United States v. Zakaria

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4266
MOHAMMED NAEEM ZAKARIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-95-366)
Submitted: March 11, 1997
Decided: March 28, 1997
Before MURNAGHAN, HAMILTON, and LUTTIG,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John A. Keats, LAW OFFICES OF JOHN A. KEATS, Fairfax, Vir-
ginia; Richard E. Gardiner, Fairfax, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Marcus J. Davis, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Mohammed Naeem Zakaria was convicted pursuant to a condi-
tional guilty plea of one count of delivery of firearms by a licensed
firearms dealer to a person known by the dealer to reside in another
state in violation of 18 U.S.C. § 922(b)(3) (1994) and 18 U.S.C.
§ 924(a)(1)(D) (1994). Zakaria raises three issues on appeal: (1) that
his statements to law enforcement officers during a warrant search of
his home should have been suppressed on the ground that probable
cause did not exist for issuing the warrant because the information
supplied to the magistrate was stale; (2) that the district court erred
by granting the Government's motion in limine preventing him from
presenting evidence as to his state of residence; and (3) that the dis-
trict court should have reduced his base offense level to six pursuant
to the sporting use/collection exception found in USSG § 2K2.1(b)(2).1
Finding no reversible error, we affirm.
On the evening of May 19, 1994, four semi-automatic pistols were
stolen from a hardware store/gun shop in Manassas, Virginia, by Peter
Swett ("Swett"). Shortly after committing the theft, Swett contacted
Zakaria, who Swett knew was federally licensed to sell firearms out
of his parents' home in Manassas.2 Later that evening, Zakaria met
Swett and his girlfriend, Heather Carter ("Carter"), at a local fast-food
restaurant. After lengthy negotiations, during which Swett informed
Zakaria that the pistols were stolen, Zakaria agreed to purchase three
of the pistols, and Zakaria placed the weapons in his car.
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2 Swett eventually told authorities that he contacted Zakaria because
Zakaria had previously told Swett that he (Zakaria) might be interested
in purchasing stolen firearms. Zakaria, who was taking college courses
at the time, lived with his parents.
2
Detective Brown ("Brown") of the Manassas City Police Depart-
ment investigated the theft. On July 13, 1994, Brown interviewed a
former store employee, Robert Stephens ("Stephens"), following a
failed polygraph examination regarding the theft. Stephens admitted
that he helped Swett plan the theft and that he knew Swett sold the
pistols to Zakaria. Brown also interviewed Carter and one of Ste-
phens' girlfriends, and both women corroborated the above facts.
Brown also interviewed Swett, who was in jail on an unrelated
charge. Swett initially denied having anything to do with the theft, but
he eventually admitted to stealing the pistols and selling three of them
to Zakaria.3
Based on the above information, a magistrate judge issued a search
warrant for Zakaria's and Swett's homes and cars on the evening of
July 14, 1994, and the warrants were executed that same night.
Zakaria consented to the search, but no weapons were found. Zakaria
agreed to speak to the officers outside, where he admitted purchasing
the stolen pistols and selling them to his cousin. Prior to making this
confession, Zakaria, though he was not in custody, was informed of
his rights by Brown and an ATF agent. Zakaria voluntarily agreed to
waive his rights and provided a written statement.
Zakaria was indicted on three counts of violating federal firearms
laws. Prior to trial, Zakaria filed a motion to suppress the confession
and written statement. Zakaria did not contest the voluntariness of the
confession. Rather, he argued that the confession was tainted by the
lack of probable cause for the search. The district court denied the
motion, and Zakaria's first trial ended in a hung jury. Prior to his sec-
ond trial, the Government filed a motion in limine to prevent Zakaria
from presenting evidence as to his state of residence. The district
court granted the motion, and Zakaria agreed to enter a conditional
plea of guilty to the illegal sale of firearms, reserving the right to
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3 Swett, who later agreed to cooperate with police, eventually told
Brown that Zakaria told him at the time of purchase that the pistols
would be out of the state by morning and that Zakaria planned on selling
the weapons to his cousin in Philadelphia, who knew how to circumvent
the customs laws in order to ship the firearms to Pakistan. The record,
however, shows that Swett did not convey this information to Brown
until some time after Zakaria's arrest.
3
appeal the denial of his motion to suppress and the granting of the
motion in limine.
Findings of fact made by a district court in ruling on a motion to
suppress are reviewed for clear error, but the ultimate suppression
decision is reviewed de novo. United States v. Rusher, 966 F.2d 868,
873 (4th Cir. 1992). In reviewing whether probable cause existed for
the issuance of the search warrant, "[g]reat deference is to be given
a magistrate's assessment of the facts," and the"inquiry is directed to
whether the magistrate had a substantial basis for his conclusion that
probable cause existed." United States v. Williams, 974 F.2d 480, 481
(4th Cir. 1992) (citations omitted). This court has adopted a standard
which "allows a magistrate to review the facts and circumstances as
a whole and make a common sense determination of whether ``there
is a fair probability that the contraband or evidence of a crime will be
found in a particular place.'" Id. (citing Illinois v. Gates, 462 U.S.
