United States v. Muzammil Ali ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2286
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Muzammil Ali
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: May 13, 2022
Filed: August 30, 2022
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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SMITH, Chief Judge.
After a three-day trial, a jury convicted Muzammil Ali of conspiracy to
distribute tetrahydrocannabinol (THC), in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 846. Ali appeals, arguing that the district court1 (1) abused its
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
discretion by denying his motion for a continuance; (2) erred by admitting into
evidence portions of recordings of phone calls that Ali made from jail; (3) permitted
trial delays that violated Ali’s Sixth Amendment right to a speedy trial; and (4) erred
at sentencing by declining to vary downward. We affirm.
I. Background
A. Indictment and Continuances
On November 14, 2019, Muzammil Ali and five associates were indicted for
conspiracy to distribute THC. Joshua Hendrickson, the leader of the conspiracy,
bought vape pens from Hong Kong, THC from California and Nevada, and flavoring
from California; he had all of these materials shipped to his co-conspirators’
residences in Des Moines, Iowa, for assembly and distribution in the area. Ali, for his
part, received shipments and helped to assemble the components into the final
product, THC-filled vape pens, at his residence.
In late 2019, several of Ali’s co-conspirators were arrested. The district court
set their trial for July 13, 2020. Ali was arrested on February 18, 2020. At his
arraignment the following day, Ali, though aware of his rights, made no objection to
his trial date being the same as his co-defendants. A July 13, 2020 trial would trespass
the April 29 deadline under the Speedy Trial Act. The exchange was as follows:
THE COURT: . . . . [B]y our calculation, the Speedy Trial Act
deadline is April 29, but the co-defendants are set for trial for July 13.
So [does Ali have] any objection to going ahead and using the
July 13 trial date?
[Ali’s Counsel]: I’m sorry?
THE COURT: Is there any objection to going ahead to use the
July 13 trial date?
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[Ali’s Counsel]: No, Your Honor.
R. Doc. 318, at 4.
In May 2020, co-defendant Hendrickson moved to continue the trial date until
September. Ali initially objected to the continuance, but he later withdrew his
objection and joined Hendrickson’s motion along with several other co-defendants.
The district court granted the motion, “find[ing] that the ends of justice served by a
continuance outweigh the best interest of the public and Defendants in a speedy trial.”
R. Doc. 165, at 1. Trial was rescheduled for September 14, 2020.
In late July 2020, Ali moved pro se for his counsel to be replaced. The court
granted his request. A new attorney was appointed on August 4. The next day, Ali’s
new counsel was provided with all discovery material produced to date. Ali thereafter
moved for a continuance, stating that “the ends of justice served by granting this
continuance outweigh the best interest of the public and the defendant in a speedy
trial.” R. Doc. 272, at 1. He further acknowledged that the time between the motion
and the new trial date would be excluded from Speedy Trial Act calculations. See 18
U.S.C. § 3161. The court concurred and reset trial for October 19, 2020.
In late September 2020, Ali alleged that his speedy trial rights were being
violated and moved to dismiss the charge against him. The district court rejected Ali’s
motion because (1) “Ali [had] consented to the trial continuances,” (2) “the ends of
justice served by the continuances outweighed the best interest of the public[] and
. . . [of] Ali in a speedy trial,” and (3) the court’s issuance of a series of Public
Administrative Orders had postponed all jury trials until October 12, 2020, due to the
COVID-19 pandemic, “exclud[ing] the intervening time from consideration [in]
Speedy Trial Act calculations.” R. Doc. 319, at 1–2.
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In early October, the government requested that Ali’s trial be continued for two
months. In support of its motion, the government cited, among other things, the
following: (1) that the only co-conspirator who had not yet pleaded guilty had
recently become a fugitive, (2) the preference for co-conspirators to be tried jointly,
(3) the ongoing COVID-19 pandemic, and (4) the fact that a continuance would not
violate the Speedy Trial Act. Ali resisted the motion, indicating that he “wishe[d] to
proceed to trial.” R. Doc. 359, at 1. The court denied the government’s motion.
However, due to scheduling issues, the court pushed trial back three days, to October
22, 2020.
