United States v. Farid Mohammed ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1039n.06
No. 10-4145 FILED
Sep 28, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
FARID MOHAMMED, )
)
Defendant-Appellant. )
Before: KEITH, BOGGS, and MOORE, Circuit Judges.
PER CURIAM. Defendant-Appellant Farid Mohammed appeals his jury conviction and
sentence for possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). Mohammed argues that: (1) the search of his apartment was unconstitutional; (2)
the district court abused its discretion in denying his request to file a second motion to suppress
challenging probable cause for his arrest; (3) there was insufficient evidence to support his firearm
conviction; (4) hearsay testimony at trial violated his Sixth Amendment right to confrontation; (5)
photographs were improperly admitted into evidence; (6) his statement to the police denying that he
had drugs on his person violated his Fifth Amendment right to an attorney; (7) he was entitled to a
reliability hearing to test the veracity of a jailhouse informant; (8) the Government violated his Sixth
Amendment right to counsel by using a jailhouse informant to elicit incriminating statements; and
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(9) his sentence was both procedurally and substantively unreasonable. For the following reasons,
we AFFIRM.
I.
A.
On July 21, 2009, the Central Vice Control Section of the Cincinnati Police Department
conducted a “buy-bust operation,” intending to arrest Defendant-Appellant Farid Mohammed after
police surveillance revealed a drug transaction between Mohammed and a confidential informant.
The informant told Cincinnati police officers that Mohammed, operating under the alias “Quan,” had
heroin available for purchase. The informant revealed to police officers that: (1) Mohammed lived
in an apartment on 2704 Eden Avenue; (2) Mohammed drove a silver Mercedes Benz and a blue
Lexus; (3) the informant arranged for Mohammed to deliver heroin to a lot behind a Shell gas station
on Ohio Avenue; and (4) Mohammed would arrive at the Shell gas station in his silver Mercedes
Benz. One of several recorded phone conversations captured the informant asking Mohammed
whether he was “ready to do the car th[i]ng.” Mohammed responded by asking, “You got it?” The
informant then told Mohammed, “I got the car. We gotta probably go get the title . . . .” The
informant then inquired if he and Mohammed were “still gonna do the same thing we talked about.”
Mohammed replied, “Yeah, yeah, same thing.” Another recorded conversation captured similarly
coded dialogue expressing an intention to “do the car th[i]ng,” although none of the recorded
conversations captured any express mention of drugs.
Around 6:25 p.m. on the evening of July 21, 2009, Mohammed drove to the Shell station
parking lot in a silver Mercedes Benz with a passenger. After Mohammed arrived, Officer Howard
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Fox drove the informant to the parking lot in a blue Cadillac. Upon noticing the Cadillac,
Mohammed waved his hands and began walking towards the Cadillac. As Mohammed reached his
hand out to open the Cadillac door, Officer Fox drove away and the other officers moved in to arrest
Mohammed. The arresting officers first asked whether Mohammed had any drugs or weapons on
his person. Mohammed denied having drugs or weapons. The officers read Mohammed the
Miranda warnings and questioned him about his car. Mohammed indicated to the officers that he
had a gun in his car. After conducting a search of Mohammed and his car, the officers recovered a
set of keys from Mohammed’s person and a loaded .45-caliber handgun from the center console of
the backseat of Mohammed’s car. Officers then asked Mohammed where he resided. Mohammed,
not mentioning his Eden Avenue apartment, claimed to reside in New Jersey while sometimes
staying in West Chester, Ohio. The officers conducted a K9 sniff of the Mercedes Benz. When
Officer Brian Trotta directed the drug K9 around the vehicle, the drug K9 gave a clear and aggressive
indication on the driver and passenger side doors; however, no drugs were found during the search
of the Mercedes Benz.
The officers went to 2704 Eden Avenue and located Mohammed’s blue Lexus parked at the
intersection of Charlton Avenue and Eden Avenue. The officers conducted a K9 sniff of the Lexus
and the same drug K9 gave a clear and aggressive indication on the driver-side and passenger-side
doors. The officers used the keys they had seized from Mohammed to enter the common entry door
of the apartment building at 2704 Eden Avenue. Once inside the common area of the apartment
building, the officers again conducted a drug K9 sniff of the door of Apartment 2, where Mohammed
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resided. The same drug K9 that conducted the other two drug sniffs again gave a clear and
aggressive indication on the apartment door.
Based on the foregoing information, the officers obtained a search warrant to search
Mohammed’s apartment. During the search, the officers recovered a total of 883.61 grams of heroin.
The officers found heroin pellets in the bedroom vent, the bedroom closet, and a shoebox in the
family room. Officers also recovered a digital scale, a kilo wrapper, and ammunition of the same
make and model that was in the firearm recovered from the Mercedes Benz.
B.
On August 5, 2009, Mohammed was indicted on one count of possession with intent to
distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
On October 19, 2009, Mohammed filed a motion to suppress all evidence obtained at his
apartment, claiming that the officers’ warrantless entry into the common area of his apartment
building violated the Fourth Amendment. The district court denied the motion on November 25,
2009, finding that although the officers’ entry into the common area violated the Fourth
Amendment—based on our ruling in United States v. Carriger, 541 F.2d 545 (6th Cir. 1976)—there
was sufficient probable cause to support the search warrant when the tainted portions of the search
warrant were excised.
