United States v. Duraid Hussein ( 2022 )

FILED
NOT FOR PUBLICATION
AUG 30 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10181
Plaintiff-Appellee, D.C. No.
2:17-cr-01351-GMS-1
v.
DURAID HUSSEIN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Submitted August 12, 2022**
San Francisco, California
Before: RAWLINSON, BADE, and BRESS, Circuit Judges.
Duraid Hussein (Hussein) appeals his conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
also appeals the denial of his motions to dismiss the indictment, for a mistrial, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the denial of a defendant’s motion to dismiss an
indictment. United States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001). We
review for abuse of discretion the denial of a motion for a mistrial or for a new
trial. See United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008) (mistrial);
United States v. Chhun, 744 F.3d 1110, 1117 (9th Cir. 2014) (new trial).
1. Hussein challenges the district court’s denial of his motion to dismiss the
indictment as legally insufficient. He specifically maintains that he did not have a
prior conviction punishable by imprisonment for a term exceeding one year under
Arizona law because the state court suspended his sentence, and did not impose a
sentence exceeding one year. However, Hussein stipulated to having been
convicted of that felony. To the extent that Hussein’s stipulation did not invite
error, see United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994), as
amended, his argument fails on the merits.
At the time of his indictment, Hussein had a prior felony conviction for
aggravated assault. The offense carried a maximum sentence of 1.5 years under
Arizona law, and Hussein was sentenced to three years’ probation. See Ariz. Rev.
Stat. § 13-702(D) (class 6 felonies). “[W]hen considering whether a crime is
‘punishable’ by more than one year, [we] . . . examine both the elements and the
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sentencing factors” to decide whether the conviction “actually exposed” the
defendant to more than one year of imprisonment. United States v. McAdory, 935
F.3d 838, 843-44 (9th Cir. 2019) (citation omitted). Because Hussein’s crime of
conviction actually exposed him to a term of imprisonment that exceeded one year,
the district court correctly denied his motion to dismiss the indictment on this
basis. See Ariz. Rev. Stat. § 13-701(C), (D)(11); State v. Bonfiglio, 295 P.3d 948,
950 (Ariz. 2013) (en banc).
2. Hussein asserts that the district court violated his Sixth Amendment right
to a jury trial by not submitting the issue of his prior felony conviction to a jury.
This argument is foreclosed by our precedent. See Stokes v. Schriro, 465 F.3d 397,
401 n. 5 (9th Cir. 2006) (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury. . . .”) (citation and first alteration omitted) (emphasis in the
original).
3. Hussein contends that the district court plainly erred under Rehaif v.
United States, 139 S. Ct. 2191 (2019), by not requiring the government to prove
that Hussein knew he had a felony conviction. “Under plain-error review, [we]
may reverse only where there is an (1) error that is (2) plain, (3) affects substantial
rights, and (4) ‘seriously affects the fairness, integrity or public reputation of
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judicial proceedings. . . .’” United States v. Door, 996 F.3d 606, 618 (9th Cir.
2021) (citation omitted), cert. denied, 142 S. Ct. 785 (2022).
In assessing Rehaif contentions, we “consider whether evidence proved
beyond a reasonable doubt that Defendant had the knowledge required by Rehaif
and that any error was not prejudicial.” United States v. Pollard, 20 F.4th 1252,
1256 (9th Cir. 2021) (citation and internal quotation marks omitted).
We conclude that any Rehaif error was harmless in light of Hussein’s guilty
plea to aggravated assault and his stipulation that he had a prior felony conviction.
See id. at 1256-57 (observing that “absent any evidence suggesting ignorance, the
jury can infer that a defendant knew that he . . . was a convicted felon from the
mere existence of a felony conviction as evidenced by the defendant’s stipulation”)
(citation, alteration, and internal quotation marks omitted). Moreover, Hussein has
not shown that any error was prejudicial, as the record demonstrates that Hussein
knew he was a felon. See id. at 1256.
4. Hussein asserts that jurors may have seen a holding cell beyond the
doorway he used to enter the courtroom during trial. But “[b]ecause a jury’s brief
or inadvertent glimpse of a defendant in physical restraints is not inherently or
presumptively prejudicial to a defendant, [Hussein] must demonstrate actual
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prejudice to establish a constitutional violation.” United States v. Olano, 62 F.3d
1180, 1190 (9th Cir. 1995) (citations omitted).
Hussein failed to identify any evidence of prejudice. See id. He simply
argues that “four prospective jurors who might have seen that Hussein was in
custody were selected as trial jurors.” However, the district court asked the jurors
whether they observed anything that caused them concern about their ability to be
fair, and no juror responded in the affirmative. Further, the district court instructed
the jury that anything “seen or heard when the court was not in session [was] not
evidence” and that the jury must “decide the case solely on the evidence received
at trial.” See United States v. Reyes, 660 F.3d 454, 468 (9th Cir. 2011) (stating that
“jurors are presumed to follow the court’s instructions”) (citation omitted).
Accordingly, the district court did not abuse its discretion by denying Hussein’s
motions for a mistrial.
5. Finally, the district court did not abuse its discretion in declining to order
a new trial. Evidence of possible marijuana use by a government witness before
testifying was cumulative impeachment evidence, and would not likely have
resulted in acquittal had it been presented to the jury. See United States v. Holmes,
229 F.3d 782, 789 (9th Cir. 2000).
AFFIRMED.
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