United States v. Hassan , 280 F. App'x 271 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HATEM ABU HASSAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00007-H)
Argued: May 13, 2008 Decided: June 6, 2008
Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Henry F. FLOYD, United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-
Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. George E.
B. Holding, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hatem Abu Hassan appeals his convictions for trafficking in
goods bearing a counterfeit mark, and aiding and abetting the same,
18 U.S.C. §§ 2320(a) and 2. We affirm.
I
In the summer of 2004, the Wilson Police Department began to
investigate whether some of the convenience store owners in the
Wilson, North Carolina area were trafficking in stolen goods.
Hassan, who owned a convenience store in Wilson, was approached by
undercover officers on July 8, 2004 to see if he was interested in
purchasing purportedly stolen cigars. During his first meeting
with the undercover officers, Hassan purchased ten boxes of
Cigarillo cigars for $100. Later that day, the undercover officers
returned to Hassan’s convenience store and inquired whether he was
interested in purchasing purportedly stolen baby formula. Hassan
told the officers that he had a friend who would purchase all of
the baby formula that the undercover officers could provide.
Thereafter, on numerous occasions, Hassan purchased purportedly
stolen baby formula from the undercover officers. All of the
purportedly stolen goods sold to Hassan were contained in their
original factory packaging.
Sometime in July 2004, the undercover officers learned that
Hassan was selling pills bearing trademarks registered to the drug
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manufacturer Pfizer, Inc. The use of the Pfizer trademarks on the
pills made the pills appear to be genuine Viagra pills. During a
baby formula transaction on July 19, 2004, one of the undercover
officers, Detective Alfred Drayton, asked Hassan to give him a
Viagra pill. In response, Hassan retrieved a pill from his cash
register and gave it to Detective Drayton as a free sample, adding
that “it truly works.” (J.A. 102).
On September 23, 2004, while delivering 500 cases of baby
formula to Hassan, Detective Drayton asked Hassan to sell him some
Viagra pills. Detective Drayton told Hassan that he had $1,000 to
spend on Viagra pills, and Hassan sold Detective Drayton 200 pills
for $1,000. On four other occasions, between October 2004 and
January 2005, Detective Drayton purchased pills from Hassan. All
told, Detective Drayton purchased approximately 1200 pills from
Hassan.
At trial, a chemist testified that Viagra is a patented drug
made by Pfizer and that genuine Viagra requires a doctor’s
prescription before it can be dispensed. The chemist also
testified that the pills Hassan sold to Detective Drayton were not
genuine Viagra pills. According to the chemist, the color of the
pills sold by Hassan was slightly different from that of a genuine
Viagra pill. Moreover, although the pills sold by Hassan contained
the same active ingredient as a genuine Viagra pill and had similar
markings as those of a genuine Viagra pill, they also contained
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fillers not found in a genuine Viagra pill. The government also
introduced evidence showing that Hassan did not dispense the
counterfeit Viagra pills from a bottle typically used for genuine
Viagra pills. Rather, he typically retrieved the pills from an
Aleve bottle, a Tylenol box, or a ziplock bag.
Following his arrest in February 2005, Hassan’s vehicle was
searched. Nine counterfeit Viagra pills, similar to the ones sold
to Detective Drayton, were recovered during the search. In a
post-arrest statement, Hassan stated that he obtained the pills
from a friend in Rocky Mount, North Carolina.
On January 11, 2006, Hassan was charged by a federal grand
jury in the Eastern District of North Carolina with one count of
conspiracy to transport stolen property (baby formula) in
interstate commerce, 18 U.S.C. §§ 2314 and 371, five counts of
transporting stolen property (baby formula) in interstate commerce,
and aiding and abetting the same, id. §§ 2314 and 2, and five
counts of trafficking in goods bearing a counterfeit mark, and
aiding and abetting the same, id. §§ 2320(a) and 2. At trial, the
district court dismissed one of the § 2314 counts because the
government failed to meet the interstate commerce element. At the
conclusion of the trial, the jury convicted Hassan of the remaining
counts.
The district court sentenced Hassan to 37 months’
imprisonment, concurrent on each count. Hassan filed a timely
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notice of appeal. On appeal, he challenges the sufficiency of the
evidence to support his convictions on the § 2320(a) counts.
II
We review de novo the district courts decision to deny a
motion for judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure. United States v. Osborne, 514 F.3d
377, 385 (4th Cir. 2008). Where, as here, the motion was based on
a claim of insufficient evidence, “[t]he verdict of a jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); Osborne, 514 F.3d at 385.
