United States v. Said

Case: 21-10588 Document: 00516608746 Page: 1 Date Filed: 01/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 12, 2023
No. 21-10588 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yassein Abdulfatah Said,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-292-2
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Per Curiam:*
Yassein Abdulfatah Said (“Yassein”) 1 was charged with three crimes
stemming from his efforts to help his brother, Yaser Said (“Yaser”), evade
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
To avoid confusion, this opinion will refer to Yassein and his relatives by their
first names.
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arrest on a federal charge of unlawful flight to avoid prosecution. 2 A jury
convicted Yassein on all three counts: (1) Conspiring to conceal a person
from arrest in violation of 18 U.S.C. §§ 371 and 1071, (2) concealing a person
from arrest (and aiding and abetting the same) in violation of 18 U.S.C. §§
1071 and 2, and (3) conspiring to obstruct an official proceeding in violation
of 18 U.S.C. §§ 1512(k) and 1512(c)(2). The district court eventually
sentenced Yassein to an above-guidelines sentence of 144 months of
imprisonment and two years of supervised release.
On appeal, Yassein contends that (1) the evidence was insufficient to
support his conviction for conspiracy to obstruct an official proceeding, and
(2) his above-guidelines sentence was procedurally and substantively
unreasonable. He also claims that the district court erred by allowing hearsay
testimony, although he concedes that the error does not merit reversal. 3 We
affirm.
I. Background
On New Year’s Day 2008, Yaser murdered his teenage daughters
because he was upset by their dating American men. On January 2, 2008,
Yaser was charged in state court with two counts of Capital Murder and
warrants were issued for his arrest. On August 21, 2008, he was charged in
federal court with Unlawful Flight to Avoid Prosecution, and a federal arrest
warrant issued. In December of 2014, Yaser was added to the FBI’s Top Ten
Most Wanted Fugitives list.
2
Yaser was indicted in Texas state court for capital murder arising from the deaths
of his two teenage daughters.
3
Yassein’s opening brief also raised a multiplicity challenge to Counts 1 and 3, but
he has since withdrawn that challenge.
2
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FBI agents first interviewed Yassein in April 2009. He claimed that he
had last seen Yaser two days prior to the murders. Yassein claimed that his
nieces’ boyfriends had threatened Yaser and that those men were responsible
for their deaths. Yassein also acknowledged that he had traveled to Dallas,
picked up Yaser’s son, Islam, and sent him to Egypt. 4
Yassein and his family relocated to the Dallas/Fort Worth area in
2014. On September 23 of that year, FBI agents interviewed Yassein at his
home. During the interview, Yassein complained at length about the FBI and
its investigation, claiming it was causing problems for his family.
In 2017, the FBI acted on a tip from a maintenance man and
determined that Yaser had been staying in Islam’s apartment. But Yaser was
able to flee hours before the FBI arrived. After the building issued a 24-hour
notice to vacate the premises, Yassein took responsibility for the unit, argued
with the property manager, and eventually cleared the apartment with a
family member.
In August 2020, the FBI was able to track Yaser to a home in Justin,
Texas, owned by Yassein, albeit in one of his daughter’s names. After
observing Yassein and Islam carrying trash away from the Justin home over
the course of several days, the FBI moved in, capturing Yaser and eventually
arresting Yassein and Islam.
II. Charges and Trial
In November 2020, Yassein and Islam were charged by way of a three-
count superseding indictment. Count 1 alleged that, between August 2017
and August 2020, Yassein and Islam conspired to conceal Yaser from arrest,
4
Islam would return to the United States in 2011, moving into a Bedford, Texas
apartment.
3
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in violation of 18 U.S.C. §§ 371 and 1071. Count 2 alleged that Yassein and
Islam concealed Yaser (and aided and abetted Yaser’s concealment), in
violation of 18 U.S.C. §§ 1071 and 2. Count 3 alleged that Yassein and Islam
conspired to corruptly impede an official federal proceeding, in violation of
18 U.S.C. §§ 1512(k) and 1512(c)(2). On February 1, 2021, a jury found
Yassein guilty on all three counts.
III. Sentencing
The district court calculated Yassein’s total offense level as 17 and his
criminal history category as I. Those calculations yielded a guideline
imprisonment range of 24 to 30 months, a supervised release range of one to
three years, and a fine range of $10,000 to $50,000. The district court
ultimately varied upwards, imposing a total sentence of 144 months
imprisonment, two years of supervised release, three special assessments of
$100 each, but no fine. Yassein timely appealed. 5
IV. Standard of Review
When considering a challenge to the sufficiency of the evidence
supporting a conviction, we typically “review[] the record to determine
whether, considering the evidence and all reasonable inferences in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” 6 But when,
as in this case, a defendant fails to preserve his sufficiency challenge, 7 we
5
The record does not include a copy of Yassein’s notice of appeal, but an entry for
it appears on the district court’s docket sheet.
