United States v. Anwari , 393 F. App'x 54 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4868
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMMED MUNIR ANWARI, a/k/a Mohammed Munir, a/k/a Khalifa,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cr-00425-CMH-7)
Submitted: July 26, 2010 Decided: August 19, 2010
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gregory Todd Hunter, Arlington, Virginia; Maria N. Lerner,
Kimberly S. Walker, Fatema K. Merchant, FULBRIGHT & JAWORSKI,
L.L.P., Washington, D.C., for Appellant. Dana J. Boente, United
States Attorney, Lawrence J. Leiser, Assistant United States
Attorney, Robert Draba, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammed Munir Anwari appeals his conviction and 151-
month sentence for one count of conspiracy to import and
distribute for the purpose of importation one kilogram or more
of heroin in violation of 21 U.S.C. §§ 952(a), 959, 963, and
960(b)(1)(A) (2006) and one count of conspiracy to possess with
intent to distribute and to distribute one kilogram or more of
heroin in violation of 21 U.S.C. § 846 (2006). On appeal,
Anwari alleges district court error in: (1) allowing a fatal
variance from the indictment; (2) admitting evidence that was
substantially more prejudicial than probative; (3) refusing to
direct a verdict of acquittal, and (4) miscalculating the drug
weights attributable to him. For the reasons that follow, we
affirm.
I. Indictment Variance
The indictment against Anwari and his co-conspirators
alleged that Anwari was involved in heroin transactions in May
and August, 2002. At trial, the Government introduced evidence
of Anwari’s participation in a third transaction, in December
2002. Anwari asserts that allowing evidence of this third
transaction was erroneous and should result in vacating of his
conviction.
2
As Anwari did not object below, we review this claim
for plain error. To demonstrate plain error, a defendant must
show that: (1) there was an error; (2) the error was plain; and
(3) the error affected his “substantial rights,” meaning that it
“affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993). This court is
not required to correct a plain error unless “a miscarriage of
justice would otherwise result,” meaning that “the error
seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 736 (alteration in
original) (internal quotation marks omitted).
A variance occurs when the evidence presented at trial
differs materially from the facts alleged in the indictment.
United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).
However, a variance “does not violate a defendant’s
constitutional rights unless it prejudices [him] either by
surprising him at trial and hindering the preparation of his
defense or by exposing him to the danger of a second prosecution
for the same offense.” United States v. Randall, 171 F.3d 195,
203 (4th Cir. 1999) (when evidence does not alter crime alleged
in the indictment, the variance is not fatal).
We need not, however, reach the issue of whether an
indictment variance took place in this case. The evidence
against Anwari with regard to the first two transactions was
3
significantly compelling such that Anwari can demonstrate no
prejudice as a result of the introduction of evidence of the
third transaction, particularly under plain error review.
II. Allegedly Unduly Prejudicial Evidence
(a) Religious Questioning
At the start of the Government’s cross-examination of
Anwari, the following exchange took place:
The Government: Mr. Munir, you swore on the Bible.
Are you a Christian?
Anwari: I’m Islam, but I speak a lot of the Bible
too.
The Government did not make any further mention of Anwari’s
religion. On appeal, Anwari argues that this question was so
prejudicial as to necessitate a new trial. We disagree.
Again, this issue is reviewed for plain error, as no
objection was made below. Under that standard, we cannot find
that the Government’s question requires reversal. It is well-
settled that evidence of a witness’s religion may not be
introduced for the purposes of enhancing or attacking the
witness’s credibility. See Fed. R. Evid. 610. The Government
argues, however, that the question at issue was designed to
ensure that Anwari took his oath seriously, not to impeach his
credibility per se.
4
Though this court has never squarely addressed the
issue of whether a witness may be examined on the manner and
veracity of his oath, at least one of our sister circuits has
passed on a similar question. See United States v. Kalaydjian,
784 F.2d 53 (2d Cir. 1986) (affirming district court’s order
prohibiting appellants from questioning witness on his reasons
for taking an affirmation rather than swearing on the Koran).
Anwari’s claim of error is therefore not without some support.
We find, however, that because the Government only
mentioned Anwari’s religion once, and that because there is no
Fourth Circuit case * on point, Anwari cannot demonstrate that
allowing the question was plainly erroneous. Moreover, again,
the evidence against Anwari was ample, and the Government’s
isolated question, even if we assume it to have been erroneous,
did not rise to the level of being so prejudicial as to affect
the integrity of the trial.
(b) Evidence of Criminal Acts of Co-Conspirators
Anwari next suggests that his conviction should be
vacated on the grounds that the Government improperly solicited
*
Anwari cites to United States v. Ham, 998 F.2d 1247
(4th Cir. 1993), for the proposition that we must vacate his
sentence. Ham, however, dealt with the introduction of evidence
that is significantly more inflammatory than that at issue here,
and we find it does not apply.
5
evidence of criminal transactions that took place during a
period where Anwari was no longer alleged to have been a part of
the conspiracy. We have rejected this argument in the past, and
continue to do so today. See United States v. Leavis, 853 F.2d
215 (4th Cir. 1988) (the fact that defendant’s co-conspirators
pled guilty does not deprive the government of its right to
detail the full scope of the conspiracy, even those matters
where the defendant was not directly involved).
III. Sufficiency of the Evidence
Anwari next argues that the Government did not
introduce evidence sufficient to sustain a conviction because
there was insufficient proof that Anwari knew the heroin he is
alleged to have distributed was destined for the United States.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690
(2008). This court reviews a sufficiency of the evidence
challenge by determining whether, viewing the evidence in the
light most favorable to the government, any rational trier of
fact could find the essential elements of the crime beyond a
reasonable doubt. United States v. Collins, 412 F.3d 515, 519
(4th Cir. 2005).
6
Several witnesses testified that they communicated
with Anwari during negotiations, and it was evident that he was
aware that the heroin was destined for the United States. In
addition, the translator who facilitated the transactions among
the co-conspirators testified that he told Anwari the drugs were
to be sold in the United States. Finally, the Government
introduced evidence of Western Union receipts reflecting that
the proceeds of drug transactions in the United States were
being transferred to Anwari in Pakistan and Afghanistan. We
find from that record that the jury could properly conclude that
Anwari knew the drugs were to be sold in the United States.
IV. Reasonableness of Sentence
Finally, Anwari argues that his sentence is per se
unreasonable because the district court clearly erred in
calculating the relevant drug quantity. The Presentence Report
determined that Anwari was responsible for three kilograms of
heroin. Anwari argues that this was based on unreliable
evidence.
This court reviews the district court’s calculation of
the quantity of drugs attributable to a defendant for sentencing
purposes for clear error. United States v. Randall, 171 F.3d
195, 210 (4th Cir. 1999). Clear error occurs when the court,
upon reviewing the record as a whole, is “‘left with the
7
definite and firm conviction that a mistake has been
committed.’” Easley v. Cromartie, 532 U.S. 234, 242 (2001)
(quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).
We have reviewed the record and find that witness
testimony as to the drug weight that Anwari allegedly
distributed was sufficient to allow the district court to
attribute a drug weight of three kilograms to Anwari.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
8