United States v. Naser Abdo , 733 F.3d 562 ( 2013 )

Case: 12-50836 Document: 00512345596 Page: 1 Date Filed: 08/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2013
No. 12-50836 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NASER JASON JAMAL ABDO, also known as Naser Jason Abdo,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
Naser Jason Jamal Abdo was arrested by police before he could carry out
a plan to detonate a bomb and shoot service members stationed at Fort Hood,
Texas. He was convicted of one count of attempted use of a weapon of mass
destruction (Count 1), one count of attempted murder of officers or employees of
the United States (Count 2), and four counts of possession of a weapon in
furtherance of a federal crime of violence (Counts 3–6). He appeals his
conviction and sentence. We AFFIRM.
I.
On July 26, 2011, Greg Ebert, an employee in a gun store in Killeen,
Texas, notified police Sgt. Bradley and Lt. Boone about a suspicious customer
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who had come into the store. The customer, later identified as Abdo, purchased
six one-pound containers of different types of smokeless gunpowder despite an
apparent lack of knowledge about the substance, as well as three boxes of
shotgun shells and an extended magazine for a handgun. Abdo’s purchases were
suspicious because smokeless gunpowder, which is normally used to re-load
ammunition, is typically purchased in one to two pound quantities of the same
type along with other supplies, such as bullets or primers. Abdo purchased six
pounds of different types of powder and no bullets or primers. He paid cash, left
in a hurry, and did not take his change or receipt.
The day after Ebert’s tip, Sgt. Bradley learned that the same customer
from the gun store had also gone to an army/navy surplus store and asked for an
army combat uniform, a name patch bearing the name “Smith,” and patches of
the kind used at Fort Hood. Sgt. Bradley became concerned that the customer
may have been planning an attack on Fort Hood or on the city. Bradley had
previously served as an advisor to the National Police in Afghanistan and knew
that the gunpowder could be used to construct improvised explosive devices
(IEDs). He also had seen terrorists use bogus uniforms to infiltrate their
intended targets.
Upon learning that the customer had taken a cab to a hotel, Sgt. Bradley,
Lt. Boone, and an army investigator, all in plain clothes, went to the hotel along
with two uniformed police officers. As they were examining guest records,
Bradley and Boone saw a taxicab arrive and then saw Abdo approach the cab
wearing a large, overstuffed backpack. Abdo matched perfectly the description
of the customer from the gun store. Because the police knew Abdo had
purchased items associated with firearms and explosives, they believed he might
have had weapons or explosives in the backpack. Bradley had seen pipe bombs
and other portable IEDs concealed in backpacks while in Afghanistan.
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Lt. Boone drew his weapon and ordered Abdo to stop. Although Abdo
initially put his hands up, he began to lower them, and Sgt. Bradley believed
from Abdo’s look that he was considering whether to engage the police or
attempt to flee. Sgt. Bradley drew his own weapon and ordered Abdo not to
touch anything. Abdo was placed on the ground, separated from the backpack,
and placed in handcuffs by a uniformed officer. He was also placed inside an air
conditioned police car. A Tennessee identification card bearing the name Asher
Pluto was found in his pocket.
After being informed of his Miranda rights, Abdo admitted that he was an
AWOL soldier from Fort Campbell, Kentucky, and was planning to attack
soldiers at Fort Hood. Approximately fifteen minutes into the stop, police also
learned from dispatch that there were outstanding warrants for Abdo. Abdo was
then formally arrested and transported to the jail. Inside the backpack, police
found a Springfield Armory .40 caliber pistol, a magazine, two clocks, wiring,
batteries, and other materials that could be used in the construction of an
explosive device. They also found an article entitled “How to Build a Bomb in
the Kitchen of Your Mom.” A subsequent search of Abdo’s hotel room pursuant
to a warrant revealed multiple items that could be used to make an explosive
device, including the smokeless gunpowder and two pressure cookers, as well as
the United States Army uniform that Abdo had purchased.
II.
Abdo first contends that the district court erroneously denied his motion
to suppress the evidence found at the time of his arrest and statements that he
made to police. He contends that his detention at gunpoint and placement in a
police car in handcuffs was a full arrest, rather than an investigatory stop, that
was unsupported by probable cause and was thus unlawful.
“When the district court denies a motion to suppress, we review factual
findings for clear error and conclusions of law de novo.” United States v.
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Rodriguez, 702 F.3d 206, 208 (5th Cir. 2012) (internal quotation and citation
omitted). We view the evidence in the light most favorable to the prevailing
party, here the Government. Id.Police may detain a suspect and briefly investigate when they have
reasonable suspicion, based on specific and articulable facts and rational
inferences, that justifies the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 1880 (1968). This standard is less stringent than the probable cause
standard required for a full arrest. See United States v. Sanders, 994 F.2d 200,
203 (5th Cir. 1993). “Whether a detention is an arrest or merely a Terry-stop
depends on the ‘reasonableness’ of the intrusion under all the facts.” United
States v. Martinez, 808 F.2d 1050, 1053 (5th Cir. 1987). We conclude that, under
all the circumstances present in this case, the police had reasonable suspicion
to believe that Abdo was armed and dangerous and that the police effected a
lawful investigative detention.