On January 27, 2010, after the official drug weight revealed that the total amount of heroin
was less than one kilogram, a federal grand jury returned a superseding indictment that charged
Mohammed with possession with intent to distribute one hundred grams or more of heroin in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The superseding indictment also added a new
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charge of possessing a firearm in furtherance of a drug-trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A)(i).
On March 1, 2010, Mohammed filed his second motion to suppress, challenging his arrest,
the subsequent search of his car, and his statements claiming ownership of the gun. The district
court denied the motion based on Mohammed’s failure to raise such issues in his first motion to
suppress.
After a jury convicted Mohammed on both counts, he filed a motion for judgment of
acquittal, claiming that there was insufficient evidence for the jury to find him guilty of possessing
a firearm in furtherance of a drug-trafficking crime. The court denied the motion and sentenced
Mohammed to a total of 157 months in prison. This appeal followed.
II.
Mohammed raises numerous issues on appeal. We address each one in turn.
Search of Mohammed’s Apartment
Mohammed argues that the district court erred in failing to suppress all evidence obtained
during the search of his apartment. The district court found that the officers’ entry into the locked
common area of Mohammed’s apartment building prior to obtaining a search warrant was
unconstitutional. The court concluded, however, that when all the evidence obtained from the
unconstitutional entry was excised from the search warrant—namely the testing of the lock on the
apartment door and the K9 sniff at Mohammed’s door—the warrant was still supported by probable
cause. At oral argument, Mohammed asserted for the first time that the district court erred in
concluding that untainted portions of the search warrant supported a finding of probable cause
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because the untainted portions of the search warrant did not indicate Apartment 2 as the subject
apartment to be searched. The Government contends that Mohammed lacks standing to challenge
the search of the apartment after purportedly disclaiming knowledge of the building.
We review a district court’s denial of a motion to suppress for clear error as to factual
findings and de novo as to conclusions of law. United States v. Howard, 621 F.3d 433, 450 (6th Cir.
2010).
As an initial matter, we find that the district court correctly applied our holding in Carriger
to conclude that the police officers unconstitutionally entered the locked common area of
Mohammed’s apartment building without a warrant. In Carriger, we held that a tenant in an
apartment building has a reasonable expectation of privacy in the common areas of the building not
open to the general public and that an officer’s entry into a locked apartment building without
consent or a warrant constitutes an illegal entry in violation of the Fourth Amendment. Carriger,
541 F.2d at 549-50. When the officers entered into the locked common area of 2704 Eden Avenue
without permission, exigency, or a warrant, they effected an unconstitutional search based on the
principle set forth in Carriger. See United States v. Heath, 259 F.3d 522, 534 (6th Cir. 2001). We
have since repeatedly applied the reasoning and holding of Carriger as controlling law. See, e.g.,
United States v. Dillard, 438 F.3d 675, 683 (6th Cir. 2006); Heath, 259 F.3d at 533; United States
v. Salgado, 250 F.3d 438, 456 n.3 (6th Cir. 2001); United States v. Kimber, 395 F. App’x 237, 246
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(6th Cir. 2010). We decline to disturb this well-settled law even though “[t]he United States believes
that Carriger and Heath were incorrectly decided.”1 Appellee Br. at 30.
We next evaluate whether the district court properly applied the independent-source rule.
Under the independent-source rule, evidence obtained pursuant to an unconstitutional search will
be admitted if the Government shows that it was discovered through sources wholly independent of
any constitutional violation. United States v. Jenkins, 396 F.3d 751, 757 (6th Cir. 2005). “[P]olice
who carry out a search that they should not have carried out should be put in the same, but no worse,
position than they would have been absent any error or misconduct.” Id. at 758 (emphasis in
original). Where, as in this case, a warrant was obtained based upon information learned through
an improper search, courts consider whether the application for a warrant contains probable cause
apart from the tainted information. Id. at 760. Here, this inquiry requires excising the tainted
information learned through the unconstitutional entry into Mohammed’s apartment building:
(1) that the drug K-9 alerted at the door of Apartment 2, and (2) that the keys obtained from
Mohammed corresponded with the lock on the Apartment 2 door.
We conclude that the untainted information contained in the warrant still supports a finding
of probable cause—a “reasonable grounds for belief, supported by less than prima facie proof but
more than mere suspicion.” United States v. McClain, 444 F.3d 556, 562 (6th Cir. 2005) (quoting
United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc)). We consider, based on a
1
Indeed, it is beyond our province to reconsider Carriger and Heath, for it is well established
that “[a] published prior panel decision ‘remains controlling authority unless an inconsistent decision
of the United States Supreme Court requires modification of the decision or this Court sitting en
banc overrules the prior decision.’” Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009)
(quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).
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practical, common-sense decision, whether the circumstances set forth in the affidavit established
a fair probability that contraband or evidence of a crime would be found in Apartment 2. See United
States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting Illinois v. Gates, 462 U.S. 213, 238-
39 (1983)). To justify a search, there must be a “nexus between the place to be searched and the
evidence sought.” Carpenter, 360 F.3d at 594. “[A]n issuing judge may infer that drug traffickers
use their homes to store drugs and otherwise further their drug trafficking.” United States v.
Williams, 544 F.3d 683, 687 (6th Cir. 2008).