A few weeks later, the government reasserted its motion, asking for permission
to call a witness via two-way video or, in the alternative, for a continuance. In
addition to the reasons set forth in its initial motion, the government disclosed that
an essential witness was unavailable to appear in-person at trial due to personal
circumstances related to the COVID-19 pandemic.2 The court granted the continuance
“[f]or the reasons stated in the [g]overnment’s motion” and set trial for January 11,
2021. Id. at 1.
Five days before trial, on January 6, 2021, Ali sought a continuance until “a
time when C[OVID-19] vaccinations ha[d] been administered.” R. Doc. 457, at 2. Ali
argued that restrictions at the jail where he was detained rendered him “unable to
meet with his attorney in person on an unlimited basis to review discovery and
prepare for trial.” Id. at 1. In a pro se letter to the court, Ali added that neither he nor
his attorney was prepared for trial and that he needed additional time “to go over the
2
The court’s order noted that the witness’s “personal circumstances [we]re
extraordinary and compelling reasons supporting the [c]ourt’s finding that she [wa]s
unavailable for trial under 18 U.S.C. § 3161(h)(3)(B).” R. Doc. 378, at 1–2. The court
noted moreover that the unavailability of an essential witness meant that “the time
between the motion and new trial date [would be] excluded from Speedy Trial Act
calculations.” Id. at 1.
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discovery with [his attorney] face to face.” R. Doc. 460, at 1. A hearing was held the
next day. There, Ali’s attorney represented that he was prepared for trial and that he
was “familiar with all the evidence” but that Ali did not “believe [they were] prepared
for trial” because Ali had only recently shifted his focus from challenging his pre-trial
detention to trial matters. R. Doc. 573, at 6, 33.
The district court rejected Ali’s request for a continuance, noting Ali’s repeated
“insistence in October [2020] that any continuance would be a violation of his rights
and that he needed to go to trial in October despite pandemic circumstances.” Id. at
6. In the interim, said the court, the only change had been “a constriction of evidence
. . . to be presented at trial.” Id. at 5. And the restrictions on in-person communication
at the jail where Ali was incarcerated did not result in a due process violation or call
for a continuance, because Ali “ha[d] had adequate time to prepare for trial.” Id. at 25.
The court did not ignore Ali’s concerns about time for trial preparation. The
court scheduled the hearing early in the morning so that Ali and his attorney would
have the remainder of the day to work together at the courthouse where they would
not be subject to the jail’s COVID-19 restrictions. The court arranged for a private
room in which Ali and his attorney would be able to review discovery materials. The
court also permitted Ali and his attorney several hours the following day to work
together at the courthouse. Ali’s attorney stated to the court that he appreciated the
court “going way over the top to try to help us here,” and Ali acknowledged that the
court’s efforts had “addressed [his] concerns.” Id. at 28, 29.
B. Jail Calls
In the two days before trial, Ali placed multiple telephone calls to his former
girlfriend, Samantha Kendall, from his jail cell. Kendall lived with Ali during the time
when his co-conspirators used his residence as home base for their drug operation.
The government also called Kendall as a witness for the government at Ali’s trial.
Kendall answered only the first two calls she received from Ali.
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During his two recorded conversations with Kendall, Ali made several
statements that the government sought to introduce at trial. The government believed
the calls were attempts to influence her testimony or to persuade her not to testify at
all. In the first call, for example, Ali said:
[Y]ou want to help these people [the government], and you don’t know
what the f*ck they’re going to do to you? . . . [Y]ou know what the
f*ck’s going to happen? They don’t give a f*ck about you or anybody
else. You’re going to testify? That’s fine, do what you have to do. But
you do have to be careful. They will turn around and charge you too.
This is the federal government. You know the government doesn’t give
a f*ck.
R. Doc. 577, at 33 (second, third, fourth, sixth, seventh, and eighth alterations in
original). Ali said similar things in the second call. Specifically, Ali told Kendall that
she “made a big mistake all last year” and was “still making mistakes” by cooperating
with the government. Id. When she told him that she was not concerned about being
charged with a crime, he claimed that she was culpable in the criminal activity that
occurred at their residence.
At trial, the government offered into evidence two exhibits which contained
excerpts of the two recorded calls. The first exhibit contained nearly 9 minutes of the
first call, which was around 13 minutes in total, and the second contained 3 minutes
of the 20-minute second call.
Ali objected to the exhibits, arguing that the risk of unfair prejudice
substantially outweighed their probative value. Ali asked, in the alternative, that, if
the court admitted the exhibits, it would admit them in their entirety. The district
court overruled Ali’s objection. The court reasoned that portions of the calls were
“relevant to [Ali’s] attempt to influence [Kendall’s] testimony,” to “intimidate” her,
and to persuade her “to not testify about his involvement in this case.” R. Doc. 555,
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at 46. In addition, the court viewed such evidence as showing Ali’s “consciousness
of [his own] guilt.” Id. at 8.
