United States v. Sameh Danhach , 815 F.3d 228 ( 2016 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20339 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, March 9, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
SAMEH KHALED DANHACH, also known as Andrew,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Sameh Khaled Danhach was convicted by a jury of several criminal
offenses relating to a scheme to steal and resell over-the-counter (OTC)
medication, brand-name baby formula, and similar goods. He appeals the
denial of a motion to suppress evidence found in a search of his warehouse, the
sufficiency of the evidence supporting most of his counts of conviction, and his
sentence. Finding no reversible error, we affirm.
I. BACKGROUND
Danhach was indicted for acting as a high-level “fence”: someone who
receives stolen goods from “boosters” (thieves) and resells them for profit. The
indictment alleged that Danhach and his partner, Alex Kheir, acting through
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Houston-based companies called SKD Trading and Lifetime Wholesale, sold
OTC medication and baby formula stolen from retail stores and pharmacies.
A superseding indictment charged Danhach with conspiracy to transport
stolen goods in interstate commerce, in violation of 18 U.S.C. § 371 (Count 1);
aiding and abetting the interstate transportation of stolen OTC medication and
baby formula, in violation of 18 U.S.C. §§ 2314 and 2 (Counts 2 through 4); and
aiding and abetting the obstruction of justice by concealing or altering paper
ledgers and a video recorder hard drive with evidentiary value, in violation of
18 U.S.C. §§ 1512(c)(1) and 2 (Counts 5 and 6).
Danhach filed a motion to suppress evidence seized from his Houston
warehouse, arguing that government agents conducted an unlawful
warrantless sweep of the building and then obtained an invalid search warrant
by using illegally obtained information and falsifying the warrant affidavit.
The district court denied that motion after holding an evidentiary hearing.
After a trial, the jury found Danhach guilty on all six counts, and the
district judge denied his motion for a judgment of acquittal or a new trial. The
district court imposed concurrent sentences of 60 months for the conspiracy
count, 120 months for the interstate transportation of stolen goods counts, and
151 months for the obstruction of justice counts. The court also ordered
concurrent three-year terms of supervised release and $100 special
assessments for each count, and restitution of approximately $540,000.
Danhach timely appealed.
II. DISCUSSION
On appeal, Danhach argues that the district court should have (1)
granted his motion to suppress, (2) ruled the evidence presented at trial
insufficient to support five of his counts of conviction, and (3) sentenced him
differently. We disagree for the following reasons.
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A. Motion to Suppress
Danhach first argues that the district court erred in failing to suppress
evidence seized from his Houston warehouse pursuant to a search warrant.
Where, as here, the district court denies a motion to suppress after hearing live
testimony, we “accept the trial court’s factual findings unless clearly erroneous
or influenced by an incorrect view of the law,” but review de novo the “ultimate
conclusion about the constitutionality of the law enforcement conduct.” United
States v. Roberts, 612 F.3d 306, 309 (5th Cir. 2010) (citation omitted). “All
evidence is viewed in the light most favorable to the prevailing party, here the
Government.” United States v. Montgomery, 777 F.3d 269, 272 (5th Cir. 2015).
We “may affirm the district court’s ruling on a motion to suppress based on any
rationale supported by the record.” United States v. Waldrop, 404 F.3d 365,
368 (5th Cir. 2005).
Prior to the search, the Houston Police Department and FBI had been
investigating Danhach and Kheir for their involvement with organized retail
theft. During this investigation, agents had learned that Danhach and Kheir
were using a particular warehouse, to which a car used for stealing OTC
products had been linked. The agents had observed, among other things,
people arriving at the warehouse to unload black trash bags—which
investigators knew were often used to steal OTC products from stores. On
March 1, 2012, agents surveilling the warehouse saw Kheir and an
unidentified person enter the building; the agents then approached and
knocked on the door in an effort to gain entry. Once inside, the agents saw
indicators of a stolen OTC operation, which they cited to obtain a search
warrant and seize evidence presented at trial.