With the assistance of a confidential informant, the police had recorded phone conversations
in which Mohammed and the confidential informant purportedly arranged for the delivery of an
amount of heroin. Nearly all of the informant’s information was corroborated by subsequent events.
The informant told the officers that he and Mohammed had arranged for the delivery of heroin and
that Mohammed would arrive in a newer silver Mercedes Benz. On the night of the “buy-bust,”
although Mohammed did not possess heroin, he did arrive at the predetermined location driving a
2002 silver Mercedes Benz. A trained and reliable2 drug K9 alerted officers of the presence of the
odor of drugs on Mohammed’s Mercedes, and later on the blue Lexus. The confidential informant
also correctly informed the officers of Mohammed’s residence at 2704 Eden Avenue.
Mohammed argues that the untainted affidavit does not support a finding of probable cause
because there would be no information that would link Mohammed to Apartment 2. We disagree.
It is true that by engaging the key in the tumbler, the officers were able to confirm that Mohammed
was linked to Apartment 2; however, this does not mean that the officers did not have reason to
2
The district court made an express finding that the drug K9 was reliable. R. 21 at 15.
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believe that Mohammed lived in Apartment 2 apart from this confirmation. To the contrary, Officer
Schaible testified at the suppression hearing that in using Mohammed’s keys to unlock Apartment
2, the officers were “attempting to corroborate the information that [they had] received that Mr.
Mohammed resided at that apartment . . . .” It is also apparent from the record that the officers did
not use Mohammed’s keys in a fishing expedition to find which apartment he resided in, but instead
went directly to Apartment 2. Under the independent-source rule, we do not excise the fact that
Mohammed resided in Apartment 2 because the officers had an independent source for this
information apart from having used Mohammed’s keys to unlock the door.
Mohammed also attacks the search warrant for failing to establish the confidential
informant’s history of reliability. “When confronted with hearsay information from a confidential
informant, ‘a court must consider the veracity, reliability, and the basis of knowledge for that
information as a part of the totality of the circumstances for evaluating the impact of that information
. . . .’” United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005) (quoting United States v. Helton,
314 F.3d 812, 819 (6th Cir. 2003)). While the warrant does not speak to the informant’s history or
past relationship with officers, the veracity of the information is sufficiently established by the
subsequent events corroborating the informant’s information.
We conclude that the untainted affidavit contains sufficient probable cause to justify the
search of Mohammed’s apartment. We therefore affirm the district court’s judgment denying the
motion to suppress.3
3
Because we find that the independent-source rule saves the search warrant, we do not
address the Government’s alternative arguments for affirmance: that Mohammed lacked standing
to challenge the search, and that the officers acted in good faith reliance on the search warrant. We
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Second Motion to Suppress
Mohammed contends that the district court abused its discretion when it dismissed his second
pretrial motion to suppress, which was filed after he was charged in a superseding indictment. We
agree that the district court abused its discretion and should have considered Mohammed’s second
motion to suppress. When the grand jury returned a superseding indictment three months after
Mohammed filed his first motion to suppress, Mohammed was faced with the new charge of
possessing a firearm in furtherance of a drug-trafficking crime, which carried a five-year consecutive
sentence. Mohammed filed a second motion to suppress on March 1, 2010, and, for the first time,
challenged probable cause for his arrest and the search of his vehicle. However, pursuant to Rule
12(c) of the Federal Rules of Criminal Procedure, the district court established the deadline for filing
pretrial motions to be October 21, 2009.
In dismissing Mohammed’s second motion to suppress, the district court reasoned that
Mohammed had “the opportunity and obligation” to challenge the probable cause for his arrest and
car search during his first motion to suppress filed on October 19, 2009. The district court found
Mohammed’s case to be “almost identical” to United States v. Jones, No. 3:07-CR-162, 2009 WL
973206, (E.D. Tenn. April 9, 2009), where the district court similarly denied leave to file a post-
deadline, pretrial motion to suppress based on the defendant foregoing an opportunity to raise the
note, however, that this court has never held that disclaiming residency at a particular place
extinguishes standing to challenge an unconstitutional search of that residence. Moreover, it is
unclear to what extent Mohammed actually disclaimed his connection with 2704 Eden Avenue in
his circuitous and misleading answers to the officers’ questions. See United States v. Brown, 64 F.3d
1083, 1085 (7th Cir. 1995) (“[A] misleading response to an officer’s question is a far cry from a
consent to search.”). In fact, the district court acknowledged that Mohammed ultimately conceded
that he lived on Eden Avenue. R. 73 at 8.
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challenged issues before the deadline. We find the Jones case to be distinguishable from
Mohammed’s case. In Jones, the defendant had originally filed a pretrial motion to suppress,
alleging an illegal detention, search, and arrest. The defendant thereafter filed an untimely motion
to suppress both the evidence seized in the same traffic stop at issue in the original motion, and
evidence seized as a result of a dog sniff. The only discernable explanation for the defendant’s
untimely motion was to allow the defendant’s third appointed counsel to relitigate the pretrial
motions filed by the defendant’s first attorney. The district court ultimately denied leave to file the
untimely motion to suppress, citing strong policy considerations supporting that decision. See id.
at *4.
