United States v. Afridi , 241 F. App'x 81 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4225
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MUZAFFAR KHAN AFRIDI, a/k/a Muzaffar Khan
Muhammad Ali, a/k/a Momin Khan, a/k/a Hadji
Sahib,
Defendant - Appellant.
No. 06-4236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALAMDAR KHAN AFRIDI, a/k/a Alamdar Muzaffar
Khan,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:03-cr-00211-AW)
Submitted: June 25, 2007 Decided: July 20, 2007
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc G. Hall, Rockville, Maryland, for Appellant Alamdar Afridi;
James Wyda, Federal Public Defender, John Chamble, Assistant
Federal Public Defender, Paresh S. Patel, Staff Attorney, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant
Muzaffar Afridi. Rod J. Rosenstein, United States Attorney, Stuart
A. Berman, Barbara S. Skalla, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury in the United States District Court for the District of
Maryland found Muzaffar Khan Afridi (“M. Afridi”) and Alamdar Khan
Afridi (“A. Afridi”) guilty of conspiracy to distribute and to
possess with intent to distribute more than one kilogram of heroin
in violation of 21 U.S.C. § 846, conspiracy to import more than one
kilogram of heroin in violation of 21 U.S.C. § 963, three counts of
distribution of and possession with intent to distribute heroin in
violation of 21 U.S.C. § 841(a)(1), and eight counts of unlawful
use of a communication facility to commit a narcotics offense in
violation of 21 U.S.C. § 843(b). The district court sentenced M.
Afridi to life imprisonment for the conspiracy and distribution
counts and a concurrent sentence of forty-eight months for the
communication facility counts. The court sentenced A. Afridi to
360 months for the conspiracy and distribution counts and a
concurrent sentence of forty-eight months for the communication
facility counts.
Claiming that the district court improperly admitted hearsay
statements, both Afridis appeal their convictions. They also
appeal the reasonableness of their sentences under United States v.
Green, 436 F.3d 449 (4th Cir. 2006). Finding no error in the
convictions and sentences, we affirm.
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I.
In 2001, Mehrdad Ghaderi, working as an informant for the FBI
and DEA, agreed with his neighbor Zalmai Ibrahimi to purchase two
kilograms of heroin from a dealer supplied by an unknown source in
Pakistan. The man who arranged this deal, Waiz Ul-Din Wardak, is
Ibrahimi’s nephew, who lived in Pakistan at the time. After two
such deals at a McDonald’s in Beltsville, Maryland, and several
telephone calls to the suppliers of the heroin, Ghaderi, and
federal agents discovered that the kingpin of this heroin
organization was Muzaffar Afridi, who was assisted by his son
Alamdar.
In fall 2002, Ghaderi arranged to meet the Afridis in Dubai,
United Arab Emirates, to plan for larger heroin purchases. Ghaderi
met the Afridis twice in Dubai and agreed to purchase large
quantities of heroin that the Afridis planned to send through
London. Federal agents observed these meetings and took
photographs of the Afridis. On January 17, 2003, British customs
agents at Heathrow International Airport intercepted a large wooden
crate filled with sporting equipment. The crate had been shipped
from Malik International in Pakistan to the man whom Ghaderi used
as a receiver in London. Within the wooden struts of the crate
were hidden bags totaling twenty kilograms of high-quality heroin.
A. Afridi had sent Ghaderi a facsimile message on December 11,
2002, that described the heroin shipment; he sent a second fax on
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January 14, 2003, to confirm the shipment; and he sent a third fax
on January 18, 2003, that described how he had hidden the heroin in
the crate. On March 21, 2003, airport officials in London
intercepted an identical crate containing nearly eighteen kilograms
of heroin. Although this crate was initially destined for
Cameroon, the Afridis asked Ghaderi if he would like to purchase
it.
Federal agents arrested the Afridis in Bangkok, Thailand, on
August 29, 2003. On the basis of surveillance of the heroin deals
made with Ghaderi, transcripts of thousands of telephone calls, and
physical evidence agents had intercepted, a grand jury indicted the
Afridis with conspiracy to distribute and import heroin, use of a
communication facility in furtherance of that conspiracy, and
distribution and possession of heroin. After a lengthy trial, a
jury convicted the Afridis of these charges on December 5, 2005.
On February 15, 2006, the court sentenced M. Afridi to life
imprisonment, with a concurrent sentence of four years, and A.
Afridi to three hundred and sixty months, with a concurrent
sentence of four years.
II.