The district court did not err in denying the motion to suppress. In their
initial attempt to gain entry to the warehouse, the agents permissibly used the
“knock and talk” technique, which we and other courts have “recognized . . . as
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a reasonable investigative tool when officers seek to gain an occupant’s consent
to search or when officers reasonably suspect criminal activity.” United States
v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); see also Kentucky v. King, 563 U.S.
452, 469 (2011) (“When law enforcement officers who are not armed with a
warrant knock on a door, they do no more than any private citizen might do.”).
The district court’s factual finding that Kheir then permitted the officers to
enter the building was far from clearly erroneous: it was supported by
testimony that one of the agents asked Kheir for permission before Kheir
allowed them inside, and by surveillance video consistent with that agent’s
account. 1
Unrebutted testimony, again consistent with video evidence presented
at the suppression hearing, establishes that, once the agents were inside the
building, Kheir gave them permission to walk back to the main warehouse area
to find an unidentified worker that Kheir had indicated was there.
Uncontradicted evidence also supports the district court’s finding that once the
agents entered that area, they saw in plain view what immediately appeared
to be stolen OTC medication and other items consistent with an organized
retail theft operation. See United States v. Jackson, 596 F.3d 236, 242 (5th Cir.
2010) (explaining that evidence can be cited in support of a search warrant if
“(1) the police lawfully entered the area where the item was located; (2) the
item was in plain view; (3) the incriminating nature of the item was
‘immediately apparent;’ and (4) the police had a lawful right of access to the
item” (citation omitted)). Indeed, from our review of the record, the district
1 Because an agent testified that he asked for permission to enter and Kheir admitted
them, this holding does not conflict with the Ninth Circuit case Danhach cites in support of
his challenge. Cf. United States v. Shaibu, 920 F.2d 1423, 1428 (9th Cir. 1990) (“We hold
that in the absence of a specific request by police for permission to enter a home, a defendant's
failure to object to such entry is not sufficient to establish free and voluntary consent. We
will not infer both the request and the consent.”).
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court did not clearly err in finding that the agents lawfully observed all of the
evidence cited in the affidavit supporting the search warrant. 2
Even if any evidence cited in the warrant affidavit was not covered by
the plain-view doctrine, the record supports the conclusion that the agents
asked for—and Kheir gave—consent for a full search of the warehouse. In
order to satisfy the consent exception to the Fourth Amendment’s presumptive
warrant requirement, “the government must demonstrate that there was (1)
effective consent, (2) given voluntarily, (3) by a party with actual or apparent
authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). Both
Danhach and Kheir indicated that Kheir was in charge of the warehouse.
Here, one of the agents consistently testified that, after he entered the main
warehouse area and saw apparently stolen goods, he asked for and received
Kheir’s uncoerced oral consent to “search the warehouse.” Danhach offered no
evidence to rebut that testimony or show that he withdrew his oral consent. 3
2 The evidence supports the district court’s finding that isolated pieces of evidence not
immediately visible in the warehouse area—most importantly, a “booster list” of stolen items
on a desk in the officer area of the building—were in plain view while the agents were
lawfully attempting to get Kheir’s written consent to search the building.
3 Kheir declined to memorialize this consent in writing without first speaking to a
lawyer. But declining to sign a consent form does not automatically withdraw previously
given oral consent. See United States v. Stevens, 487 F.3d 232, 240–41 (5th Cir. 2007)
(holding that a district court did not clearly err in finding consent where two agents testified
that the defendant orally consented, but the defendant denied having orally consented and
would not sign a written consent form); United States v. Gomez-Diaz, 712 F.2d 949, 950–52
(5th Cir. 1983) (upholding a finding that a defendant orally consented to an X-ray despite his
refusal to sign a written consent form, when he did not resist being X-rayed and chose not to
testify at the suppression hearing); United States v. Garner, No. 96-20490, 1997 WL 420227,
at *1 (5th Cir. July 1, 1997) (per curiam) (holding that a district court did not clearly err in
crediting agent’s testimony that a defendant had orally consented despite his refusal to sign
consent form). Kheir eventually spoke to an attorney and refused to sign the form, but only
after the agents had already seen the evidence cited in the affidavit, and the affiant had left
the warehouse to draft the affidavit.