Here, Mohammed had the opportunity to challenge his arrest and car search during his first
motion to suppress, but he did not have the obligation to do so. Mohammed’s counsel
understandably focused on challenging the search of the apartment, which formed the basis of
Mohammed’s then-sole charge of possessing heroin with an intent to distribute. It was not until the
grand jury returned a superseding indictment adding a firearm charge that the search of his car, which
produced the firearm and no heroin, became relevant. Rule 12(e) of the Federal Rules of Criminal
Procedure provides that a defendant waives a motion to suppress for failing to raise it before the
deadline set by the district court; however, “[f]or good cause, the court may grant relief from the
waiver.” Fed. R. Crim. P. 12(e). At a minimum, good cause requires a party to “articulate some
legitimate explanation for the failure to timely file.” United States v. Walden, 625 F.3d 961, 965 (6th
Cir. 2010). Here, we find “good cause” to include a situation where the failure to raise a pretrial
motion to suppress is based on its legal irrelevance to the pending charges.
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Although we believe that the district court abused its discretion in denying Mohammed the
opportunity to file a second motion to suppress, we conclude that the error was harmless. See Fed.
R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.”). As noted by the district court, the events that supported a finding of probable
cause to search Mohammed’s apartment largely coincide with probable cause to arrest Mohammed,
which in turn allowed the police to search his car incident to the arrest. Probable cause to arrest
Mohammed was based on the corroborated testimony of the informant, as discussed earlier.
Mohammed’s Motion for Acquittal
Mohammed challenges the sufficiency of evidence leading to his conviction on possession
of a firearm in furtherance of a drug-trafficking offense. “When the sufficiency of the evidence is
challenged on appeal, the standard of review is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime.” United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (quotation marks and citations
omitted). The court makes “all reasonable inferences and credibility choices in support of the jury’s
verdict.” United States v. Springer, 609 F.3d 885, 891 (6th Cir. 2010) (quotation marks and citations
omitted). The jury instructions read:
In order to establish that the Defendant is guilty of this offense, the
government must prove beyond a reasonable doubt each of the following essential
elements:
First: That the Defendant committed the drug trafficking crime charged in
Count 1, for which he is being prosecuted in a court of the United States;
Second: That the Defendant knowingly possessed a firearm; and
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Third: That the Defendant possessed the firearm in furtherance of the drug
trafficking crime charged in Count 1.
The jury was further instructed that the presence of a firearm cannot be the result of accident or
coincidence, and in finding that the firearm was possessed “in furtherance of,” the jury could
consider whether the gun was loaded, the legality of its possession, and the time and circumstances
under which the firearm was found. See United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001).
“By requiring that the possession be ‘in furtherance of’ the drug crime, Congress intended a specific
nexus between the gun and the crime charged.” Id. The firearm must be “strategically located so
that it is quickly and easily available for use.” Id.Mohammed argues that because the handgun was found in his car, a considerable distance
from the heroin recovered from his apartment, the evidence presented at trial was insufficient to
show that the possession of the handgun was “in furtherance” of a drug-trafficking crime. We
disagree.
A rational jury viewing the evidence in the light most favorable to the prosecution had ample
evidence upon which they could find that Mohammed possessed the firearm in furtherance of drug
trafficking. The jury heard testimony and recorded calls suggesting that Mohammed was going to
sell heroin to a confidential informant. Mohammed brought a loaded .45-caliber Taurus handgun
to meet the confidential informant at a predetermined location for a purported drug transaction.
Officer Hubbard testified that the handgun recovered from the center console in the backseat was
“very accessible” to Mohammed because the car was a two-door car. Additionally, the jury heard
testimony from several officers that drug dealers commonly possess and carry firearms to protect
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themselves and their narcotics.4 Although heroin was not recovered from Mohammed’s Mercedes
at the buy-bust, a drug sniff by the K9 indicated the scent of drugs on the Mercedes, where the
Taurus was recovered. The jury also heard testimony that Mohammed had heroin in his vehicle but
decided to take the drugs back to his apartment at the last minute. Police officers recovered more
than 800 grams of heroin from Mohammed’s apartment. In the same apartment, the police recovered
a loaded magazine that matched the Taurus handgun recovered from Mohammed’s vehicle.
Moreover, the jury saw photographs of Mohammed posing in his apartment with a large amount of
cash and a handgun resembling the Taurus handgun recovered from his car. The presence of drugs,
a handgun, and a large amount of cash would allow a rational jury to conclude that Mohammed used
the handgun for protection in conducting drug sales. Further, a rational jury could conclude that the
gun was strategically located in the Mercedes so as to be easily accessible to Mohammed in
furtherance of his drug sale. We therefore affirm the district court’s denial of Mohammed’s motion
for acquittal.
Mohammed’s Motion for a Mistrial Based on the Confrontation Clause
Mohammed argues that his Sixth Amendment right to confrontation was violated when
prosecutors introduced hearsay testimony of a confidential informant who did not testify at trial. He
thus contends that the district court abused its discretion by not granting a mistrial. Mohammed
claims that prosecutors purposely elicited the informant’s hearsay testimony from police officers
4
Mohammed cites Mackey to discount police testimony on this point, but Mohammed’s
reliance on Mackey is misplaced. Mackey only counsels that “standing on its own, [police testimony
regarding drug dealers’ use of firearms] may be insufficient to meet the ‘in furtherance of’ test.”
