United States v. Abdullah ( 2007 )

Certiorari dismissed, November 30, 2007
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4970
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MUTTAQIN F. ABDULLAH, a/k/a King, a/k/a
Clayton Montray Pinckney,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:05-cr-00014-MBS-AL)
Submitted: June 29, 2007 Decided: July 13, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
W. Michael Duncan, AUSTIN, LEWIS & ROGERS, P.A., Columbia, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, C. Todd Hagins, Robert F. Daley, Jr., Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mattaqin F. Abdullah appeals his conviction and life
sentence imposed for being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C.A. §§ 922(g)(1), 924(a)(2),
924(e)(1) (West 2000 & Supp. 2007). On appeal, Abdullah argues
that the district court erred in denying a motion for a mistrial
after a Government witness briefly testified to a subject
prohibited by an in limine ruling; erred in applying a first degree
murder cross reference at sentencing when the jury did not find
facts of murder; and erred in applying the first degree murder
cross reference and finding that the murder was premeditated.
Finding no error, we affirm.
On March 14, 2004, officers from the Sumter, South
Carolina, Sheriff’s Department responded to a report of shots fired
at the Lion’s Pit Nightclub. Abdullah was a bouncer employed by
the club that night to provide security during a concert. Abdullah
previously worked at the Lion’s Pit on several occasions.
Abdullah’s counsel filed a motion in limine, which was granted by
the court in part, to limit evidence regarding the shootings at
trial. The court ruled that the Government may discuss “the
pointing and presenting of a firearm” with regard to the charge,
but that “no testimony or other evidence regarding the alleged
murder or attempted murder on March 14, 2004, will be allowed.”
(J.A. 44-45).
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The club closed in the early morning hours of March 14,
2004. It was customary for patrons at the club to sit in their
vehicles in the parking lot waiting to leave. As they waited, they
discharged celebratory gunfire into the air. The shots were not
fired at the club. Abdullah testified that he had seen and heard
gun shots while the club closed on previous occasions when he
worked there.
The bouncers exited the club and stood by the doors so
that no one could re-enter. Abdullah became agitated with the
gunfire and said, “Man, they playing around, they are shooting in
the air. I’m going to shoot for real.” (J.A. 236). He also said,
“I’m not going to shoot in the air, I’m going to shoot at
somebody.” (J.A. 123). While the patrons were shooting in the
air, a bouncer went to his car to retrieve a handgun. Tommy Boyd
testified that Abdullah told the bouncer, “Give me the gun . . .
[j]ust give me the gun. . . . I know what to do.” (J.A. 121). The
bouncer gave Abdullah the firearm. As he did so, another bouncer,
Coral Scott, became involved in an altercation with a patron. No
firearms or weapons were involved. Thurston Lane, another bouncer,
got between Scott and the patron. Scott then heard gunfire, looked
book, and saw Abdullah firing the shots. Tommy Boyd and
Thurston Lane confirmed that they observed Abdullah fire into a
crowd of approximately forty to fifty people from twenty-five to
thirty feet away. Boyd testified that Abdullah did not begin
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shooting until approximately three to four minutes after the
patrons stopped shooting in the air. Abdullah fired approximately
eight or nine times to his left and right. One bullet hit David
Way on the back of the head and exited through his forehead. He
was pronounced dead at Toumey Hospital. Merrill McBride was also
injured by a bullet striking his left side.
Lane testified that, after the shooting, he observed
Abdullah return inside the club. Lane followed Abdullah and saw
him enter the restroom. Abdullah later rejoined the group of
bouncers who sat in front of the club waiting to be paid. Lane
informed officers arriving on the scene that Abdullah was the
shooter and directed them to the restroom Abdullah entered after
the shooting.
Officers recovered a Taurus .45 caliber semi-automatic
pistol from a hole in the restroom’s ceiling. The firearm was
loaded with six unfired Federal brand .45 caliber cartridges.
Abdullah was arrested based on witness statements. Abdullah was
searched and a .45 caliber Federal brand cartridge was found in his
jacket pocket. Abdullah’s fingerprint was found on the firearm’s
magazine. Both parties stipulated that David Way’s “entrance wound
was consistent with being caused by a large caliber bullet,
consistent with either a .45 caliber bullet, .40 caliber bullet, or
10 millimeter bullet.” In addition, both parties stipulated that
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Way died due to “massive cerebral brain damage and hemorrhaging due
to a gunshot wound to the back of the head.” (J.A. 592).