The Afridis claim they were wrongfully convicted on the basis
of hearsay statements the court allowed into evidence. They argue
that the court should not have allowed testimony concerning the
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out-of-court statements of Mia Afridi, an alleged co-conspirator.
We review the trial court’s admission of evidence for abuse of
discretion. United States v. Blevins, 960 F.2d 1252, 1255 (4th
Cir. 1992).
The trial court did not abuse its discretion in admitting the
out-of-court statements of co-conspirator Mia Afridi over the
objection of defense counsel. Federal Rule of Evidence
801(d)(2)(E) excludes from the definition of hearsay out-of-court
statements made by co-conspirators “during the course and in
furtherance of the conspiracy.” A court may admit evidence under
this rule if it concludes, by a preponderance of the evidence, “(1)
that there was a conspiracy involving the declarant and the party
against whom admission of the evidence is sought and (2) that the
statements at issue were made during the course of and in
furtherance of that conspiracy.” United States v. Neal, 78 F.3d
901, 905 (4th Cir. 1996). The proponent of the statements must
show the existence of the conspiracy and the declarant’s role in
the conspiracy through independent evidence but may supplement that
evidence with the statements of the declarant. Fed. R. Evid.
801(d)(2)(E) (as amended in response to Bourjaily v. United States,
483 U.S. 171, 181 (1987)).
In this case, the government presented sufficient independent
evidence at trial for the district court to conclude within its
discretion that Mia Afridi was a member of the conspiracy and that
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his statements were made during the course of and in furtherance of
the conspiracy. Waiz Wardak, another co-conspirator, testified to
his personal knowledge of Mia Afridi’s actions and Wardak’s
interactions with Mia Afridi. Wardak testified that Mia Afridi put
Wardak in contact with the heroin organization run by the Afridis
and that Mia Afridi served as a mediator between Ghaderi and the
conspirators. This independent evidence was sufficient to prove by
a preponderance of the evidence that Mia Afridi was a co-
conspirator. The district court thus properly concluded that his
statements were not hearsay and properly admitted them.
Even if the trial court had erred by admitting Mia Afridi’s
statements, the error would have been harmless. Considerable
evidence, independent of Mia Afridi’s out-of-court statements,
links both Afridis to the conspiracy. The testimony of Ghaderi
concerning his personal, telephone, and facsimile interactions with
both Afridis; Wardak’s and Ibrahimi’s testimony; thousands of
intercepted telephone calls; and the government surveillance of the
heroin deals constitute evidence sufficient to support the
conspiracy convictions of both Afridis.
III.
The Afridis also argue that the court imposed unreasonable
sentences. We review sentences imposed under the advisory
sentencing guidelines for reasonableness. United States v. Hughes,
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401 F.3d 540, 546-47 (4th Cir. 2005). Sentences must be both
procedurally and substantively reasonable. United States v.
Moreland, 437 F.3d 424, 434 (4th Cir. 2006). A sentence is
procedurally reasonable if the court has applied the appropriate
guidelines range and has given an adequate statement of reasons why
the sentence satisfies the requirements of 18 U.S.C. § 3553(a).
Id. at 434. “A sentence may be substantively unreasonable if the
court relies on an improper factor or rejects policies articulated
by Congress or the Sentencing Commission.” Id. We accord a
sentence imposed within the guidelines range a presumption of
reasonableness. United States v. Green, 436 F.3d 449, 457 (4th
Cir. 2006); see Rita v. United States, __ S. Ct. __, No. 06-5754,
2007 WL 1772146 at *6 (June 21, 2007) (holding that “a court of
appeals may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the Sentencing
Guidelines”).
The Afridis claim that the district court did not address the
concerns they raised and did not adequately refer to the § 3553(a)
factors while sentencing them. It is clear from the record that
the district court made proper findings of fact and properly
calculated the guidelines range for both Afridis. It is also clear
that the court considered defense arguments concerning M. Afridi’s
age and both Afridis’ potential cultural isolation and weighed them
against the significance of the crimes of which the Afridis were
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convicted. The court evaluated the arguments in the light of the
sentencing principles set forth in § 3553(a). Because of the
court’s deliberateness in sentencing, we cannot conclude that the
Afridis’ sentences are unreasonable.
IV.
We find no error in the district court’s admission of the out-
of-court statements made by co-conspirator Mia Afridi.
Additionally, we find that the sentences of both M. Afridi and A.
Afridi are procedurally and substantively reasonable. We therefore
affirm their convictions and sentences.
AFFIRMED
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