Mackey, 265 F.3d at 462 (quoting H.R. Rep. No. 105-344, 1997 WL 668339 at *12) (emphasis
added). Here, the police testimony certainly was not the sole consideration by the jury.
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when they had knowledge, before the presentation of opening statements, that they would not call
the confidential informant to testify.
We review an evidentiary ruling related to claimed violations of the Confrontation Clause
de novo. United States v. Robinson, 389 F.3d 582, 592 (6th Cir. 2004). The Government contends
that Mohammed failed to object to certain statements and that we should therefore review for plain
error. See United States v. Hadley, 431 F.3d 484, 498 (6th Cir. 2005). However, a review of the
record reveals that Mohammed’s attorney did indeed make numerous objections to the admission
of testimony based on the sole knowledge of a non-testifying confidential informant. As such, we
review Mohammed’s claims de novo. Testimonial out-of-court statements offered to establish the
truth of the matter asserted are admissible only when (1) the declarant is unavailable and (2) the
defendant had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541
U.S. 36, 53-54 (2004). “[S]tatements of a confidential informant are testimonial,” United States v.
Cromer, 389 F.3d 662, 675 (6th Cir. 2004), however, the Confrontation Clause “does not bar the use
of testimonial statements for purposes other than establishing the truth of the matter asserted,”
Crawford, 541 U.S. at 59 n.9.
Mohammed cites as error the admission of the following testimony elicited by the
Government during the examinations of Officers Fox, Schaible, and Hubbard: (1) Mohammed’s
nickname is “Quan”; (2) Mohammed was the voice on the other end of the recorded phone calls with
the informant; (3) Mohammed and the informant negotiated a deal to exchange the Cadillac and
money for heroin; (4) the drug deal was to take place in the gravel lot of the Shell Gas Station; (5)
the gravel lot was the place where Mohammed and the informant met before; (6) the drug transaction
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was to be for one hundred grams of heroin; and (7) Mohammed is a large-scale drug dealer. The
third through seventh enumerated statements were objected to, the objection was sustained, and the
statements were stricken from the record. The district court also instructed the jury to disregard each
of the statements that were stricken from the record. “The assumption that jurors are able to follow
the court’s instructions fully applies when rights guaranteed by the Confrontation Clause are at
issue.” Tennessee v. Street, 471 U.S. 409, 415 n.6 (1985). This presumption is overridden “only
when there is a strong likelihood that the effect of the evidence would be devastating to the
defendant and . . . there is an overwhelming probability that the jury will be unable to follow the
court’s instructions.” Washington v. Hofbauer, 228 F.3d 689, 706 (6th Cir. 2000) (internal quotation
marks and citations omitted). Here, there is neither a “strong likelihood” that the effect of the
stricken testimony was devastating to Mohammed’s defense nor an “overwhelming probability” that
the jury was unable to follow the court’s directive.
The first two statements that were not stricken from the record violate the Confrontation
Clause. See United States v. McGee, 529 F.3d 691, 698 (6th Cir. 2008) (finding a Confrontation
Clause violation where police testified to a confidential informant’s out-of-court statements
identifying the defendant as the person he talked to on the phone and with whom he arranged the
drug deal). The statements were testimonial, see Cromer, 389 F.3d at 675, because the confidential
informant communicated the statements to the police anticipating their use against Mohammed
during the pending investigation and subsequent prosecution. The statements were also out-of-court
statements used to prove the truth of the matter asserted—that Mohammed’s street name was
“Quan,” and that his voice was captured in the recorded phone calls. It is undisputed that
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Mohammed did not have a prior opportunity to cross-examine the confidential informant. Violations
of the Confrontation Clause, however, are subject to harmless-error analysis. McGee, 529 F.3d at697 (citing Chapman v. California, 386 U.S. 18, 22-23 (1967)). “Errors are harmless in terms of
their effect on the factfinding process at trial where the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id. (quotation
marks and citations omitted). In determining whether an error was harmless, courts consider: (1) the
importance of the witness’s testimony in the prosecution’s case; (2) whether the testimony was
cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of
the witness on material points; (4) the extent of cross-examination otherwise permitted, and (5) the
overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
The testimony that Mohammed went by the alias “Quan” was not a critical fact in the
prosecution’s case. However, the identification of Mohammed as the voice on the recorded tapes
was important to the prosecution’s case to the extent that the recorded conversations suggest that a
drug sale was to occur at the Shell station between the two people conversing. Yet, as helpful as it
may have been, this evidence was not indispensable to the prosecution’s case because there was
other corroborating evidence indicating that Mohammed intended to sell heroin to the confidential
informant at the Shell gas station. For example, Sami Elias, a jailhouse informant, testified that
Mohammed told him how he initially planned to meet the confidential informant with the heroin,
but then changed his mind last minute and left the heroin at his apartment. Additionally, the large
amount of heroin located at Mohammed’s apartment together with the evidence that Mohammed
arrived at the Shell station, waved his arm upon seeing the Cadillac, and moved to open the Cadillac
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door, further supports the conclusion that Mohammed was the person the confidential informant
communicated with in the recorded phone conversations. In light of the whole record, we conclude
that the Confrontation Clause errors were harmless, and the district court therefore did not err by not
declaring a mistrial.