Despite the Government’s warning on the in limine issue,
witness Coral Scott testified on direct examination that after the
shootings he ran backwards to the club’s door “and that’s when
people came out screaming, ‘Somebody has been shot.’” (J.A. 176).
Abdullah’s counsel moved for a mistrial based on the witness’s
statement that someone had been shot. The Government argued that
the witness’s statement was that someone else said that someone had
been shot, but was not direct testimony that someone was shot by
Abdullah. Abdullah’s counsel declined a curative instruction,
because he thought it would draw more attention to the testimony,
and instead stated that a mistrial was the only remedy. The court
denied Abdullah’s motion for a mistrial.
Abdullah and his counsel had an ex parte discussion with
the court regarding whether Abdullah would testify. Counsel
advised Abdullah not to testify; however, Abdullah decided to
exercise his right. The court and counsel informed Abdullah that
his testimony would be in the narrative form, that he was also
bound by the court’s in limine ruling, and that if he opened the
door to the murder and injury, then the Government could pursue
testimony about it.
Abdullah testified that he was outside in the parking lot
when the club cleared out, but that he returned inside when he
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heard the patrons’ gunfire. He testified that he borrowed a jacket
from another bouncer, and he did not know that there was ammunition
in the jacket pocket. He testified that the crowd was very
emotional and stated that “their home boy had been shot and one of
the bouncers was accused of it in some way.” (J.A. 547).
Abdullah’s testimony was that following the commotion regarding
David Way’s murder, someone came up to him and told him to check
the bathroom because a toilet was broken. During cross-
examination, Abdullah again denied firing shots or handling the
firearm or ammunition.
Abdullah first argues that the district court erred in
denying a mistrial based on Scott’s testimony, because it was in
violation of the court’s ruling to exclude testimony about the
murder and injury and no remedy short of a mistrial would provide
him with a fair trial. He argues that he was compelled to testify
that he was innocent of the shooting by the court’s failure to
grant a mistrial. The Government maintains that the remark was
fleeting, Abdullah was not coerced into testifying, and no undue
prejudice resulted from the remark.
We review the denial of a motion for a mistrial for an
abuse of discretion. See United States v. Dorlouis, 107 F.3d 248,
257 (4th Cir. 1997). “In order for the trial court's ruling to
constitute such an abuse of discretion, the defendant must show
prejudice; no prejudice exists, however, if the jury could make
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individual guilt determinations by following the court's cautionary
instructions.” United States v. Dorsey, 45 F.3d 809, 817 (4th Cir.
1995) (internal citation omitted).
We conclude that the Government witness’s unexpected
statement that patrons at the club said someone had been shot did
not require a mistrial. The witness’s statement was brief and
isolated and was not purposely elicited by the Government.
Moreover, the district court would have given an immediate curative
instruction telling the jury to disregard the witness’s statement,
had Abdullah requested it. Abdullah chose for the court to refrain
from issuing a curative instruction. The jury is presumed to
follow curative instructions given by the court. Hinkle v. City of
Clarksburg, 81 F.3d 416, 427 (4th Cir. 1996). Had Abdullah agreed
to the remedy of a curative instruction, it would have been
presumed that the jury would have followed the instruction.
Scott’s reference to a person being shot was the only
reference to the murder and injury during the four day trial until
Abdullah testified. The Government presented fifteen witnesses.
This demonstrates that the remark was indeed fleeting and
incidental. See United States v. Vogt, 910 F.2d 1184, 1193 (4th
Cir. 1990) (finding lack of prejudice to warrant mistrial where
witness’s impermissible testimony “came up incidentally, neither
the witness nor the prosecution made any repeated reference to it,
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and the court carefully instructed as to [the testimony’s]
permissible use.”).
In addition, there was testimony from four eyewitnesses
who saw Abdullah possess the firearm. There was also testimony
that a bullet was found in Abdullah’s jacket pocket matching the
caliber and brand of bullets found in the firearm. Abdullah’s
fingerprints were also found on the firearm’s magazine. We
therefore conclude that Abdullah has not shown undue prejudice and
the jury could have found sufficient evidence of firearm possession
to convict Abdullah without relying on any inference from Scott’s
impermissible statement.