213, 238 (1983)).
Since we find that the information provided to the magistrate was
not stale, the district court did not err in denying Zakaria's motion to
suppress his voluntary confession and statement. The evidence sup-
ported the district court's finding that Swett did not tell Brown about
Zakaria's intentions to sell the weapons quickly during the initial
interview. Therefore, neither Brown nor the magistrate had reason to
believe that Zakaria had already sold them. Moreover, the passage of
time in itself is not necessarily dispositive. United States v. McCall,
740 F.2d 1331, 1336 (4th Cir. 1984) ("[P]robable cause cannot be
quantified by simply counting the number of days between the occur-
rence of the facts supplied and the issuance of the affidavit.") (citation
omitted). Absent any evidence to the contrary, it was reasonable for
the magistrate to assume that, even after two months, the pistols could
be found in Zakaria's car, where Carter saw him put them, or in his
home. See United States v. Anderson, 851 F.2d 727, 729 (4th Cir.
1988) (reasonable to assume individuals keep weapons in their
homes).
We also affirm the district court's decision to grant the Govern-
ment's motion in limine. This court will not disturb a district court's
evidentiary rulings absent a clear abuse of discretion. United States
4
v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992), and we find no such
abuse in the present case.
Zakaria wanted to present evidence as to his state of residence to
support his claim that he sold the firearms from his personal inventory
rather than from his business inventory. Under 18 U.S.C. § 922(a)(5)
(1994), a private individual may sell a personal firearm to another pri-
vate individual as long as both persons are residents of the same state.
Zakaria claimed that he and his cousin were both residents of Florida
because they possessed Florida driver's licenses.
We agree with the district court that Zakaria's sale to his cousin
was from his business inventory as a matter of law and that any evi-
dence concerning Zakaria's state of residence was immaterial. We
find that the district court reasonably interpreted 18 U.S.C. § 923(c)
(1994) and 27 C.F.R. § 178.125a (1996) to contain a default provision
which provides that the sale of firearms held for less than one year
which are not properly recorded pursuant to 27 C.F.R. § 178.125a(a),
regardless of how acquired, are to be considered to be from the licens-
ee's business inventory. Moreover, § 923(c) expressly states that "if
such disposition or any other acquisition is made for the purpose of
willfully evading the restrictions placed upon licensees by this chap-
ter, then such firearm shall be deemed part of such licensee's business
inventory." In the present case, substantial evidence was presented
showing that Zakaria willfully attempted to evade the firearms laws
by purchasing firearms which he knew were stolen with the intent to
sell them to someone who he knew would illegally transport the pis-
tols to Pakistan. Therefore, under the plain language of the statute, the
sale was from Zakaria's business inventory, and his state of residence
was immaterial.
Finally, we find that the district court properly calculated Zakaria's
base offense level. It was undisputed that the offense of conviction
was governed by USSG § 2K2.1(a)(7), which sets the base offense
level at 12.4 This court reviews"a question involving the legal inter-
pretation of Guidelines terminology and the application of that termi-
nology to a particular set of facts de novo," United States v. Wessells,
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4 "Subsection (a)(7) includes the interstate transportation or interstate
distribution of firearms." USSG § 2K2.1, comment. (n.8).
5
936 F.2d 165, 168 (4th Cir. 1991), but the determination as to the
underlying facts is reviewed for clear error. United States v.
Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). In the case of a pro-
posed reduction, the defendant bears the burden of showing that he
is entitled to the reduction. United States v. Urrego-Linares, 879 F.2d
1234, 1238-39 (4th Cir. 1989).
Since we find that Zakaria failed to present any evidence to support
his self-serving claim that he possessed the pistols for a sporting pur-
pose or for collection, we need not address the issue of whether the
exception found in USSG § 2K2.1(b)(2) applies to offenses of deliv-
ery as well as to those of possession. The Guidelines require that the
weapons are possessed solely for a lawful sporting purpose or collec-
tion. In the present case, there was substantial evidence showing that
Zakaria purchased the firearms with the sole intent of selling them to
his cousin for illegal export to Pakistan; not for placing them in his
private collection. Moreover, in determining whether or not to apply
the exception, the district court may look to the"circumstances of
possession." USSG § 2K2.1, comment. (n.10). In the present case,
Zakaria knowingly purchased stolen weapons with the intent to fur-
ther violate the firearms and customs laws of the United States. Thus,
under the plain language of USSG § 2K2.1(b)(2) and taking into
account the circumstances of possession, Zakaria was not entitled to
a reduction in his base offense level based on the sporting purpose/
collection exception.
We therefore affirm the findings and sentence of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
6