To protect against unfair prejudice, the court also instructed the government
to excise certain statements, such as those concerning Ali’s potential punishment and
terms of plea negotiations. The court rejected Ali’s request that the entirety of the
calls be played. The court considered that most of the additional statements in the
recordings either constituted inadmissible hearsay or were irrelevant, unfairly
prejudicial, or potentially confusing to the jury. Before playing the recordings, the
court advised the jury that segments of the recorded calls had been “omitted because
the [c]ourt found that those portions were not relevant.” Id. at 79.
After a three-day trial, the jury convicted Ali of conspiracy to distribute THC.
The presentence report (PSR) attributed 46,167 grams of THC to Ali. THC is not
listed in the Sentencing Guidelines; however, it is referenced in the drug-equivalency
tables, where each gram of THC equates to 167 grams of “converted drug weight.”
U.S.S.G. § 2D1.1, cmt. n.8(D). The district court, based on the parties’ submissions
and the PSR’s findings, adopted the PSR recommendation that Ali was responsible
for 46,167 grams of THC, which, based upon the drug-equivalency tables, comes to
7,709 kilograms in converted drug weight. This calculation put Ali’s base offense
level at 32. See id. § 2D1.1(c)(4).
At sentencing, the court imposed two upward variances—one for
“maintain[ing] a premises for the purpose of . . . distributing a controlled substance”
pursuant to U.S.S.G. § 2D1.1(b)(12) and one for obstruction of justice in regard to
Ali’s jail calls to Kendall—for a total offense level of 36. As the statutory maximum
sentence was 20 years, Ali’s offense level, combined with a criminal history category
of III, established his advisory Guidelines range at 235 to 240 months’ imprisonment.
The court sentenced Ali to 235 months’ imprisonment.
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II. Discussion
A. Denial of Continuance
“We review the denial of a motion for continuance for abuse of discretion,
considering ‘the amount of time granted for preparation, the conduct of counsel at
trial, and whether prejudice appears from the record.’” United States v. Shafer, 608
F.3d 1056, 1066 (8th Cir. 2010) (quoting United States v. Parker, 587 F.3d 871, 879
(8th Cir. 2009)).
Ali argues that COVID-19 restrictions made preparation for trial difficult for
him. For instance, he had to confer with his attorney remotely by video conference
or at the jail on opposite sides of a plexiglass divider. Ali contends that “[w]hile this
did not make it impossible for [him] to prepare for trial, it did make it much more
time consuming.” Appellant’s Br. at 12. Because of these challenges, Ali argues, the
district court abused its discretion in denying his continuance, causing him to be
prejudiced by lack of time to prepare his defense.
Ali has not established that the court abused its discretion. The trial occurred
nearly a year after Ali’s arrest and arraignment. Ali replaced his attorney in August
of 2020, but he still had more than five months to prepare for trial with his trial
counsel’s assistance. Five months falls within a range found in cases where we
concluded that there was adequate time. In United States v. Bradshaw, we held seven
months to be sufficient time for a defendant to prepare for trial. 955 F.3d 699, 704
(8th Cir. 2020). Similarly, in United States v. Kelley, we concluded that there was
adequate time when a pro se defendant “had three months to prepare for trial with the
assistance of standby counsel.” 477 F. App’x 401, 402 (8th Cir. 2012) (unpublished
per curiam).
Both Ali’s attorney and Ali himself acknowledged that they were ready for
trial. Ali told the court in October 2020 that he wanted trial to be held that month. “In
light of [Ali’s] own request[] for an expeditious disposition, it was not an abuse of
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discretion for the district court to deny further continuances.” United States v. Jolivet,
224 F.3d 902, 906 (8th Cir. 2000). Ali’s attorney told the court at the continuance
motion hearing that he was “familiar with all the evidence” and prepared for trial.
R. Doc. 573, at 33. “In the face of the unequivocal and uncontradicted statement by
a responsible officer of the court that [Ali] was fully prepared and ‘ready’ for trial, it
was far from an abuse of discretion to deny a continuance.” Morris v. Slappy, 461
U.S. 1, 12 (1983).
Moreover, “the last-minute nature of [Ali’s] motion . . . undermine[d] the
[district] court’s interest in the orderly administration of justice.” Bradshaw, 955 F.3d
at 704. It was therefore appropriate for the court, presented with a continuance motion
days before trial, to proceed with its scheduled trial plans. See Morris, 461 U.S. at11–12. Finally, Ali does not point to any instances where lack of preparation harmed
his attorney’s trial performance. See Shafer, 608 F.3d at 1066 (factors for
consideration in appellate review).