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Thus, the consent and plain-view exceptions justified all of the observations
used to obtain the search warrant. 4
Finally, Danhach argues that the search warrant was invalid under
Franks v. Delaware, 438 U.S. 154 (1971), because the affidavit supporting it
contained materially false or misleading information. We are unpersuaded. If
a defendant establishes by a preponderance of the evidence that false
information was intentionally or recklessly included in an affidavit, the court
must “excise the offensive language from the affidavit and determine whether
the remaining portion would have established the necessary probable cause.”
United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002) (citing Franks, 438
U.S. at 156–57). This rule also extends to material omissions, but only
intentional or reckless ones. See United States v. Martin, 615 F.2d 318, 328–
29 (5th Cir. 1980). If the defendant fails to meet his burden of proving “that
false information was given intentionally or recklessly . . . or if the affidavit
would have sufficiently provided probable cause without the false information,
the warrant did not violate the Fourth Amendment and the evidence should
not have been excluded.” Cavazos, 288 F.3d at 710. Here, most of the alleged
inaccuracies that Danhach identifies are simply not misstatements or
omissions. As to the remainder, Danhach has not shown that any
misstatement or omission was material, let alone reckless or intentional.
Accordingly, the district court did not err in denying the motion to suppress.
4 Danhach stresses that the agents took several photographs before leaving the
warehouse to obtain the search warrant, and that the affiant consulted at least one of those
photos. Several circuits have held that law-enforcement agents may photograph
incriminating items in plain view. See United States v. Mancari, 463 F.3d 590, 596 (7th Cir.
2006); Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992); United States v. Espinoza, 641 F.2d
153, 166–67 (4th Cir. 1981). We need not address that issue, though, because (1) the district
court did not clearly err in concluding that the photographs were not essential to drafting a
sufficient affidavit, and (2) Kheir orally consented to a search the warehouse. Danhach also
complains that agents opened a toolbox and moved the flap of another box, but even if those
actions were improper, no evidence obtained thereby was cited in the affidavit.
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B. Sufficiency Issues
Danhach preserved all of his sufficiency-of-the-evidence objections by
moving for acquittal in the district court. Accordingly, we review each
sufficiency challenge de novo. United States v. Grant, 683 F.3d 639, 642 (5th
Cir. 2012). We thus “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.” United States v. Vargas-Ocampo, 747
F.3d 299, 303 (5th Cir. 2014) (en banc).
As to each conviction he challenges, Danhach was charged as an aider
and abettor. A defendant aids and abets a criminal venture when he associates
with it, participates in it, and “seek[s] by his actions to make the venture
succeed.” United States v. Ibarra-Zelaya, 465 F.3d 596, 603 (5th Cir. 2006).
Additionally, Danhach does not appeal his conviction of conspiracy to transport
stolen merchandise in interstate commerce. And for each conviction Danhach
does appeal, the jury was given a so-called “Pinkerton instruction,” which
Danhach does not contend was improper. See Pinkerton v. United States, 328
U.S. 640, 645–47 (1946); see also United States v. Thomas, 348 F.3d 78, 84–85
(5th Cir. 2003) (approving a Pinkerton instruction essentially identical to the
one given here). Under Pinkerton, “a conspirator can be found guilty of a
substantive offense committed by a co-conspirator and in furtherance of the
conspiracy, so long as the co-conspirator’s acts are reasonably foreseeable.”
United States v. Mata, 491 F.3d 237, 242 n.1 (5th Cir. 2007). We hold that, at
minimum, each of Danhach’s substantive convictions was valid under
Pinkerton.
Danhach first argues that insufficient evidence supported his three
convictions for aiding and abetting the interstate transportation of stolen
property under 18 U.S.C. § 2314. To establish that offense, “the government
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must prove: (1) the interstate transportation of (2) goods, merchandise, wares,
money, or securities valued at $5,000 or more . . . (3) with knowledge that such
items have been stolen, converted, or taken by fraud.” United States v.
Onyiego, 286 F.3d 249, 253 (5th Cir. 2002).
