejecting
Mohssen’s request for a minor or minimal role adjustment.
Finding no error, we affirm.
The Defendants contend that they were denied due process
under the Fifth Amendment when the district court struck
Prospective Juror Number 58 (Juror 58) for cause. During voir
dire follow up questioning, Juror 58 stated that she believed
that food stamp fraud was an everyday and common occurrence in
the Baltimore area. However, Juror 58 also answered that she
could be a fair and impartial juror. Defendants contend that
the strike created a jury that was biased in violation of the
Sixth Amendment because Juror 58 was excused for allegedly
invalid reasons. Defendants argue that because Juror 58 stated
that she had not personally seen food stamps traded for cash,
she was not closely familiar with anyone who had, and she could
be a fair and impartial juror, the court abused its discretion
in striking her for cause.
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We review a district court's determination whether to
remove a juror for cause for an abuse of discretion. United
States v. Hager, 721 F.3d 167, 190 (4th Cir. 2013). “It is
well-settled, of course, that an accused is entitled under the
Sixth Amendment to trial by a jury composed of those who will
adhere to the law and fairly judge the evidence.” United
States v. Smith, 451 F.3d 209, 219 (4th Cir. 2006). The trial
judge “is best situated to determine competency to serve
impartially.” Patton v. Yount, 467 U.S. 1025, 1039 (1984); see
United States v. Cabrera-Beltran, 660 F.3d 742, 749 (4th Cir.
2011). Thus, the trial judge possesses “very broad discretion
in deciding whether to excuse a juror for cause.”
Cabrera-Beltran, 660 F.3d at 749.
This court will recognize an abuse of such discretion and
will reverse “if the court demonstrates a clear disregard for
the ‘actual bias’ of an individual venireman.” United States v.
Turner, 389 F.3d 111, 115 (4th Cir. 2004). The appellate
court’s role is to determine whether “‘the trial judge [was]
very careful to see that the jury obtained is fair and
impartial,’” and permitted “sufficient information to come
forward so that he could exercise his discretion in an informed
way.” Id. at 118 (quoting Neal v. United States, 22 F.2d 52, 53
(4th Cir. 1927)). To this end, the court “is bound either to
make or to permit such inquiries to be made as will enable him
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in the exercise of his discretion to exclude from the jury
persons who have formed fixed opinions about the case and are
not fair and impartial jurors within the contemplation of the
law.” Neal, 22 F.2d at 53.
While the Defendants’ observations are not wholly lacking
in merit, they do not entitle them to relief. The court
considered that the juror’s response could cut against the
Government or the defense. Because the juror stated that
trading food stamps for cash is an everyday occurrence and that
it happens all the time, she could presume that the facts
alleged were true based on her perception that food stamp fraud
is rampant in Baltimore. Juror 58’s statements were based on
her outside sources rather than any evidence received during
trial. The strike could have preserved the Defendants’ due
process rights because Juror 58’s statements could easily have
led her to believe that the allegations must be true since such
acts are so frequently done in Baltimore. On the other hand,
the court was also concerned that Juror 58’s knowledge of the
widespread food stamp fraud may have caused her to be less
likely to convict because food stamp fraud is an everyday
occurrence and potentially not deserving of criminal prosecution
despite the statutory requirement.
The district court’s decision to strike Juror 58 for cause
was not an abuse of its wide discretion. Although the juror
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stated that she could be fair and impartial, there was a real
possibility of partiality based on her preconceived impression
and opinion. Further, although the Defendants complain that the
court violated their due process rights, their counsel did not
take the opportunity to question Juror 58. The trial judge is
in the best position to evaluate a potential juror’s
impartiality and credibility based on the juror’s answers to
questions presented. Cabrera-Beltran, 660 F.3d at 749. We have
reviewed the record and find that the court did not abuse its
discretion.
Next, the Defendants contend that the district court erred
in determining the amount of loss at sentencing at nearly $1.2
million. They contend that the cost of goods determined by
expert witness David Rutledge should be reduced because “several
items” were left out of the calculation; they, however, do not
identify these items. An increase in the cost of goods sold
would reduce the amount of the fraudulent funds received. The
Defendants also do not address the district court’s
determination that the reduction that they sought would require
a finding of a 39 percent addition in the cost of goods sold—
also unsupported by the trial evidence or any materials in their
sentencing memoranda.
Mohssen also argued that he should be held responsible for
less than the $1,185,583 loss amount because there were some
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“missing invoices”—again with no further specific information—
that would increase the cost of goods. Mohssen further contends
that he should only be responsible for the funds deposited in
the Wells Fargo account because he was not a signor on the M&T
account.1
In assessing a challenge to the district court’s
application of the Sentencing Guidelines, we review the district
court’s factual findings for clear error and its legal
conclusions de novo. United States v. Alvarado Perez, 609 F.3d
609, 612 (4th Cir. 2010). The amount of loss for sentencing
purposes “is the greater of actual loss or intended loss.” U.S.
Sentencing Guidelines Manual § 2B1.1(b)(1), cmt. n.3(A) (2013).