We find no abuse of discretion.
B. Trial Delays
With respect to Ali’s claimed violation of his Sixth Amendment right to a
speedy trial, we review the district court’s findings of fact for clear error and its legal
conclusions de novo. United States v. Johnson, 990 F.3d 661, 666 (8th Cir. 2021).3
To decide whether this right has been violated, we consider “[(1) the] [l]ength of
delay, [(2)] the reason for the delay, [(3)] the defendant’s assertion of his right, and
[(4)] prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972); see also
3
Ali does not argue on appeal that the Speedy Trial Act was violated. See 18
U.S.C. § 3161(h)(3), (7). “It would be unusual to find the Sixth Amendment has been
violated when the Speedy Trial Act has not.” United States v. Titlbach, 339 F.3d 692,
699 (8th Cir. 2003).
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Johnson, 990 F.3d at 670. “Simply to trigger a speedy trial analysis, an accused must
allege that the interval between accusation and trial has crossed the threshold dividing
ordinary from ‘presumptively prejudicial’ delay.” Doggett v. United States, 505 U.S.
647, 651–52 (1992). “Where no presumptively prejudicial delay existed, we need not
examine the remaining three factors under Barker.” Titlbach, 339 F.3d at 699.
Ali claims that the delays in scheduling his trial amount to violations of his
right to a speedy trial under the Sixth Amendment. On these facts, we conclude that
Ali’s speedy trial right was not violated.
Fourteen months elapsed after Ali’s indictment before his trial. Normally, this
would be sufficient delay to give rise to a presumption of prejudice. See, e.g., id. (“A
delay approaching a year may meet the threshold for presumptively prejudicial delay
requiring application of the Barker factors”). But the delays in this case are not
attributable to the government as they resulted from delays requested by his co-
defendants or ordered by the court in which he acquiesced. This means that the
relevant period is between October 19, 2020, and January 11, 2021, the date Ali’s
trial began. This period of delay does not trigger presumptive prejudice. United States
v. Cooke, 853 F.3d 464, 472 (8th Cir. 2017) (holding 267-day period was not
presumptively prejudicial considering complexity of case and multiple requests for
continuances and withdrawal of counsel); Titlbach, 339 F.3d at 699 (holding 8-month
delay was not presumptively prejudicial “[g]iven the complexity of the conspiracy
and the length of trial”). Because Ali’s claim fails the first Barker factor, we need
proceed no further. See id.C. Admission of Jail Call Excerpts into Evidence
We review a trial court’s evidentiary rulings for abuse of discretion. United
States v. Bradley, 924 F.3d 476, 483 (8th Cir. 2019).
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Ali contends that the district court abused its discretion in admitting portions
of jail phone calls between Ali and his former girlfriend, arguing that “their probative
value was far outweighed by their prejudicial nature” in violation of Federal Rule of
Evidence 403. Appellant’s Br. at 14.
The district court’s decision to permit the introduction of the call excerpts was
not an abuse of discretion. The court found Ali’s statements to Kendall relevant as
attempts to intimidate Kendall and thus influence her testimony as well as probative
of his consciousness of guilt.
“[T]his court has consistently held that evidence of threats against witnesses
are generally admissible, even if prejudicial.” United States v. Skarda, 845 F.3d 370,
378 (8th Cir. 2016). For example, in United States v. Montano-Gudino, we upheld the
trial court’s admission of a tape recording of a co-conspirator’s phone call threatening
to harm the children of a witness under Federal Rule of Evidence 801(d)(2)(E)
(statement of co-conspirator in furtherance of the conspiracy is not hearsay),
observing that the call “was relevant to show the conspirators’ consciousness of guilt”
and evidence of the defendant’s participation in the conspiracy. 309 F.3d 501, 505
(8th Cir. 2002). We observed that while such a “chilling threat may have been
prejudicial,” it was not unfairly or unduly so. Id. (citing Fed. R. Evid. 403). Similarly,
Ali’s statements to Kendall evince a clear intent to dissuade her from testifying
against him. The district court was within its discretion to admit this evidence to show
Ali’s consciousness of guilt. See Skarda, 845 F.3d at 378; Montano-Gudino, 309 F.3d
at 505.
Ali further argues that, assuming the court did not abuse its discretion in
admitting the excerpts, the recordings should have been admitted in their entirety:
Had the full recordings been played, the jury would have had the
opportunity to examine the context in which Ali’s statements were
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made, and could have reasonably concluded that the “threats” were
instead intended to be warnings that the [g]overnment could still
prosecute Kendall for her role in the conspiracy.
