United States v. Alwan, Sharif A. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1653
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHARIF ALWAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 582--Ruben Castillo, Judge.
ARGUED October 24, 2001--DECIDED January 25, 2002
Before HARLINGTON WOOD, Jr., COFFEY, and
EASTERBROOK, Circuit Judges.
PER CURIAM. Sharif Alwan was charged in
a one-count indictment with contempt of
court in violation of 18 U.S.C. sec.
401(3) for failing to testify before a
federal grand jury as ordered./1 He was
found guilty by a jury on October 20,
2000. On December 15, 2000, defendant’s
post-trial motion for judgment of
acquittal or in the alternative for a new
trial was denied. Subsequently on March
7, 2001, the defendant was sentenced to
24 months imprisonment followed by 5
years supervised release, but no fines,
restitution or special assessments were
imposed. The defendant remains
incarcerated.
Alleged trial errors on appeal involve
the admission of evidence, possible
exculpatory evidence not revealed by the
government, and sentencing errors, but
the result we reach does not require an
examination of all these issues.
I. BACKGROUND
Some of this factual background is not
contested by the defendant, but where it
is it will be indicated. The facts are
set forth in some detail so the case may
be better understood./2
The defendant is a legal permanent
resident of the United States, who was
born in Ramallah in the West Bank of
Israel, commonly known as the Occupied
Palestinian Territories. There the
defendant was a friend and classmate of
Rezeq Saleh. They often studied together.
In 1989 the defendant emigrated to
Chicago where his school friend, Rezeq
Saleh, also came to live. In Chicago the
defendant took classes at two local
colleges but had no regular job. He did
some odd jobs but said he was regularly
supported by his brother.
In September 1992, the defendant flew
back to the Middle East with Rezeq Saleh.
Their tickets were purchased with one
payment of $2,770.90 for travel via
Amsterdam to Damascus, Syria, arriving in
Damascus on September 28. The tickets
provided for an open return not good
after December 26, 1992. At trial the
defendant explained that he went to
attend his cousin’s wedding in Jordan,
but he could not remember whether or not
he was accompanied on the trip by Rezeq
Saleh.
Subsequently, in January 1993, a person
named Muhammad Salah, a resident of the
Chicago area who was arrested in Israel,
gave several statements to Israeli
authorities. He was a member of Hamas,
which is identified as a political
organization promoting violence to help
establish an independent Palestinian
homeland. In 1995, Salah’s statements
were provided to the FBI, and then to the
United States district court in 1996 for
use in the extradition proceeding of
Mousa Abu Marzook (identified below). The
Alwan/Saleh tickets and Middle East
itinerary were obtained by the FBI in an
effort to corroborate Salah’s statements.
At about this same time in 1995, the
defendant returned to the Middle East and
while en route from Jordan to the West
Bank was arrested by Israeli authorities.
At this point the government’s evidence
and the defendant’s story diverge. After
he was arrested the defendant says that
for two weeks the authorities tied him to
a small, misshaped chair, covered his
head with a dirty sack, shook him, and
deprived him of sleep while being
repeatedly questioned. As a result of
that ordeal, he says he wrote out and
signed a statement in Arabic. At trial he
testified his statement was dictated to
him and was mostly false.
In his handwritten Arabic statement the
defendant says he and Rezeq Saleh were
recruited in Chicago by Hamas in 1990,
given code names and then sent for
training. First, he was sent for
political training with Mousa Abu Marzook
to Al-Amal Camp in Virginia. In his
statement defendant wrote,
A number of lecturers attended the camp,
including the head of the political
committee, Najeeb Al-Ghosh, Abu Ahmad
[AKA Muhammad Salah], and Muhammad Saleh.
The conference was held over a weekend.
Mousa Abu Marzook gave a speech
concerning the political situation of the
Gulf War, the status quo of the Occupied
land, and the necessity of assisting the
people in the Occupied Territories. I
attended a camp that took place in
Milwaukee. It was held on a weekend. I do
not recall the exact date. Theoretical
weapon training was conducted at this
conference, or camp. The training on
Klash (Kalishnikov or AK-47), M-16, and #
9 revolver was conducted. Later,
theoretical training was given on how to
deal with explosives, as far as
assembling, types, and connecting, and
how to booby-trap a car. Among those who
attended this training were Rezeq Saleh,
Muhammad Saleh, Abdul Hameed, as well as
a Moroccan instructor, an instructor by
the name of Khalid (LNU), and three other
individuals, whose names I do not know
because coded names were used. My code
name at this session was Ahmad and
Abdullah was the code name for Rezeq
Saleh. This session lasted for
approximately three days until the end of
the week.
