United States v. Hammoud , 193 F. App'x 253 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4806
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AHMAD H. HAMMOUD, a/k/a Sammy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-04-474)
Submitted: July 31, 2006 Decided: August 8, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Michael S.
Nachmanoff, Assistant Federal Public Defender, Sapna Mirchandani,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Nicola J. Mrazek, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a bench trial, Ahmad Hussam Hammoud was
convicted for conspiring to distribute 500 or more grams of a
mixture containing cocaine. He was sentenced to 78 months’
imprisonment. Hammoud appeals both his conviction and sentence,
contending that the evidence was insufficient to sustain a guilty
verdict and that a two-level sentencing enhancement for obstruction
of justice, see U.S.S.G. § 3C1.1, was unwarranted. For the
following reasons, we affirm.
I.
Hammoud owned a gift shop in Ft. Lauderdale, Florida,
where he sold incense, lighters, knives, tasers, “all item[s]
related to pipes,” plastic bags, various types of cutting agent,
scales, and other drug paraphernalia. J.A. 146. Hammoud first met
Anthony Stroy in or about October 2003, when Stroy entered
Hammoud’s shop seeking “paraphernalia to help [him] distribute
[his] cocaine.” J.A. 36. Hammoud sold Stroy a $400 cocaine press
and approximately $1400 in other goods, including electronic
scales, roughly eight ounces of cutting agent, and roughly one
thousand plastic baggies. (Cutting agent is used “to stretch
cocaine” and increase the seller’s profit, while a press, also
called a compressor, is used to recompress cocaine once it is mixed
with a cutting agent. J.A. 39.) Hammoud admits that he knew Stroy
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was a drug dealer when he made these sales. Hammoud packaged and
shipped the items to Stroy’s address in Washington, D.C., in a box
labeled “incense.” J.A. 57. He instructed Stroy to identify the
contents as “a dietary supplement” should the police question him
about the shipment. Id. While Stroy was at Hammoud’s shop,
Hammoud advised Stroy on what types of cutting agent and what
ratios of cutting agent-to-cocaine to use to augment profits
without customers detecting any difference in drug quality. He
offered to help Stroy mix and recompress any cocaine that Stroy
had, but Stroy had none with him. While driving Stroy to the
airport that same day or the next, Hammoud loaned Stroy a canning
machine, a device that conceals drugs and masks their odor. He
also offered to introduce Stroy to some local drug dealers he
“dealt with [and] trusted” who could sell Stroy cocaine, though no
introductions were ever made. J.A. 42.
Over the next several months, Hammoud mailed to Stroy six
or seven more packages of cutting agent, each containing between
eight and ten ounces. Hammoud did not insist on immediate payment
from Stroy. He told Stroy to “just Western Union the money” when
Stroy had it; Stroy ultimately ran up a bill of roughly $2700.
J.A. 48. In late 2003 or early 2004 Stroy unwittingly sold cocaine
to an undercover Drug Enforcement Agency (DEA) agent, Special Agent
Robert Valentine. Stroy, who intended to “go into business” with
Valentine, suggested that he and Valentine, with Hammoud’s help,
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“stretch the bricks [of cocaine] out and maybe make an extra
$20,000 or so.” J.A. 51. After Valentine expressed an interest in
acquiring a press and cutting agent, Stroy called Hammoud to ask
“if it would be okay if my friend [Valentine] gave him a call.”
J.A. 52. Hammoud agreed, and he and Valentine subsequently spoke
by phone.
Hammoud never met with Valentine, however. He met
instead with Valentine’s associate, a government informant named
Michael Papanicolas, in July 2004. Hammoud supplied Papanicolas
with free samples of cutting agent, including one labeled “Greasy
Snort” and another labeled “DW” for “Diamond White,” and offered to
take Papanicolas to his house to demonstrate how to mix and
compress cocaine with the cutting agent. J.A. 70-71, 173-75.
Hammoud further said that he knew drug dealers in the area.