Prosecutorial Misconduct
Mohammed alleges that the Government engaged in prosecutorial misconduct during its
opening statement and throughout the trial by purposely eliciting hearsay statements from its
witnesses when it knew that the confidential informant was unavailable. A district court’s denial of
a motion for mistrial based on prosecutorial misconduct is reviewed for an abuse of discretion.
United States v. White, 563 F.3d 184, 193 (6th Cir. 2009). We first look at whether the prosecutor’s
behavior was improper. Id. We then evaluate whether the remarks were flagrant and warrant
reversal. Id. “To determine the flagrancy of the prosecutor’s remarks, we look at (1) whether the
statements tended to mislead the jury and prejudice the defendant; (2) whether the statements were
isolated or pervasive; (3) whether the statements were deliberately placed before the jury; and
(4) whether the evidence against the accused is otherwise strong.” Id.Mohammed contends that during opening statements, the Government stated that the jury
would hear evidence that Mohammed arranged to sell drugs in exchange for a car and money.
Mohammed alleges that the Government made this comment knowing that the confidential
informant would not testify. This argument is without merit. The Government has maintained that
at the time of opening statements, it reasonably expected that the confidential informant would
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testify. In response to Mohammed’s allegations that the Government engaged in prosecutorial
misconduct, both during opening statements and throughout the trial, the district court observed:
I don’t think the jury has been misled nor the accused prejudiced, and I am
reasonably convinced that the government’s counsel did not deliberately mislead the
jury and had a reasonable expectation that the confidential informant might be
produced. But even in the event that he wasn’t produced, that was not critical to the
government’s case.
As we look back now, the case is strong against the Defendant. At the time
the [motion for a mistrial] was filed, it was two hours of testimony under our belts,
shall we say, and the only the second witness.
...
And I do agree with [the Government] that [Frazier v. Cupp, 394 U.S. 731(1969)] is very close to our circumstances here. That was a case in which a rather
important witness at the last minute decided to stand on his Fifth Amendment rights
and not testify, which the government did not anticipate in that situation. And the
court found that the prosecutor had acted in good faith with the expectation that the
witness would testify, and the [Supreme Court] concluded the evidence presented on
the record was sufficient to support the conviction.
So the motion is denied. . . .
R. 78 at 161-63.
The district court accurately described the Supreme Court’s holding in Frazier and did not
abuse its discretion by finding that the circumstances in Frazier were similar to the circumstances
in Mohammed’s case. To counter, Mohammed points to a colloquy between the Government and
the district court in which the Government explained that it received a last-minute call from the
confidential informant’s attorney, who stated that the confidential informant would not testify. The
Government explained that, even at that point, it was still hopeful that the informant would testify,
but those hopes just failed to materialize. Mohammed has not pointed to any evidence suggesting
that the Government falsified this explanation, or otherwise acted in bad faith. Therefore, we find
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that the district court did not abuse its discretion in denying Mohammed’s motion for mistrial due
to prosecutorial misconduct.
Admission of Photographs of Mohammed with Money and a Gun
Mohammed next claims that the district court abused its discretion in admitting into evidence
three photographs of Mohammed posing with a stack of money and a gun sticking out of his pocket.
In all three photographs Mohammed was standing in his apartment. The photographs were recovered
from a digital camera that was found in Mohammed’s apartment during the search. Mohammed
argues that the photographs were substantially more prejudicial than probative and should not have
been admitted. See Fed. R. Evid. 403. Mohammed argues that the photos were admitted for “the
sole purpose of getting the jury to believe that the gun had been in the apartment with the drugs at
some other time.” Appellant’s Br. at 48. He further claims that the photos risked provoking an
emotional reaction from the jury as they depicted “an African American male with a gun and striking
a gangster pose.” Id.The district court is “granted very broad discretion in determining whether the danger of
undue prejudice outweighs the probative value of the evidence.” United States v. Mack, 258 F.3d
548, 555 (6th Cir. 2001) (internal quotation marks and citation omitted). Here, the district court did
not abuse its broad discretion. We are not convinced that the photographs’ probative value was
“substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. The photographs
were relevant to both the § 841 and the § 924(c) counts because they purportedly: (1) identified the
Taurus handgun found in the Mercedes Benz as belonging to Mohammed, whereas Mohammed had
suggested at trial that the firearm found in his car may have belonged to the passenger; (2) showed
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that Mohammed possessed large amounts of cash; and (3) connected the large amount of cash and
a firearm to the apartment where the heroin was found. Further, we have recognized that “firearms,
as tools of the drug-trafficking trade, are probative evidence in drug prosecutions.” United States
v. Wheaton, 517 F.3d 350, 364 (6th Cir. 2008). Mohammed does not cite any countervailing
prejudice that indicates the district court abused its discretion in admitting the photographs.
Accordingly, we affirm the district court.
Mohammed’s Pre-Miranda Statements
Mohammed argues that the district court erred in denying a motion to suppress statements
that he claimed were made in violation of his Fifth Amendment rights. We review the denial of a
motion to suppress for clear error as to factual findings and de novo as to conclusions of law. United
States v. Simpson, 520 F.3d 531, 534 (6th Cir. 2008). The district court found that Officer Schaible
placed Mohammed in handcuffs and, before conducting a pat down, asked Mohammed whether he
had any weapons, drugs, or anything sharp that would stick him. Mohammed denied having any
contraband. Thereafter, the officer conducted a pat-down search, and then read the Miranda
warnings to Mohammed. After Mohammed indicated that he understood the Miranda warnings, the
officer asked Mohammed if there were any drugs or weapons in his car, to which Mohammed replied
that there was a gun in the backseat console. Mohammed contests only the failure to suppress his
pre-Miranda statement that he had no drugs on his person.