6
United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
7
Yassein moved for a judgment of acquittal at the end of the government’s case-
in-chief, but he did not renew his motion at the close of all the evidence. This omission
4
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“apply plain-error review.” 8 To succeed notwithstanding this difficult
standard, Yassein must show a clear or obvious error affecting his substantial
rights. 9 We will only correct such an error if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” 10 A sufficiency
challenge will only be deemed clear or obvious if there was “‘a manifest
miscarriage of justice,’ which occurs only [when] ‘the record is devoid of
evidence pointing to guilt’ or the evidence is so tenuous that a conviction
would be ‘shocking.’” 11
A challenge to the reasonableness of a sentence is typically reviewed
for abuse of discretion. 12 However, an unpreserved claim of procedural
unreasonableness is reviewed for plain error. 13
“Any error in admitting . . . evidence is subject to harmless error
review.” 14 “Unless there is a reasonable possibility that the improperly
admitted evidence contributed to the conviction, reversal is not required.” 15
means his sufficiency challenge is unpreserved. United States v. Smith, 878 F.3d 498, 502–
03 (5th Cir. 2017).
8
Smith, 878 F.3d at 503.
9
Id.10
Id. (internal quotation marks, brackets, and citation omitted).
11
Id. (quoting United States v. Delgado, 672 F.3d 320, 329–31 (5th Cir. 2012) (en
banc) (citations omitted)).
12
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Hernandez, 633 F.3d
370, 375 (5th Cir. 2011) (applying that standard to claims of both procedural and substantive
unreasonableness).
13
See United States v. Castillo-Rubio, 34 F.4th 404, 411 (5th Cir. 2022); United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
14
United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003) (citing United
States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992)).
15
Id. (quoting Williams, 957 F.2d at 1242) (cleaned up).
5
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V. Discussion and Analysis
On appeal, Yassein challenges (1) the sufficiency of the evidence
supporting his conviction on Count 3, (2) the procedural and substantive
reasonableness of his sentence, and (3) the district court’s resolution of
particular evidentiary objections at trial, even though, as noted, he concedes
that the third challenge cannot succeed. We address each challenge in turn.
A. Conviction
1. Sufficiency of the Evidence
Yassein contests the sufficiency of the evidence supporting his
conviction for conspiring to obstruct justice, in violation of
18 U.S.C. §§ 1512(k) and (c)(2). He contends that “the evidence [does] not
show that [he] knowingly and dishonestly, with the specific intent to subvert
or undermine the due administration of justice[,] mislead agents in their
search for Yaser.”
As noted, we review this contention for plain error. 16 We conclude
that there is more than enough evidence to affirm the conviction under that
standard.
Count Three charged Yassein with a conspiracy in violation of
18 U.S.C. § 1512(k), the object of which was obstruction of justice in violation
of 18 U.S.C. § 1512(c)(2). Albeit in unpublished opinions, we have previously
identified the elements of a § 1512(k) conspiracy as: (1) an agreement
between the defendant and at least one other person to pursue the object of
the conspiracy, (2) the defendant’s knowledge of the unlawful purpose of the
16
See Smith, 878 F.3d at 502–03.
6
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agreement, and (3) that an overt act was taken by one of the conspirators
toward carrying out the object of the conspiracy. 17
Conspiracy to commit a particular substantive offense requires the
degree of criminal intent necessary to commit the substantive offense itself.18
18 U.S.C. § 1512(c)(2) criminalizes the act of “corruptly . . . obstruct[ing],
influenc[ing], or imped[ing] any official proceeding.” Therefore, the
government must also demonstrate that Yassein acted ‘corruptly.’ A
defendant “acts ‘corruptly’ under the statute when [he] act[s] ‘knowingly
and dishonestly, with specific intent to subvert or undermine the due
administration of justice.’” 19
Yassein contends that the government must also demonstrate that he
knew the proceeding he was disrupting was a federal investigation—as
opposed to any official proceeding—because the indictment charged him
with doing so. He acknowledges, however, that “[t]his Court and the
Supreme Court have not answered whether a sufficiency challenge ‘must be
judged by reference to the elements charged in the indictment, even if the
17
United States v. Mitchell, 792 F.3d 581, 583 (5th Cir. 2015) (per curiam); United
States v. Coppin, 569 F. App’x 326, 332 (5th Cir. 2014) (per curiam) (citing United States v.