Substantial evidence is 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.” United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). We consider
circumstantial and direct evidence and allow the government the
benefit of all reasonable inferences from the facts proven to those
sought to be established. Id. at 858.
In resolving issues of substantial evidence, we do not weigh
evidence or review witness credibility. United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989). Rather, it is the role of the
jury to judge the credibility of witnesses, resolve conflicts in
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testimony, and weigh the evidence. United States v. Manbeck, 744
F.2d 360, 392 (4th Cir. 1984).
Section 2320(a) prohibits “intentionally traffic[king] or
attempt[ing] to traffic in goods or services and knowingly us[ing]
a counterfeit mark on or in connection with such goods or
services.” In order to prove a violation of § 2320(a), the
government must prove, beyond a reasonable doubt, that the
defendant “(1) trafficked or attempted to traffic in goods or
services; (2) did so intentionally; (3) used a counterfeit mark on
or in connection with such goods and services; and (4) knew the
mark was counterfeit.” United States v. Habegger, 370 F.3d 441,
444 (4th Cir. 2004). “A defendant is guilty of aiding and abetting
if he has knowingly associated himself with and participated in the
criminal venture.” Burgos, 94 F.3d at 873 (citation and internal
quotation marks omitted).
Hassan contends that the record does not contain substantial
evidence demonstrating that he knew the pills he sold to Detective
Drayton were counterfeit Viagra pills. We disagree. Several
pieces of evidence, when viewed collectively, demonstrate that
Hassan knew the pills were counterfeit Viagra pills.
The first, and strongest, piece of evidence tending to show
that Hassan knew the pills he sold to Detective Drayton were
counterfeit Viagra pills is Hassan’s assurance to Detective Drayton
on July 19, 2004 that the pill he was providing was effective. If
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Hassan knew the pill he was giving to Detective Drayton was a
genuine Viagra pill, there would be no need for him to vouch for
the pill’s effectiveness. However, because the pills were
counterfeit, Hassan needed to convince Detective Drayton that the
unauthentic pill would work as effectively as a genuine Viagra
pill.
The next piece of evidence tending to prove Hassan’s knowledge
is Hassan’s provision of a free sample to Detective Drayton. If
Hassan was dispensing a genuine Viagra pill, there would be no need
to provide a sample, as Hassan could depend on the medical evidence
available touting a genuine Viagra pill’s effectiveness. Moreover,
by providing a free sample, Hassan was encouraging Detective
Drayton to confirm that the counterfeit Viagra pill was as
effective as a genuine Viagra pill.
The context of the transactions between Hassan and Detective
Drayton also supports the conclusion that Hassan knew the pills he
was selling were not genuine Viagra pills. First, in his post-
arrest statement, Hassan stated that he was getting the pills from
his friend in Rocky Mount, North Carolina. Because Hassan did not
get the pills from a legitimate prescription source, the jury was
at liberty to conclude that it was more likely that the pills were
not manufactured by Pfizer. Second, when Hassan sought to purchase
purportedly stolen goods from the undercover officers, he saw no
need to confirm the authenticity of the goods the undercover
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officers were trying to sell. However, when Hassan filled the role
of seller, he was acutely aware of the need to convince Detective
Drayton that the pill he was providing was as effective as a
genuine Viagra pill. To that end, Hassan provided Detective
Drayton a free sample, in hopes that Detective Drayton would seek
to buy large quantities of the pills he had to sell.
The packaging of the pills Hassan was selling and their
abundant supply also suggest that Hassan knew the pills he was
selling to Detective Drayton were not being manufactured by Pfizer.
If the pills Hassan was selling were manufactured by Pfizer, one
would expect that the pills would be stored in some type of
packaging indicative of their genuine source. They were not.
Moreover, if the pills Hassan was selling were manufactured by
Pfizer, but obtained illegally, one would expect shortages or
delays, as the supply would depend on the pills being stolen from
either Pfizer or a legitimate distributer of prescription
medications. No such shortages or delays were present.
In sum, it was for the jury, not this court, to decide which
version of the events--the government’s or Hassan’s--was more
credible. United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). Here, based on the evidence summarized above, the jury was
entitled to conclude that Hassan knew the pills he sold to
Detective Drayton were counterfeit Viagra pills.
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III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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