Appellant’s Br. at 15.
Federal Rule of Evidence 106 provides:
If a party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought
to be considered at the same time.
Fed. R. Evid. 106. Rule 106 “operates to ensure fairness where a misunderstanding
or distortion created by the other party can only be averted by the introduction of the
full text of the out-of-court statement.” United States v. Ramos-Caraballo, 375 F.3d
797, 803 (8th Cir. 2004) (internal quotation marks omitted).
While in some cases Rule 106 may require that all or portions of a series
of recorded conversations be played to avoid misleading the jury, the
party urging admission of an excluded conversation must specify the
portion of the testimony that is relevant to the issue at trial and that
qualifies or explains portions already admitted. In addition, the district
court has broad discretion to conduct the trial in an orderly and efficient
manner, and to choose among reasonable evidentiary alternatives to
satisfy the rule of completeness reflected in Rule 106.
United States v. King, 351 F.3d 859, 866 (8th Cir. 2003) (cleaned up). Moreover, the
Rule “does not empower a court to admit unrelated hearsay in the interest of fairness
and completeness when that hearsay does not come within a defined hearsay
exception.” Ramos-Caraballo, 375 F.3d at 803 (cleaned up).
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In denying Ali’s Rule 106 request, the court found that the remainder of the
recordings contained statements that were hearsay, unfairly prejudicial, irrelevant, or
potentially confusing. See id.; King, 351 F.3d at 866. In so doing, it exercised its
“broad discretion . . . to choose among reasonable evidentiary alternatives to satisfy
the rule of completeness.” United States v. Mohamed, 727 F.3d 832, 837 (8th Cir.
2013) (internal quotation marks omitted).
In his reply brief, Ali argues that the “edited portions [of the recordings]
eliminated friendly conversation about the welfare of Ali and Ms. Kendall’s child,
something not consistent with making threats to Kendall.” Appellant’s Reply Br. at
5. Of course, the government also edited out portions in which Ali referred to his
prior abuse of Kendall. R. Doc. 555, at 6 (“From 4 minutes to 4 minutes and 5
seconds, we have muted the clip because the defendant talks about his abuse of Ms.
Kendall.”). Admitting the recordings in their entirety would mean that the jury would
have heard such prejudicial material. If the discussion of their son “qualifies or
explains” Ali’s apparent threats, then the admission of statements about his violent
behavior toward Kendall would certainly do so as well. King, 351 F.3d at 866. Ali has
not met his burden to show either the relevance or the explanatory value of such
statements. Id. (“[T]he party urging admission of an excluded conversation must
specify the portion of the testimony that is relevant to the issue at trial and that
qualifies or explains portions already admitted.” (internal quotation marks omitted)).
To the extent that the continued conversation added context to Ali’s admitted
statements, it was within the court’s “substantial evidentiary discretion” to exclude
the remainder of the conversation. United States v. Cross, 888 F.3d 985, 990 (8th Cir.
2018). We find no abuse of discretion.
D. Failure to Vary Downward
We review the district court’s application of the Sentencing Guidelines de novo
and its factual findings for clear error. United States v. Anwar, 880 F.3d 958, 971 (8th
Cir. 2018).
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Ali argues that the district court erred by failing to vary downward from the
advisory Guidelines range based on a policy disagreement with the Guidelines’ 1:167
drug-weight ratio for THC. Ali does not contest the court’s calculation of his drug
quantity based on the 1:167 ratio, and he admits that the court did not clearly err “in
applying the 1:167 ratio.” Appellant’s Br. at 18 (citing United States v. Ramos, 814
F.3d 910, 920 (8th Cir. 2016)). He argues instead that the Guidelines are advisory, not
mandatory, and that, since THC is not listed in the Guidelines, the court erred by
failing to exercise its discretion to vary downward.
Ali’s argument relies on Kimbrough v. United States, 552 U.S. 85 (2007), and
its progeny. In Kimbrough, the United States Supreme Court held that district courts
may grant downward variances from the Guidelines range based on a disagreement
with the sentencing disparity between crack and powder cocaine. Id. at 108–10.
Ali’s reliance on Kimbrough is misplaced. The language of Kimbrough imparts
permissive authority to courts to grant downward variances. See United States v.
Sharkey, 895 F.3d 1077, 1082 (8th Cir. 2018). It does not require them to do so. The
district court chose not to do so. As this decision was within the court’s reasonable
exercise of discretion, Ali’s claim of error fails.
III. Conclusion
Accordingly, we affirm the district court.
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