Porter, 542 F.3d 1088, 1092 (5th Cir. 2008)).
We recognize that our previous interpretations of § 1512(k) may be at odds with
the Supreme Court’s conclusions that a number of similarly-worded statutes do not contain
an overt-act requirement. See, e.g., Whitfield v. United States, 543 U.S. 209, 214 (2005)
(gathering cases and explaining the relevant analysis). However, Yassein does not dispute
the sufficiency of the evidence of an overt act, so we will leave this question for another
day.
18
Fifth Cir. Pattern Jury Instructions, § 2.15(A), note (2019 ed.)
(addressing conspiracies charged under 18 U.S.C. § 371); see Coppin, 569 F. App’x at 331–
33 (addressing a § 1512(k) conspiracy).
19
United States v. Delgado, 984 F.3d 435, 452 (5th Cir. 2021) (quoting Coppin, 569
F. App’x at 334).
7
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indictment charges one or more elements not required by statute.’”
Musacchio “abrogated Fifth Circuit precedent to the extent it provided that
‘erroneously heightened jury instructions generally become the binding “law
of the case” on appeal.’” 20 As Yassein notes, however, both Musacchio and
Bedoy explicitly left open the question whether an ‘erroneously heightened’
indictment obligates the government to prove additional elements. 21 We
decline to resolve this issue today and instead accept Yassein’s contention
arguendo.
Yassein’s challenge apparently incorporates two theories. First, as
noted above, Yassein suggests that he was unaware of the investigation’s
federal nature. Second, he claims that there is no evidence that he acted
corruptly. We reject both claims.
First, the record is not devoid of evidence that Yassein was aware that
the hunt for Yaser included a federal investigation. On the contrary, it
contains ample evidence to support the jury’s verdict. As Yassein
acknowledges in his brief, “the evidence established that [Laurie Gibbs, an
FBI agent] spoke with him and told him that [she had] a federal warrant for
Yaser’s arrest.” 22 This interview occurred in 2014, six years after the FBI
first obtained a warrant and listed Yaser, and three years before the beginning
of the timeframe for the conspiracy charged in Count Three of the
superseding indictment. Agent Gibbs testified that, during the interview, she
20
United States v. Bedoy, 827 F.3d 495, 508–09 (5th Cir. 2016) (quoting Musacchio,
577 U.S. at 243).
21
Musacchio, 577 U.S. at 244 n.2; Bedoy, 827 F.3d at 509.
22
Yassein describes the agent as an investigator with “the Collin County District
Attorney’s Office.” Gibbs was an FBI agent at the time she interviewed Yassein; she
transitioned to the District Attorney’s Office months later. Regardless, Yassein
acknowledges that one of the investigators present during the interview, Mario Verna, was
an FBI agent.
8
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“presented [her FBI] credentials and told him who I was and who the other
two individuals were that were with [her] and the purpose of . . . the
interview.” Record evidence also indicates that Yassein knew his name was
on FBI posters identifying his brother as a fugitive. The government
introduced the two posters into evidence at trial and both identified Yassein’s
name as one of Yaser’s potential aliases. The government also introduced at
trial a notebook containing a draft of a note addressed to the FBI, purportedly
authored by Yassein. That document identifies one of Yaser’s wanted
posters by its NCIC number. A testifying FBI agent described the number as
“quite specific” to the poster and warrant associated with it, and explained
that a person “generally speaking, would not know that number unless” they
read the poster. This evidence is more than enough to satisfy the very high
“manifest miscarriage of justice” standard that is appropriate here.
Yassein’s second claim is that the record is devoid of evidence that he
acted corruptly. As noted, a defendant “acts ‘corruptly’ under the statute
when [he] act[s] ‘knowingly and dishonestly, with specific intent to subvert
or undermine the due administration of justice.’” 23 Yassein cites the Black’s
Law Dictionary definition of dishonest as “not involving straightforward
dealing; discreditable; underhanded; or fraudulent.” He goes on to contend
that: “To claim that building a secret room or a ‘spider hole’ is ‘not
straightforward dealing[,]’ is ‘discreditable[,]’ is ‘underhanded[,]’ is
‘fraudulent[,]’ or is ‘characterized by lack of truth, honesty, or
trustworthiness’ is to misapply the word ‘dishonest.’” Yassein offers no
precedent, however, to support his position. Neither does he develop his
claim further by explaining why those definitions cannot be applied to his
conduct. The best theory that may be inferred from Yassein’s briefing is that
23
Delgado, 984 F.3d at 452 (quoting Coppin, 569 F. App’x at 334).