Abdo contends that he was placed under arrest from the inception of the
stop because he was detained at gunpoint and placed handcuffed into a police
car. We have held, however, that “using some force on a suspect, pointing a
weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a
suspect—whether singly or in combination—do not automatically convert an
investigatory detention into an arrest requiring probable cause.” Sanders, 994
F.2d at 206. The police may take reasonable actions under the circumstances to
ensure their own safety, as well as the safety of the public, during an encounter
with a suspect. See Terry, 392 U.S. at 30, 88 S. Ct. at 1884 (holding that if police
have reasonable grounds to believe a suspect is “armed and dangerous,” they
may take “swift measures to discover the true facts and neutralize the threat of
harm”); see also United States v. Hensley, 469 U.S. 221, 235, 105 S. Ct. 675,
683–84 (1985) (holding that officers were “authorized to take such steps as were
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reasonably necessary to protect their personal safety and to maintain the status
quo during the course of the stop”).
The police here reasonably believed that Abdo was armed and dangerous.
They knew he had purchased multiple items related to firearms, as well as a
large amount of gunpowder in a manner that was inconsistent with its normal
use. They knew he had acted suspiciously in the gun store (e.g., he never
removed his sunglasses and made questionable comments to the store employee).
The police also knew Abdo had then purchased an army uniform and expressly
asked for the kind of patches used at Fort Hood, which suggested he lacked the
knowledge that a newly arriving soldier would have and thus did not belong. At
the time of the encounter, Abdo was carrying a large, overstuffed backpack on
a very hot day. Sergeant Bradley had experience with terrorists using similar
tactics of concealing explosives in backpacks and obtaining fake uniforms to
facilitate an attack. Under these circumstances, the police acted with reasonable
care in drawing their weapons and handcuffing Abdo. See United States v.
Campbell, 178 F.3d 345, 349 (5th Cir. 1999) (“When a suspect is considered
dangerous, requiring him to lie face down on the ground is the safest way for
police officers to approach him, handcuff him and finally determine whether he
carries any weapons.” (internal quotation marks and citation omitted)). Placing
Abdo inside the air conditioned police car rather than leaving him lying on the
ground did not significantly increase the intrusiveness of the stop and transform
the detention into an arrest. See, e.g., Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir.
2004) (holding that ordering suspect out of car at gunpoint, handcuffing him, and
placing him in police car did not elevate Terry stop to an arrest where police had
information suspect could be armed). Furthermore, the detention lasted only
about fifteen minutes before police learned that there were outstanding
warrants for Abdo. See Campbell, 178 F.3d at 350 (holding that detention of
suspect for 25 minutes was not unreasonable for an investigatory stop).
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We hold that under all the circumstances the stop was a proper
investigatory detention and was supported by reasonable suspicion. See Terry,
392 U.S. at 22, 88 S. Ct. at 1880–81 (holding that even a series of acts which
appear innocent if taken separately may, when taken together, warrant further
investigation). The district court did not err in denying the suppression motion.
III.
Abdo next challenges his convictions on Counts 3 and 5 of the superseding
indictment for possession of a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1). Count 3 of the indictment charged Abdo with
possession of a Springfield Armory .40 caliber pistol in furtherance of the crime
of attempted use of a weapon of mass destruction, while Count 5 charged him
with possession of the same firearm in furtherance of the crime of attempted
murder of officers or employees of the United States. Abdo argues that one of
these counts must be vacated because § 924(c)(1) does not permit multiple
convictions for a single use of a firearm based on multiple predicate offenses. He
contends that he was improperly convicted for two offenses based on “attempting
to use a single pistol on a single occasion.”1
Because Abdo did not raise this issue in the district court, our review is
limited to plain error. See Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct.
1423, 1429 (2009). Under plain error review, the appellant must show (1) an
error, (2) that is clear and obvious, and (3) that affected his substantial rights.
United States v. Zelaya-Rosales, 707 F.3d 542, 544 (5th Cir. 2013). If the
appellant makes this showing, this court will exercise its “discretion to correct
1
Contrary to Abdo’s argument, we note that Abdo was charged with possession of a
weapon in furtherance of a crime of violence, not use of the weapon during and in relation to
a crime of violence. See United States v. Cooper, 714 F.3d 873, 877 (5th Cir. 2013) (“18 U.S.C.
§ 924(c)(1)(A) proscribes two different types of conduct: the use or carrying of a firearm ‘during
and in relation to any crime of violence or drug trafficking crime’ and the possession of a
firearm ‘in furtherance of any such crime.’” (quoting § 924(c)(1)(A)).