“[W]hen officers ask questions ‘necessary to secure their own safety or the safety of the
public’ as opposed to ‘questions designed solely to elicit testimonial evidence from a suspect,’ they
do not need to provide the warnings required by Miranda.” United States v. Williams, 483 F.3d 425,
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428 (6th Cir. 2007) (citing New York v. Quarles, 467 U.S. 649, 659 (1984)). This “public-safety
exception” applies “when officers have a reasonable belief based on articulable facts that they are
in danger.” Id. (internal quotation marks omitted). In Williams, we established that an officer’s
belief that he is in danger is reasonable only if the officer has reason to believe “(1) that the
defendant might have (or recently have had) a weapon, and (2) that someone other than police might
gain access to that weapon and inflict harm with it.” Id.The district court concluded “Officer Schaible had a reasonable belief that Defendant
presented a safety threat,” by reasoning that “it is generally recognized that drug traffickers have a
propensity to carry weapons,” R.38 at 4 (citing United States v. Williams, 272 F. App’x 473, 477-78
(6th Cir. 2008)). We agree with the district court’s conclusion that Officer Schaible had a reason to
believe that Mohammed, by the nature of his suspected drug dealing, had a weapon readily
accessible. This reasonable belief would warrant the officer’s questions regarding a weapon, but we
have not specifically addressed if questions about whether a suspect is carrying drugs or drug
paraphernalia, in anticipation of a pat down, are permissible under the public-safety exception.
Other circuits that have addressed this issue have found that these type of preliminary questions are
appropriate under the public-safety exception. See United States v. Reyes, 353 F.3d 148, 152-53 (2d
Cir. 2003) (collecting cases) (upholding under the public-safety exception an officer’s question, just
before a pat down, whether a suspected narcotics dealer had anything in his pocket that could hurt
the officer, where the question was limited to objects located on the suspect’s person and prompted
by a reasonable concern for the officer’s safety); United States v. Lackey, 334 F.3d 1224, 1227-28
(10th Cir. 2003) (officer’s question before a pat down whether a suspect had guns or anything sharp
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on his person was proper under the public-safety exception as the question addressed a real and
substantial risk of injury during a routine search or frisk); United States v. Carrillo, 16 F.3d 1046,
1049-50 (9th Cir. 1994) (officer’s question if suspect had drugs or needles on his person met public-
safety exception because it stemmed from objectively reasonable need to protect himself). “Firearms
and sharp objects, such as razor blades and hypodermic needles, are ‘tools of the drug trade’
regularly found on narcotics traffickers.” Reyes, 353 F.3d at 154. Similarly to other circuits, we
conclude that the officer’s question whether Mohammed, a suspected heroin dealer, had drug
paraphernalia on his person that could harm the officer in conducting a routine pat down stems from
an objectively reasonable concern for the officer’s safety. Accordingly, we find that the officer’s
question was proper under the public-safety exception to the extent that it asked about weapons or
other harmful objects. Even if we were to conclude otherwise, the admission of Mohammed’s
statements in response to the officer’s pre-Miranda question pertaining to whether Mohammed had
drugs or anything that could “stick” the officer are harmless. Mohammed responded to the officer’s
question in the negative. Surely, the admission of a statement that Mohammed did not possess drugs
or drug paraphernalia on his person does not prejudice his defense.
A Reliability Hearing on Jailhouse Informant
Mohammed argues that the district court abused its discretion in refusing to hold a reliability
hearing on jailhouse informant Sami Elias. We review a district court’s decision to deny an
evidentiary hearing for an abuse of discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir.
2005). On the morning of trial, May 24, 2010, Mohammed made a motion to voir dire the jailhouse
informant out of the presence of the jury to determine his reliability. The district court made a
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“tentative ruling” not to permit a reliability hearing and advised the parties that “if something
develops in the course of the trial, [the court] would revisit that issue.” R. 76. at 40. Mohammed
failed to renew a motion for a reliability hearing.
Elias wrote a letter to the federal prosecutor offering valuable testimony, hoping to receive
the Government’s support for an early termination of federal supervision during his probation. Elias
testified that he was assigned to the same unit as Mohammed and that the two of them had
conversations relating to Mohammed’s charges. Elias claimed that Mohammed revealed how he
planned to meet the confidential informant to sell him heroin, but had changed his mind at the last
second about his decision to carry the heroin to the meeting. Mohammed cross-examined Elias,
exposing Elias’s multiple felony convictions and desire to receive favorable consideration in a
pending matter. Other than these traditional considerations of witness credibility, Mohammed does
not point to any particular circumstance that would compel the district court to hold a reliability
hearing. Further, Mohammed points to no case law from this circuit that requires the district court
to hold a reliability hearing for a jailhouse informant, nor any case law in which we have found an
abuse of discretion for failing to hold a reliability hearing. The jury was allowed to weigh critical
aspects of the jailhouse informant’s credibility in rendering a verdict. We see no reason to disrupt
their verdict. In this case, the district court did not abuse its discretion in denying Mohammed a
reliability hearing. This conclusion is bolstered by the fact that Mohammed failed to renew his
motion for a reliability hearing.