Hammoud used code words during this conversation: “incense” for
cutting agent and “18-year-old girls” and “20-year-old girls”
(meaning $18,000 and $20,000, respectively) to quote prices for
kilograms of cocaine. J.A. 72-73. A week or two later, in August
2004, Papanicolas called Hammoud to order more cutting agent and a
compressor. Papanicolas indicated that he was “trying to turn
other drug dealers on to the mixture” and that he wanted to be able
to “mix it” himself. J.A. 81. Hammoud advised Papanicolas to “put
my incense with your incense” (mix the cutting agent with the
cocaine, in other words); Hammoud also said that Valentine “could
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show [Papaniocolas] how to do it,” if need be. J.A. 81-82.
Papanicolas then sent Hammoud a money order, and Hammoud shipped
the compressor and cutting agent to a post office box in Virginia.
Hammoud and Papanicolas spoke by phone again in September 2004 to
plan a trip to Florida for Papanicolas, during which Hammoud would
sell him a canner and more cutting agent and introduce him to
cocaine suppliers.
In December 2004 a grand jury in the Eastern District of
Virginia returned a one-count indictment against Hammoud for
conspiring to distribute 500 grams or more of a mixture containing
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Law
enforcement officers arrested Hammoud in January 2005 and
thereafter searched his shop, where they found “various cutting
agents, baggies used to sell street-level narcotics, electronic
scales, [and] various items . . . used to conceal drugs for
street-level narcotics dealers.” J.A. 133 (punctuation omitted).
At the one-day bench trial in May 2005, the government presented
testimony from four witnesses: two DEA agents, Papanicolas, and
Stroy, Hammoud’s alleged co-conspirator turned government
cooperator. The government also introduced recordings of
conversations between Hammoud and government agents (Stroy and
Papanicolas) and physical evidence seized from Hammoud’s shop.
After the government rested, Hammoud filed a Rule 29 motion for
judgment of acquittal, which the district court denied. See Fed.
5
R. Crim. P. 29. Hammoud then testified as the only defense
witness. The district court returned a guilty verdict, imposed a
two-level sentencing enhancement for obstruction of justice, see
U.S.S.G. § 3C1.1, and sentenced Hammoud to 78 months’ imprisonment.
Hammoud appeals.
II.
Hammoud challenges the sufficiency of the evidence
supporting his conspiracy conviction. In evaluating a sufficiency
challenge, we are obliged to sustain a guilty verdict “‘if there is
substantial evidence, taking the view most favorable to the
Government, to support it.’” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc) (quoting Glasser v. United States,
315 U.S. 60, 80 (1942)). We have defined “substantial evidence” as
“evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” Id. In conducting our review, we
examine the cumulative weight of the evidence and leave undisturbed
the factfinder’s credibility determinations. See id. at 862-63.
The essential elements of the charged conspiracy are
that: (1) an agreement to distribute cocaine existed between two
or more persons; (2) the defendant knew of the conspiracy; and (3)
the defendant knowingly and voluntarily joined the conspiracy. See
id. at 857. Because the gravamen of a conspiracy charge is the
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agreement to violate the law, “not whether the conspirators have
worked out the details of their confederated criminal
undertakings,” the government need not prove that a defendant knew
all the details of the conspiracy. United States v. Mills, 995
F.2d 480, 484 (4th Cir. 1993); see also Burgos, 94 F.3d at 858.
Moreover, knowledge and participation in the conspiracy may be
proved by circumstantial evidence. United States v. Meredith, 824
F.2d 1418, 1428 (4th Cir. 1987).