When calculating the loss attributable to a defendant, a
district court “need only make a reasonable estimate of the
loss, given the available information.” United States v.
Miller, 316 F.3d 495, 503 (4th Cir. 2003). Here, the cost of
goods and loss calculation methodologies were thoroughly
explained by FBI Forensic Accountant, and expert witness, David
1
Defendants also briefly alternatively argue that they
should only be held responsible for the amounts specified in the
counts in the superseding indictment (resulting in an offense
level of 7 for $772.04), or that they should split the amount
deposited in the Wells Fargo because they were each a signor,
instead of both being responsible for the full amount. For the
reasons stated below, the district court did not err in
determining the loss to be over $1,183,000 for each Defendant.
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Rutledge, and U.S. Department of Agriculture Special Agent
Stanley Wojtkonski. These witnesses adequately supported their
reasoning. Moreover, the Defendants did not point to specific
items that would have changed the cost of goods sold and
subsequently the total estimated loss related to the food stamp
fraud. We therefore conclude that the district court
appropriately determined that the estimated loss from the
Defendants’ scheme was over $1 million and did not clearly err
in determining the loss amount.
The court also did not err in rejecting Mohssen’s request
to split the loss between the Defendants. Members of a
conspiracy or scheme to defraud can be held responsible at
sentencing for the entire foreseeable loss caused by the
conspiracy or scheme. See United States v. Bolden, 325 F.3d
471, 498 (4th Cir. 2003) (“In calculating fraud loss, a
sentencing court must first apply the principles of relevant
conduct.”) (internal quotation marks omitted); United States v.
Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993) (“one participant
in a multi-participant . . . conspiracy may be held accountable,
for sentencing purposes, for a greater or lesser [amount] than
other coparticipants”). “[T]he fraud loss properly attributable
to a defendant[] must be determined on the basis of (1) the acts
and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by a defendant; and
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(2) in the case of a jointly undertaken criminal activity, all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.”
Bolden, 325 F.3d at 499; see USSG § 1B1.3(a)(1)(B).
There was testimony at trial by three witnesses that the
Defendants jointly operated Sam’s, thus the Defendants quite
clearly participated in “jointly undertaken criminal activity.”
The court did not clearly err in determining that the same loss
amount should apply to both Defendants.
Finally, Mohssen argues that the district court erred in
determining that he did not play a minor or minimal role in the
fraud. See USSG § 3B1.2. Mohssen contends that he was entitled
to the offense level reduction because he was not an owner or
supervisor of Sam’s, was not listed as an owner on the property
bill of sale, was not a signor on the M&T account, only received
a disbursement of $23,592.50 to his personal bank account, and
did not sign or submit the application to become a food stamp
retailer.
A district court’s determination regarding a defendant’s
role in the offense is reviewed for clear error. United
States v. Powell, 680 F.3d 350, 358-59 (4th Cir. 2012). To
establish eligibility for a reduced offense level under § 3B1.2,
“[t]he defendant bears the burden of proving, by a preponderance
of the evidence, that he is entitled to a mitigating role
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adjustment in sentencing.” Powell, 680 F.3d at 358-59 (internal
quotation marks omitted). The court examines “whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Akinkoye, 185 F.3d 192, 202 (4th
Cir. 1999) (internal quotation marks omitted).
Mohssen was certainly more than a minor or minimal
participant in the food stamp fraud scheme. His girlfriend and
other witnesses testified that Mohssen ran the store
approximately half of the time. Mohssen’s girlfriend also
testified that Mohssen told her that he and Abdulla were
co-owners of Sam’s. Further, although Mohssen attempts to
characterize his financial benefit from the scheme as minimal
because he only had approximately $23,000 disbursed to his
personal checking account, he used the Wells Fargo Sam’s account
as “his own personal piggybank” and withdrew funds regularly.
He also recruited at least one food stamp participant to sell
his benefits for cash. These are not circumstances signifying
decreased culpability. We therefore conclude that the district
court did not clearly err in determining that Mohssen was not
entitled to the role in the offense reduction.2
2 Defendants briefly argue that their 48-month sentences are
substantively unreasonable in consideration of 18 U.S.C.
§ 3553(a)(2) (2012) because there is no need for deterrence as
they are subject to deportation after they have served their
sentences. They also claim that their sentences are
(Continued)
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Accordingly, we affirm the judgments. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
substantively unreasonable, without any specific supporting
argument. As the Defendants’ sentences are within the properly
calculated Guidelines range and they have not rebutted the
presumption that their sentences are reasonable balanced against
the 18 U.S.C. § 3553(a) (2012) factors, we conclude the court
did not abuse its discretion in imposing the sentences. See
United States v. Louthian, 756 F.3d 295, 306 (4th Cir.)
(citation omitted) (“[A]ny sentence that is within or below a
properly calculated Guidelines range is presumptively
[substantively] reasonable. Such a presumption can only be
rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.”), cert.
denied, 135 S. Ct. 421 (2014).
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