Government Exh. 11B. Defendant’s
statement was signed as Shariff [sic]
Ahmad Muhammad Dehabra.
Then in 1992 more training followed when
the defendant and Rezek Saleh were sent
by Muhammad Salah and Muhammad Saleh from
Chicago to Damascus, and later to Lebanon
for additional weapons and explosives
training. The defendant returned to this
country at the end of February 1993, but
two weeks later he received orders, he
says, to freeze all Hamas activities and
to contact no one. Muhammad Salah had
been arrested in January 1993. Following
his Israeli interrogation, the defendant
was charged with a lesser offense to
which he pleaded guilty in return for a
lighter sentence. He was released in June
1997 after serving a little less than two
years. A month or so later the defendant
got married and remained in the West Bank
until June of the following year.
Upon his return to the United States,
the defendant was subpoenaed to testify
before the Special June 1997-2 Grand Jury
investigating the criminal activity of
Hamas in the Chicago area. The FBI had
received allegations that the defendant
was involved with Hamas. In July 1998,
the defendant appeared before the grand
jury, but after answering a few
background questions he exercised his
Fifth Amendment privilege. He
specifically refused to answer any
questions about allegations of money
laundering between the Middle East and
the United States. Later, after that
grand jury appearance, the defendant
returned to Ramallah in January 1999 to
visit his family. He returned to this
country in time to be subpoenaed again,
this time before the Special January
1999-2 Grand Jury. The Chief United
States District Judge, before whom the
defendant appeared, granted the defendant
immunity and then ordered him to testify.
Represented by counsel, the defendant
informed the district judge that he would
not answer questions before the grand
jury because the immunity he had been
granted would not protect him on any
return trip to Israel or Jordan.
The defendant then appeared before the
special grand jury in July 1999, at which
time an Assistant United States Attorney
explained to him the district judge’s
order to testify. The defendant responded
that even though he understood he had
been granted immunity, that immunity
would not protect him the next time he
passed through Jordan to visit his
family. He answered a few background
questions, but then said he would answer
no further questions because the immunity
would not protect him from Israeli
authorities whenever he again returned to
the Middle East. He understood, he said,
that the threat of persecution in Israel
did not excuse him from testifying before
the grand jury in Chicago, but he
explained he was in a difficult position
and would answer no further questions.
The defendant secured a new attorney who
appeared before the district judge
seeking the defendant’s release from
federal custody. His attorney explained
that the defendant’s refusal to testify
was based on his genuine fear that should
he return to the West Bank to visit his
family, he would be persecuted. A
different United States district judge
temporarily became Acting Chief Judge.
The government again served the defendant
with a grand jury subpoena and secured
another immunity order. The Acting Chief
Judge warned the defendant, represented
by his new attorney, that he could be
prosecuted for criminal contempt if he
failed to testify pursuant to the
immunity order. Again, the defendant
responded he had no choice and would not
testify because of fear of persecution
whenever he might return home in the
Middle East. When the defendant later
appeared before the grand jury that day,
the Assistant United States Attorney
again explained the immunity order and
the possibility that the defendant might
be prosecuted for contempt of court if he
again refused to testify as ordered. It
was further explained that the grand jury
was investigating possible federal
criminal violations involving Hamas. The
defendant again declined to answer any
questions, explaining that because of the
risk of his possible persecution in the
Middle East, he had no choice.
Nevertheless, the Assistant United States
Attorney propounded a series of questions
to the defendant about his recruitment by
Hamas, his relationship with Muhammad
Salah, and the military training he
received both in the United States and in
Lebanon and Syria at the direction of
Muhammad Salah and Abu Marzook. The
Assistant United States Attorney also
inquired about the defendant’s travel to
Damascus with Rezeq Saleh when he used
the tickets purchased by Muhammad Salah.
The defendant’s responses were polite,
positive, and clear. He would answer no
questions.
As promised by the district court,
defendant’s contempt trial followed. The
defendant testified at trial explaining
he refused to testify before the grand
jury because of his fear for himself and
his family should he testify that his
Israeli confession was false and if he
further told of the threats against him.