9
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a defendant cannot act dishonestly without lying or making a misleading
statement.
Yassein offers no reason for us to think that the jury’s verdict was a
“manifest miscarriage of justice” in this respect. That alone is enough to
doom his claim. But even if we were to interpret Yassein’s briefing as
proposing a misleading-statement requirement, this court has previously
affirmed § 1512(c)(2) convictions without relying on a lie or omission made
directly to an official. In Delgado, for example, this court held that the
evidence supported a jury’s verdict that a defendant acted corruptly when,
“after learning that he might be the target of a federal investigation involving
the sale of firewood, he sent [his co-conspirator] a text message stating that
he needed to return” a bribe in an effort to hide his tracks. 24
This court held similarly in Bedoy when it rejected a defendant’s
argument that he had not acted corruptly by instructing a co-conspirator “not
to let the FBI into her apartment to talk to her” because a rational jury could
infer that he was “instructing her to lie about the illicit aspects of their
relationship if asked.” 25
Yassein has not identified any error, let alone a plain one. We
therefore reject his sufficiency challenge.
2. Evidentiary Objections
Yassein also claims “that the district court erred in overruling [his]
attorney’s objections to hearsay.” We need not delve into the merits of this
claim, however, because he concedes that he “cannot argue that the errors .
24
Id.
25
827 F.3d at 510.
10
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. . cause ‘harm’ sufficient to justify reversal.” This concession is
dispositive. 26 We therefore affirm Yassein’s conviction.
B. Sentence
Yassein also challenges his sentence, claiming that it is both
procedurally and substantively unreasonable. As noted, the district court
calculated that the Sentencing Guidelines yielded an advisory guidelines
range of 24 to 30 months of imprisonment. The government moved for an
upward variance, and the district court ultimately varied upwards,
sentencing Yassein to a term of 144 months of imprisonment and two years
of supervised release.
Our “inquiry [into the reasonableness of a sentence] involves two
steps.” 27 “First, we must ‘ensure that the district court committed no
significant procedural error.’” 28 “Second, if the district court’s sentencing
decision is procedurally sound, we ‘consider the substantive reasonableness
of the sentence imposed.’” 29
1. Procedural Reasonableness
As an initial matter, we review the procedural reasonableness of
Yassein’s sentence for plain error. Yassein claims that an abuse-of-discretion
standard is appropriate. But, as the government points out, Yassein only
objected to the substantive reasonableness of his sentence at his sentencing
26
See Mendoza-Medina, 346 F.3d at 127 (citing United States v. Williams, 957 F.2d
1238, 1242 (5th Cir. 1992)).
27
United States v. Fraga, 704 F.3d 432, 437 (5th Cir. 2013).
28
Id. (quoting Gall, 552 U.S. at 51).
29
Id.11
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hearing. An objection to the substantive reasonableness of a sentence does
not, without more, preserve a claim of procedural unreasonableness. 30
Yassein claims that his sentence was procedurally unreasonable
because the district court failed to explain adequately its reasons for varying
upwards from the guidelines sentence it had calculated. He concedes that the
district court “provided some reasons to justify the upwards variance,” but
nonetheless contends that the reasons were not “sufficient to justify the
increase [in months of imprisonment] of 480 percent to 600 percent.” He
claims that such reasons were inadequate to meet the “high standard”
required for such a large upwards variance. Yassein also attacks portions of
the district court’s reasoning as a litany of “rote statements” too vague to
facilitate meaningful review. And Yassein also claims that the district court’s
statement that it had balanced his health and age against the other factors it
had considered was too vague to allow for meaningful appellate review.
As noted, plain-error review requires a defendant to explain how the
relevant error affected his substantial rights. 31 Therefore, when claiming that
the inadequacy of a district court’s explanation of its sentence constitutes
plain error, a defendant must demonstrate “that there is a reasonable
probability that, but for the district court’s failure to explain the sentence
adequately, [he] would have received a lesser sentence.” 32
30
Mondragon-Santiago, 564 F.3d at 361; see, e.g., United States v. Martinez, 872 F.3d
293, 303 (5th Cir. 2017) (similar).
31
See, e.g., Smith, 878 F.3d at 503.
32
United States v. Jackson, 594 F. App’x 232, 236 (5th Cir. 2014) (citing
Mondragon-Santiago, 564 F.3d at 364–65) (per curiam); see Mondragon-Santiago, 564 F.3d
at 365 (affirming sentence despite finding district court’s explanation of its sentence
inadequate because defendant failed to “show that an explanation would have changed his
sentence”).