Jailhouse Informant and Mohammed’s Sixth Amendment Right to Counsel
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Mohammed next claims that the “Government intentionally created a situation likely to
violate Mohammed’s Sixth Amendment rights when it kept Elias housed in the same unit with
Mohammed after Elias contacted the Government about wanting to cooperate in exchange for
leniency.” Appellant’s Br. at 54. Because Mohammed did not argue this claim in the district court,
it is subject to plain-error review. United States v. McAuliffe, 490 F.3d 526, 539 (6th Cir. 2007).
“[O]nce a defendant’s Sixth Amendment right to counsel has attached, he is denied that right when
federal agents ‘deliberately elicit’ incriminating statements from him in the absence of a lawyer.”
Kuhlmann v. Wilson, 477 U.S. 436, 457 (1986). In Kuhlmann, the Supreme Court observed:
Since the Sixth Amendment is not violated whenever—by luck or happenstance—the
State obtains incriminating statements from the accused after the right to counsel has
attached[] a defendant does not make out a violation of that right simply by showing
that an informant, either through prior arrangement or voluntarily, reported his
incriminating statements to the police. Rather, the defendant must demonstrate that
the police and their informant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks.
Id. at 459 (internal quotation marks and citations omitted). We have held that absent “direct written
or oral instructions by the State to a jailhouse informant,” agency is determined by analyzing “the
facts and circumstances of a particular case to determine whether there exists an express or implied
agreement between the State and the informant.” Ayers v. Hudson, 623 F.3d 301, 311-12 (6th Cir.
2010).
Under a plain-error review, Mohammed cannot demonstrate that the Government worked
with Elias to “deliberately elicit” incriminating statements from him. To the contrary, Mohammed
voluntarily discussed his circumstances with Elias, and only afterwards did Elias use this information
as bargaining power by writing a letter to the Government explaining the valuable information that
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he had. The Government contends that Elias wrote an unsolicited letter to the Assistant United
States Attorney handling Mohammed’s case, and that the AUSA had no knowledge of Elias prior
to receiving his letter. Appellee Br. at 68. There had been no previous relationship between Elias
and the Government because prior to Mohammed’s case, Elias had never been a jailhouse informant.
Id. Mohammed does not proffer evidence to rebut the Government’s contentions. There is no
indication in the record that Elias obtained information from Mohammed after meeting with the
AUSA. Moreover, nothing in the record suggests that Elias’s trial testimony is based on information
obtained after sending his letter to the AUSA. In the absence of evidence to the contrary, we find
no plain error.
Sentencing: Procedural and Substantive Unreasonableness
Mohammed claims that his sentence was both procedurally and substantively unreasonable.
We review a sentence for procedural and substantive reasonableness using an abuse-of-discretion
standard of review. Gall v. United States, 552 U.S. 38, 46 (2007). A sentence within the Guidelines
range is presumptively reasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008).
Mohammed was sentenced to 157 months of imprisonment, which represented the bottom of the
Guidelines range. Mohammed claims the court erred by not giving adequate consideration to the fact
that failed plea negotiations resulted in a superseding charge for firearm possession. The district
court observed:
[I]t occurs to me that perhaps the government offered as a part of the Plea Agreement
that they would not charge your client with the gun count. And when he rejected the
Plea Agreement, the gun charge was, in fact, taken to the grand jury and added to the
charges pending, which doesn’t sound terribly vindictive to me. . . .
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R. 80 at 7. We agree with the district court, as our case law supports the conclusion that the
Government did not act vindictively. See United States v. DeJohn, 368 F.3d 533, 545 (6th Cir. 2004)
(“This Circuit has consistently indicated that when the right asserted by the defendant is simply the
right to go to trial, an additional charge entered after a failed plea bargain cannot . . . form the
substance of a viable vindictive prosecution claim.”). Accordingly, we reject Mohammed’s
argument.
Mohammed also claims that his sentence was substantively unreasonable because the court
failed to vary downward from the Guidelines range based on Mohammed’s arguments that his
immigration status: (1) requires him to spend a longer amount of time in prison than a similarly
situated United States citizen, who, unlike Mohammed, would potentially be eligible for a halfway
house; and (2) makes him ineligible for minimum-security prison. The district court noted that
deportation is mandatory and permanent for felony drug convictions. The district court also
recognized that because Mohammed is a deportable alien, he is subject to more restrictive terms of
confinement. The court further acknowledged that his status as a deportable alien could be, in some
cases, an appropriate basis for departure, but reasoned that it was not appropriate in Mohammed’s
case because his possession of a large amount of narcotics and possession of a firearm could
independently render him ineligible for a minimum-security prison. The district court also reasoned
that because halfway houses are intended for inmates who are about to re-enter the community, and
Mohammed as a deportable alien would not re-enter the community regardless of the length of his
sentence, it did not feel compelled to grant Mohammed a downward variance. Ultimately, the
district court concluded that the mitigation factors proffered by Mohammed were not compelling and
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were “substantially outweighed by the seriousness of his conduct.” R. 80 at 14. We find that the
district court properly considered Mohammed’s mitigation arguments and did not abuse its discretion
in declining to depart downward from the bottom of the Guidelines range.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.