He said also that he was concerned that
the Shin Bet, Israeli security forces,
would arrest and torture his family. He
further explained that if he had been
assured by this government that his
testimony before the grand jury would not
get back to the Israelis, and further, if
his family had been offered the
protection of this government, he would
have answered the questions, or "might
have." The defendant conceded, however,
that he had not asked the court or this
government for any protection. He also
related that during his incarceration in
Israel he had complained about his
treatment to both the Israeli Ministry of
Justice and the Red Cross, but no harm
had resulted to his family from those
complaints. In addition, after his
release and while living in the West
Bank, he testified there were no related
incidents. Even after his return to the
United States and after his Israeli
lawyer and his father in the West Bank
had made critical public statements about
the defendant’s treatment by the Israeli
authorities, there were no repercussions.
The defendant claimed, however, that when
he was leaving Israel he encountered two
individuals he believed to be members of
Shin Bet who warned him that if he did
anything wrong he would be murdered, but
he refused to reveal the names of those
two individuals. Nothing happened to the
defendant or his family after that
warning.
II. DISCUSSION
A. Defendant’s "Confession"
The crux of the case is the defendant’s
claim that he was denied due process when
the court admitted the purported English
translation of his Arabic "confession"
obtained, he says, "through duress and
torture in Israel in 1995." Defendant
maintains that the district court judge
first failed to determine the
admissibility of his confession under 18
U.S.C. sec. 3501./3 Defendant’s original
objection at trial to the use of his
statement was to its "relevancy," not its
"involuntariness," which he did not raise
until mid-trial. That is too late. See
Fed. R. Crim. P. 12(b) & (f); Davis v.
United States, 411 U.S. 233, 245 (1973).
His reliance on sec. 3501(b)-(d) is
misplaced. Had the defendant made a
timely motion, the government in reply at
any resulting suppression hearing was
prepared to call as a government witness
Lt. Major Marco Dahan, the Israeli
officer who had taken the defendant’s
statement in Israel, as a government
witness. The defendant’s mid-trial
strategy would have unfairly prejudiced
the government’s case and, in the case of
an adverse ruling, its ability to appeal
during trial. The defendant offers no
explanation for his delay nor does he
make any effort to show "good cause" for
the delay. See Fed. R. Crim. P. 12(f);
see also United States v. Gibson, 170
F.3d 673, 677-78 (7th Cir. 1999) (holding
under Fed. R. Crim. P. 52(b) that failure
to make a timely objection constitutes
forfeiture of the argument on appeal).
Given the defendant’s failure to object,
we review the district court’s decision
to admit the evidence for plain error
only, United States v. Olano, 507 U.S.
725, 731-35 (1993), and find no error.
Even if the district court had erred, the
harmless error doctrine applies to
involuntary confessions. Arizona v.
Fulminante, 499 U.S. 279, 308 (1991). A
review of the briefs and the record fully
sustains the view that any alleged error
was harmless.
Next the defendant complains that the
government failed to comply with 18
U.S.C. sec.sec. 3491 et seq. before using
the defendant’s handwritten Arabic
statement./4 The other sections referred
to are not applicable. Section 3492
provides a process for a consular
official to certify foreign documents;
sec. 3493 provides for a deposition to
authenticate foreign documents, but that
process is not relevant in this case; and
sec. 3494 provides for the certification
of foreign documents, which is also not
applicable. The defendant admitted he
wrote his statement out himself. The
English translation used by the
government was conceded by the defendant
to be a "fair translation," except the
defendant noted, it referred to Milwaukee
as a "state" instead of a city. That was
an insignificant and harmless
characterization that probably gave the
good citizens of Wisconsin and Milwaukee
only a chuckle. Again there was no error
in the use of the translated version of
his statement. At the time the court
admitted the statement, the defendant did
not raise these objections and his
afterthoughts now come too late. There
was no error, not even plain error.
B. Brady Claim
The defendant claims to have suffered a
violation of due process under Brady v.
Maryland, 373 U.S. 83 (1979), because the
government did not disclose to him prior
to the close of the case certain possibly
exculpatory information. A Brady holding
is reviewed for abuse of discretion.
United States v. Grintjes, 237 F.3d 876,
880 (7th Cir. 2001).
This issue first came to light in
chambers before Judge Castillo on October
20, 2000. While the jury was
deliberating, government counsel
apologetically advised the court that he
had just come across a document "arguably
favorable" to the defense. The transcript
of what transpired in chambers was sealed
because it related to a government
document classified as top secret. We
have now examined it. The district court
judge ultimately concluded that the
possible Brady violation by the
government was not deliberate and that on
its merits there was no reasonable
possibility that the outcome of the case
could have been affected by the
undisclosed information. We fully agree
and find no abuse of discretion. The
trial judge handled this post-trial
development as carefully and
considerately as anyone could have done.