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the error only if it seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” Id. at 544–45 (internal quotation and citation
omitted).
Abdo is correct that we have held that Ҥ 924(c)(1) does not unambiguously
authorize multiple convictions for a single use of a single firearm based on
multiple predicate offenses.” United States v. Phipps, 319 F.3d 177, 189 (5th Cir.
2003). In Phipps, the defendants had abducted a woman at gunpoint and then
immediately gave the gun to an accomplice before driving away with the woman
in her car. Id. at 180. We held that the defendants could not be convicted for
both using the firearm during and relation to carjacking and using the same
firearm during and in relation to the simultaneous offense of kidnaping where
the defendants used the gun for a dual criminal purpose and then immediately
discarded the weapon. Id. at 189; see also United States v. Walters, 351 F.3d
159, 173 (5th Cir. 2003) (holding that a single delivery of a single bomb did not
support two convictions under § 924(c)(1) for using a destructive device during
and in relation to two crimes of violence, one for assaulting a federal officer and
one for damaging a federal building where the bomb was opened).
We agree with the Government that Phipps does not control the case here
because Abdo was not convicted of possessing the firearm on a single occasion
in furtherance of simultaneous dual criminal purposes. Abdo admitted to police
that he intended to detonate a bomb at a restaurant and then shoot any
surviving soldiers. His possession of the firearm for the purpose of shooting the
soldiers was therefore in furtherance of the offense of attempted murder of
officers or employees of the United States, as charged in Count 5. But Abdo also
admitted to police that on the day of his arrest, when he was in possession of the
firearm in the backpack, he intended to conduct reconnaissance in advance of
carrying out the attack. The trial testimony further showed that Abdo also
possessed the backpack, in which he stored the firearm, on the day before his
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arrest when he purchased not only several component parts to be used in the
explosive device but also the army uniform that would allow him to blend in. As
the Government argued at trial, the jury could infer that Abdo possessed the
firearm for personal protection while he took steps toward the construction and
placement of a bomb. This was a separate and distinct possession of the firearm,
which furthered the distinct offense of attempted use of a weapon of mass
destruction, as charged in Count 3.
In Phipps, we noted that a defendant’s separate use or possession of
firearms in conjunction with distinct offenses might support multiple
convictions. See Phipps, 319 F.3d at 188–89 (“Had, for example, [the defendants]
kept the firearm and used it to restrain or intimidate [the victim] later, we might
have affirmed their multiple convictions. We also might have done so if
defendants had used, carried, or possessed multiple firearms when they took
[the victim’s] car and kidnaped her.”). In the instant case, the evidence at trial
allowed the inference that Abdo kept possession of the firearm for distinct
purposes and to further distinct offenses, namely to shoot his intended victims
and to provide protection for himself while he carried out his plans to detonate
a bomb. Because the evidence allowed for the inference of two different
possessions and purposes for the firearm, there is no clear or obvious error in
Abdo’s conviction for multiple offenses. Under plain error review, we therefore
reject Abdo’s argument.
IV.
Finally, Abdo argues that he was denied his right to present a defense
because the district court denied his request for funds for an expert witness. We
are unpersuaded. Abdo does not articulate in his brief the defense that he
wished his expert to present but rather cites to the transcript where his counsel
made a proffer to the district court. An appellant may not incorporate by
reference issues and arguments raised in the district court. United States v.
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Jackson, 549 F.3d 963, 972 n.6 (5th Cir. 2008). The issue is therefore waived.
See id.Moreover, even if the issue were not waived, it fails on the merits. We
note that the district court did not deny Abdo all access to expert assistance.
Rather, the court granted Abdo $3500 to consult with an expert, but it denied a
request for additional funds shortly before trial because the expert, who lived far
away, required an exceedingly high fee to appear to testify. In any event,
defense counsel’s proffer showed that Abdo wished to have the expert testify that
a bomb made with the materials found in Abdo’s backpack and hotel room would
not be capable of causing much damage. The evidence at trial showed, however,
that an explosive device could have been constructed from the materials.
Because Abdo was charged with an attempt offense, this was sufficient, and the
actual damage that could have been caused is irrelevant. See United States v.
Crow, 164 F.3d 229, 235 (5th Cir. 1999) (stating that “factual impossibility is not
a defense if the crime could have been committed had the attendant
circumstances been as the actor believed them to be” (internal quotation marks
and citation omitted)). The expert’s testimony therefore would not have
materially assisted the defense. See Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.
1993) (holding that an indigent defendant requesting non-psychiatric experts
must show “a reasonable probability that the requested experts would have been
of assistance to the defense and that denial of such expert assistance resulted in
a fundamentally unfair trial”). The denial of the additional funds did not result
in an unfair trial, and we perceive no error.
AFFIRMED.
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