12
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Yassein does not suggest that his sentence might have been different
had the district court adequately explained its sentence. Neither does he
reply to the government’s brief noting this requirement. These failures—
combined with the reality that the record is entirely devoid of any indication
that further explanation would have led the district court to a different
sentencing decision—doom Yassein’s claim.
2. Substantive Reasonableness
We turn next to Yassein’s claim of substantive unreasonableness.
This claim is properly preserved, so we review the substantive nature of the
district court’s sentence for an abuse of discretion. While it is undeniable that
the district court imposed a significant upward variance, we see no abuse of
discretion in its decision to do so.
“Appellate review of the substantive reasonableness of a sentence is
highly deferential.” 33 “To determine whether a sentence
is substantively reasonable, a district court should consider ‘the totality of
the circumstances, including the extent of any variance from the Guidelines
range.’” 34 “Even a significant variance from the Guidelines does not
constitute an abuse of discretion if it is ‘commensurate with the
individualized, case-specific reasons provided by the district court.’” 35
Instead, “[a] non-Guidelines sentence unreasonably fails to reflect the
statutory sentencing factors set forth in § 3553(a) where it (1) does not
account for a factor that should have received significant weight, (2) gives
33
United States v. Hudgens, 4 F.4th 352, 358 (5th Cir. 2021) (cleaned up) (quoting
United States v. Hoffman, 901 F.3d 523, 554 (5th Cir. 2018)).
34
Id. (quoting Gall, 552 U.S. at 51).
35
United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (quoting United States v.
McElwee, 646 F.3d 328, 338 (5th Cir. 2011)).
13
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significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” 36
Yassein offers a few attacks to the district court’s sentencing decision,
but none are compelling. He first contends that the district court erred by
taking into account the fact that “Texas sought Yaser for capital murder”
without conducting an individualized assessment whether “Yaser was a
continuing threat to the public.” He claims that this led the district court to
make “the erroneous though understandable conclusion that a fugitive
charged with Capital Murder is necessarily a greater threat to society than a
fugitive charged with a financial crime or other ‘white collar’ offense.” He
suggests that “the balancing factor should be risk to the public and not the
alleged offense.”
First, there is no indication in the record that the court made such a
sweeping conclusion about the nature of Capital Murder and white-collar
crime. The court merely indicated that it took into account the fact that Yaser
“was wanted for the double murder of two teenaged girls on a capital murder
charge.” More importantly, that fact goes to the nature of Yassein’s offense,
which the district court was obligated to consider. 37
Yassein next suggests that his use of antisemitic slurs, while
“indefensible,” cannot be the “basis for a 480 to 600 percent variance.”
Yassein does not contend, however, that the district court could not consider
his use of such slurs at all—or that they were the sole justification for the
upwards variance. This claim is similarly unavailing. After noting a number
of other facts it had considered, the district court explained that it took “into
account the slurs that the defendant used during [the] investigation[,] which
36
Id. (citing Smith, 440 F.3d at 708).
37
18 U.S.C. § 3553(a)(1).
14
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[it] believe[d] were used as an attempt to divert attention away from
[Yassein’s] actions.” This too goes to the nature of the offense.
Finally, Yassein takes issue with the district court’s focus on the
resources expended during the hunt for Yaser, particularly in Egypt. 38 He
does not challenge the district court’s factual findings, but claims the record
suggests that the government’s expenditures were “hardly different than
the[y would have been had they been investigating a] much more common
escape to Mexico or Canada.” Assuming arguendo that this factual summary
is correct, however, Yassein offers no reason whatsoever to question the
district court’s judgment on this point.
The upward variance applied in this case is undeniably significant. But
sentencing is the province of the district court, and Yassein has not identified
any error of the sort we enumerated in Diehl. And, we recently affirmed an
upward variance of a similarly significant magnitude imposed on Yassein’s
co-defendant, Islam, in United States v. Said, No. 21-10455, 2022 WL
3097848, at *4 (5th Cir. Aug. 3, 2022) (unpublished). 39 “Although the degree
of the variance is considerable and this court may have weighed the Section
3553(a) favors differently, we are not permitted to reweigh the factors.” 40
* * *
AFFIRMED.
38
Yassein suggested to investigators in 2014 that the family had ties there.
39
In Said, we affirmed the district court’s upward variance from a 21- to 27-month
guideline range to a 120-month sentence.
40
Id. (citing United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)).
15