The undisclosed bit of information could
not have been magnified by defendant’s
counsel so as to make any possible
difference, and, in any event, it would
have been lost in all the evidence of
defendant’s guilt. See United States v.
Cruz-Velasco, 224 F.3d 654, 662 (7th Cir.
2000).
C. Admission of Evidence Concerning
Hamas
It is well understood that evidentiary
rulings by the trial judge are reviewed
for an abuse of discretion. United States
v. Aldaco, 201 F.3d 979, 985 (7th Cir.
2000). The defendant complained that some
of the evidence admitted in the
government’s rebuttal case was
"irrelevant," "collateral," or lacking
proper foundation. As the defendant
failed to object at trial, the plain
error standard of review applies. See
United States v. Hughes, 213 F.3d 323,
328 (7th Cir. 2000). There is nothing
raised at this late date by defendant
that could possibly have had any
substantial effect on the verdict. The
result reached was not inconsistent with
substantial justice. His late arguments
border on the frivolous.
The government called FBI Special Agent
Charles Peters as an expert to explain
the role and function of Shin Bet in
Israel as an agency concerned with
internal security, not prosecutions. The
agent testified about other facts in the
case and stated that he had found no
evidence in the record, including in the
grand jury transcripts, where the
defendant ever expressed any concern for
the safety of his family. The defendant
offered no timely explanation of why any
of the government’s evidence was only
collateral. He objected to the FBI
agent’s summary of the record as
"hearsay," but he pointed out no error.
The defendant has abandoned that
objection here. We find no error of any
degree.
The airline tickets used by the
defendant and his former schoolmate to
travel to Damascus in 1992 were admitted
into evidence and shown to the jury
before the defendant objected to their
admission for lack of adequate
foundation. On cross-examination the
defendant claimed he was not familiar
with the tickets. Agent Peters had, as
part of his investigation efforts, come
into possession of the tickets. With the
defendant’s handwritten statement that he
and Rezeq Saleh had traveled to Damascus
in 1992, this provided sufficient
foundation for admission of the tickets
as evidence for jury consideration.
Federal Rule of Evidence 803(6) requiring
a business records exception to hearsay
did not apply as defendant argues.
Contrary to the defendant’s claim, it is
sufficient that the exhibit supplied
strong circumstantial evidence of the
accuracy of the defendant’s statements to
the Israeli authorities. There was no
abuse of discretion in admitting this
evidence.
The defendant also objects to the
admission of evidence about Hamas which
was offered by the government’s expert
witness in response to defendant’s
efforts to establish a coercion defense.
The evidence, which suggested the
defendant was attempting to protect Hamas
and Rezeq Saleh, came only in response
and in answer to the defendant’s
explanation. In the government’s case-in-
chief, the evidence only explained the
general nature of the grand jury
investigation. Reference was again made
to Hamas when the government presented
evidence of the defendant’s refusal to
testify on July 11, 2000. His refusal to
testify after being granted immunity,
however, is the very basis of the charge
in this case. The defendant argues it was
a violation of Fed. R. Evid. 403. His
explanation is that the government’s
Hamas evidence was intended "to brand
Defendant with a huge scarlet ’H,’ to
paint Defendant with provocative evidence
[to characterize him] as a murderous,
bloodthirsty Hamas terrorist seeking to
protect his ’buddies.’" That argument is
colorful and imaginative, but we find no
basis for it in the record. There was no
abuse of discretion in the admission of
the Hamas evidence.
The defendant’s other objections to the
evidence are without merit. Agent Peters’
testimony about Shin Bet was without
objection at the time. The defendant
further objects to Agent Peters’
testimony concerning his review of the
transcripts in relation to whether the
defendant ever stated he feared for his
safety. The defendant’s objection now is
that it was hearsay, but Fed. R. Evid.
1006 specifically permits voluminous
writings as a practical matter to be sum
marized. The defendant did not cross-
examine Agent Peters on this issue. We
find no error.
D. Sentencing Issues
Defendant was convicted of criminal
contempt in violation of 18 U.S.C. sec.
401(3), but the sentencing problem arises
as criminal contempt does not have a
separate guideline as explained in the
United States Sentencing Guidelines
("U.S.S.G." or the "guidelines") sec.
2J1.1, comm. n.1 (2000). The
circumstances ordinarily surrounding
contempt do not fit a pattern and there
is the additional important need "to
vindicate the authority of the court."