The evidence shows an agreement between Hammoud and Stroy
to distribute cocaine. (Because Papanicolas participated in the
drug ring only after becoming a government agent, Hammoud cannot be
convicted for conspiring with him. See United States v. Lewis, 53
F.3d 29, 33 (4th Cir. 1995).) Hammoud repeatedly sold Stroy
materials used in cutting, weighing, preparing, and bagging cocaine
-- overt acts that he committed knowingly and willingly. See
Mills, 995 F.2d at 485 n.1 (“[E]vidence of a buy-sell transaction
is at least relevant (i.e. probative) on the issue of whether a
conspiratorial relationship exists.”). Hammoud admits knowing that
Stroy was a drug dealer when he sold Stroy the drug paraphernalia,
and Hammoud’s use of code words (for example, “incense” and “18-
year-old girls”) confirms this knowledge. Additionally, Hammoud
instructed Stroy how to mix the cutting agent with the cocaine to
increase profitability, directed Stroy to deceive the police about
the cutting agent’s composition and use, loaned Stroy a device to
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transport and conceal drugs and cutting agent, extended him a line
of credit, and offered to introduce him to local drug dealers. All
of these actions advanced, or at least were intended to advance,
the conspiracy’s goal of distributing cocaine. See, e.g., United
States v. Askew, 403 F.3d 496, 502 (7th Cir, 2005) (observing that
sales on credit among alleged co-conspirators is common
circumstantial evidence of a narcotics conspiracy). That Hammoud’s
sales of paraphernalia to Stroy increased as Stroy’s drug sales
increased is further evidence that Hammoud knowingly and willingly
participated in the conspiracy. See Meredith, 824 F.2d at 1428(holding that defendant’s sales of cutting agent and glassine bags
to co-defendants furthered the heroin conspiracy by increasing “the
ring’s narcotics sales,” and finding that such evidence was
sufficient to sustain the conspiracy conviction). Given Hammoud’s
obvious connection to the conspiracy, it is immaterial that he
never sold cocaine himself, for he otherwise facilitated its sale.
See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993) (“It
is of course elementary that one may be a member of a conspiracy
. . . without taking part in the full range of its activities.”).
For these reasons, we conclude that Hammoud’s conspiracy
conviction was supported by substantial evidence and therefore must
stand.
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III.
Hammoud also challenges his two-level sentence
enhancement for obstruction of justice based on perjury, U.S.S.G.
§ 3C1.1. This enhancement applies if the sentencing court finds by
a preponderance of the evidence that the defendant (1) gave false
testimony (2) concerning a material matter (3) with the willful
intent to deceive rather than as a result of confusion, mistake, or
faulty memory. United States v. Sun, 278 F.3d 302, 314 (4th Cir.
2002). We have cautioned that such an enhancement “does not
automatically apply every time a defendant who testifies at trial
is convicted,” because a defendant’s specific statements on the
stand may have been true, not intentionally false, or immaterial.
Id. (internal quotation marks and citation omitted). In evaluating
an application of the guidelines, we review the district court’s
factual findings for clear error and its legal determinations de
novo. Id. at 313.
Although Hammoud admitted knowing that Stroy was a drug
dealer, he consistently denied all involvement in the drug
distribution ring despite ample evidence that he knowingly
attempted to increase the drug ring’s profitability and facilitate
the purchase, transport, and concealment of drugs. In particular,
Hammoud testified that his cutting agent was worthless, merely
carpet cleaner or “kitchen incense” that could not effectively be
mixed with drugs. J.A. 172, 178. Stroy’s and Papanicolas’s
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testimony directly contradicted this contention, as did Hammoud’s
own words recorded during his telephone conversations with both
men. Hammoud further testified, contrary to Papanicolas’s
testimony and the telephone recordings, that the press could never
be used for cocaine. Based on these denials, the district court
determined that Hammoud gave false testimony that concerned
material matters. Having further determined that Hammoud gave such
testimony with “the intent to mislead,” the district court imposed
a two-level enhancement for obstruction of justice. J.A. 244; see
U.S.S.G. § 3C1.1.
Hammoud’s challenge to this enhancement is without merit.
The district court did not err in finding that Hammoud committed
perjury at trial. The materiality of Hammoud’s testimony is,
moreover, plain, as it concerned the heart of the case -- whether
Hammoud was a knowing and willing participant in the conspiracy.
We further leave undisturbed the court’s finding of a willful
intent to deceive because the district court was in the best
position to judge Hammoud’s credibility. See United States v.
Jones, 356 F.3d 529, 537 (4th Cir. 2004); Sun, 278 F.3d at 314.
Accordingly, we reject Hammoud’s challenge to the sentence
enhancement for obstruction of justice.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court, and
argument would not aid the decisional process.
AFFIRMED
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