Next, Abdullah objects to the district court sentencing
him based on a cross reference to first degree murder. He argues
that sentencing on a murder cross reference violates his Sixth
Amendment rights, relying on Apprendi v. New Jersey, 530 U.S. 466(2000), Ring v. Arizona, 536 U.S. 584 (2002), and United States v.
Booker, 543 U.S. 220 (2005). In Booker, the Supreme Court held
that Blakely v. Washington, 542 U.S. 296 (2004), applies to the
federal Sentencing Guidelines and that the mandatory Guidelines
scheme, which provided for sentence enhancements based on facts
found by the court by a preponderance of the evidence, violated the
Sixth Amendment. See Booker, 543 U.S. at 226-27, 245. The Court
remedied the constitutional violation by severing and excising the
statutory provisions that mandate sentencing and appellate review
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under the Guidelines, thus making the Guidelines advisory. 543
U.S. at 245.
However, in imposing a sentence post-Booker, courts still
must calculate the applicable Guidelines range after making the
appropriate findings of fact and consider the range in conjunction
with other relevant factors under the Guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007). United States v. Moreland, 437
F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Here, the district court sentenced Abdullah post-Booker and
appropriately treated the Guidelines as advisory. The sentencing
court properly made factual findings concerning sentencing factors
by a preponderance of the evidence, including whether first degree
murder was related to the count of conviction. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). The court sentenced Abdullah after
considering and examining the Sentencing Guidelines and the
§ 3553(a) factors, as instructed by Booker. Therefore, there is no
Sixth Amendment error.
Finally, Abdullah argues that the evidence presented by
the Government was not sufficient to support a finding of murder in
the first degree by a preponderance of the evidence for sentencing
purposes. U.S. Sentencing Guidelines Manual § 2K2.1 (2003)
provides a cross-reference to the most analogous homicide guideline
to be applied if death resulted from the firearm offense and the
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cross reference would yield a higher offense level than the one
which would otherwise apply. See USSG § 2K2.1(c)(1)(B). This
court reviews a district court’s factual findings supporting the
applicability of the murder cross-reference for clear error.
United States v. Crump, 120 F.3d 462, 467-68 (4th Cir. 1997). If
the district court’s findings “may rationally be said to be
supported by a preponderance of the evidence, they may not be
disturbed on appeal.” Id. at 468. Abdullah maintains that the
shooting was random and not premeditated. Abdullah submits that he
should have been sentenced based only on second degree murder.
“Malice aforethought, as provided in 18 U.S.C.A.
§ 1111(a) (West Supp. 2007), is the distinguishing characteristic
which, when present, makes a homicide murder rather than
manslaughter.” United States v. Fleming, 739 F.2d 945, 947 (4th
Cir. 1984). To show that malice is present, the government is not
required “to show an intent to kill or injure.” United States v.
Williams, 342 F.3d 350, 356 (4th Cir. 2003) (citing Fleming, 739
F.2d at 947). Instead, “malice aforethought may be established by
evidence of conduct which is reckless and wanton and a gross
deviation from a reasonable standard of care, of such a nature that
a jury is warranted in inferring that defendant was aware of a
serious risk of death or serious bodily harm.” Id. (internal
quotation and citation omitted).
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The first degree murder cross reference applies in cases
of premeditated killing. USSG § 2A1.1, cmt. (n.1).
“‘Premeditation’ is a fully formed conscious purpose to kill that
may be formed in a moment and need only exist for such time as will
allow the accused to be conscious of the nature of the act he is
about to commit and the probable result of that act.” 40 Am. Jur.
2d Homicide § 44 (2007).
At sentencing, the Government stated that Abdullah
stipulated to malice aforethought. The district court determined
Abdullah acted with premeditation. The court cited Lane’s
statement that Abdullah said he was going to shoot for real and
Boyd’s testimony that Abdullah told him to give him the gun because
he knew what to do with it. We find that these facts demonstrate
that Abdullah consciously and maliciously fired into the crowd of
people and the first degree murder cross reference was appropriate.
We therefore affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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