Id. Although the court is referred to
sec. 2X5.1 to apply the most analogous
offense guideline, sec. 2J1.1 recognizes
that in some cases a defendant’s conduct
may justify the application of sec. 2J1.2
for obstruction of justice. Sentencing
under the criminal contempt statutes, 18
U.S.C. sec. 401 or Fed. R. Crim. P. 42,
is a matter of discretion, see Green v.
United States, 356 U.S. 165, 188 (1958),
in which "we must place great reliance on
the district court’s decision." United
States v. Monteleone, 804 F.2d 1004, 1011
(7th Cir. 1986). The findings of fact in
a district court’s sentencing
determination are reviewed for clear
error. See United States v. Hickok, 77
F.3d 992, 1007 (7th Cir. 1996).
Judge Castillo, who listened to the
trial evidence and considered the cases
cited by the defendant and the government
(which need not be individually reviewed
here), adopted the probation officer’s
presentence report and made the finding
that "in no uncertain terms" the
defendant’s refusal to testify "was an
effort to obstruct an ongoing criminal
investigation into potential criminal
activities by various individuals and
various organizations." The judge branded
the defendant’s explanation of fearing
for the safety of himself and his family
and his explanation of his travel to the
Middle East as perjurious. The trial
judge’s view of the situation and his
application of sec. 2J1.2 is fully
sustained by a review of this record.
The defendant also attacks the sentence
claiming there was no evidence to support
sentencing under sec. 2J1.2(b)(2), which
provides for a 3-level enhancement for
"substantial interference with the
administration of justice." The district
court’s factual findings to support an
enhancement must be based on a
preponderance of the evidence. See United
States v. White, 240 F.3d 656, 660 (7th
Cir. 2001). The record fully justifies
the district court’s findings as to the
enhancement. In addition, the defendant
claims the most analogous offense to his
crime is failure to appear by a material
witness under 18 U.S.C. sec.
3146(b)(1)(B), which carries a one-year
maximum sentence. It is easily seen in
the context of this case that section is
not applicable.
The defendant further claims the
district court erred by refusing to
depart downward based on his torture by
Israeli security forces. This is not a
case where the court misapplied the
guidelines in violation of the law. See
United States v. Parolin, 239 F.3d 922,
928 (7th Cir. 2001) (holding that
questions of law relating to
interpretation of the guidelines are
reviewed de novo). It was a discretionary
decision of the district court not to
depart downward which leaves this court
without jurisdiction. There is no
suggestion that this experienced district
judge believed he could not depart
downward, or that the law did not permit
that possibility. In those instances, a
remand would be in order. See, e.g.,
United States v. Vahovick, 160 F.3d 395,
398-99 (7th Cir. 1998). There is
absolutely nothing in the record of this
case as it unfolded to suggest the
slightest reason for a downward
departure.
III. CONCLUSION
This unusual case was carefully handled
by the district judge. We find no error
and the case is affirmed in all respects.
AFFIRMED.
FOOTNOTES
/1 To place the charged violation in context, the
complete sec. 401 follows:
Sec. 401. Power of court
A court of the United States shall have power
to punish by fine or imprisonment, at its discre-
tion, such contempt of its authority, and none
other, as:
(1) Misbehavior of any person in its presence
or so near thereto as to obstruct the administra-
tion of justice;
(2) Misbehavior of any of its officers in their
official transactions;
(3) Disobedience or resistance to its lawful
writ, process, order, rule, decree, or command.
/2 Appellant’s brief in its Statement of Facts
contains only a procedural history of the case
contrary to Fed. R. App. P. 28(a).
/3 18 U.S.C. sec. 3501 sets forth the requirements
for determining the admissibility of confessions
and states that a confession will be admitted
only "if it is voluntarily given." 18 U.S.C. sec.
3501(a).
/4 18 U.S.C. sec. 3491, Foreign documents, provides
in full:
Any book, paper, statement, record, account,
writing, or other document, or any portion there-
of, of whatever character and in whatever form,
as well as any copy thereof equally with the
original, which is not in the United States
shall, when duly certified as provided in section
3494 of this title, be admissible in evidence in
any criminal action or proceeding in any court of
the United States if the court shall find, from
all the testimony taken with respect to such
foreign document pursuant to a commission execut-
ed under section 3492 of this title, that such
document (or the original thereof in case such
document is a copy) satisfies the authentication
requirements of the Federal Rules of Evidence,
unless in the event that the genuineness of such
document is denied, any party to such criminal
action or proceeding making such denial shall
establish to the satisfaction of the court that
such document is not genuine. Nothing contained
herein shall be deemed to require authentication
under the provisions of section 3494 of this
title of any such foreign documents which may
otherwise be properly authenticated by law.