Danhach’s first § 2314 conviction was based on a shipment of OTC
medication from Maryland to an apparently fictitious “Ninja Compani” at an
address associated with FedEx accounts registered to Danhach’s companies.
That package, which Kheir attempted to pick up, contained OTC medication
worth approximately $5,900. Plenty of evidence supported the jury’s
conclusion that the medication was stolen. Most notably, many of the products
in the package had CVS antitheft devices and CVS store numbers attached,
and a CVS investigator was able to trace some products to the stores from
which they came. The package also contained a “booster list”—an inventory of
stolen goods commonly used for illicit accounting and payment purposes.
Moreover, there was sufficient evidence for the jury to conclude that the
shipment was foreseeably made in furtherance of a conspiracy, which Danhach
joined, to steal and resell OTC medication. This evidence included: (1)
testimony that boosters were arrested with stolen OTC medication in multiple
states while driving vehicles rented by Danhach; (2) a booster’s testimony
about stealing and selling OTC products to Danhach for about two years; (3)
the stolen OTC medication and supplies used to “clean” such products for
resale that were found in Danhach’s warehouse; (4) testimony that Danhach
removed store-identifying labels from OTC medication and showed an
employee how to do the same; (5) evidence that Danhach sold OTC medication
at prices lower than those at which Wal-Mart—the largest-volume seller of
many of the products—would be able to purchase the products from the
manufacturers; and (6) testimony from another Houston-area fence that
Danhach was known to be a fence for OTC medication. Viewed in the light
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most favorable to the jury’s verdict, this evidence adequately supports
Danhach’s Count 2 conviction. See United States v. Vontsteen, 872 F.2d 626,
630–31 (5th Cir. 1989) (affirming aiding and abetting conviction under § 2314
where there was sufficient evidence that either the defendant or an accomplice
acting on the defendant’s instructions had arranged for a third party to
transport stolen property).
Danhach’s other § 2314 convictions were based on baby formula shipped
from Lifetime Wholesale to New Jersey on February 24 and 28, 2012.
Contrary to Danhach’s arguments, there was sufficient evidence for the jury to
conclude that these interstate shipments consisted of stolen baby formula.
Most damningly, an employee of Abbott Nutrition, which manufactures a
leading brand of baby formula, was able to “clearly identify” his company’s
formula in surveillance photographs of the warehouse on February 24 and 28,
and testified that the formula was not packaged as it would have been had it
come from Abbott. The same witness testified that the prices at which
Danhach sold brand-name baby formula were suspicious because they were
significantly below Abbott’s wholesale prices, and because Abbott would buy
back any outdated or damaged merchandise, so that its customers had no
reason to dump it below cost. The jury also heard sufficient evidence to
conclude that the shipments of three and two pallets of baby formula,
respectively, were worth more than $5,000. Each pallet of Abbott formula
wholesales for no less than $11,000, and Danhach’s company spent over $4,970
just in shipping charges for the February 24 shipment. Finally, considering
the evidence presented at trial, the jury reasonably could have concluded that
Danhach directly participated in these shipments of stolen baby formula from
Danhach’s warehouse under his company’s name—or at the very least, that
the shipments were a foreseeable part of the conspiracy that Danhach does not
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challenge on appeal. 5 See Ibarra-Zelaya, 465 F.3d at 603 (“The evidence
supporting a conspiracy convictions is generally sufficient to support an aiding
and abetting conviction as well.” (citation omitted)). Thus, sufficient evidence
supported Danhach’s convictions on Counts 3 and 4.
Danhach also challenges his two convictions for aiding and abetting
obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). A person commits
this offense when he “corruptly . . . alters, destroys, mutilates, or conceals a
record, document, or other object, or attempts to do so, with the intent to impair
the object’s integrity or availability for use in an official proceeding.” 18 U.S.C.
§ 1512(c)(1).
One of these counts was based on Kheir’s concealment of a hard drive
containing video footage of the warehouse, which the parties stipulated was
placed in the attic or ceiling of the warehouse on March 1, 2012, “after agents
appeared at the warehouse but before the search warrant was executed.” In
two recorded jailhouse calls that Danhach made to Kheir, Danhach—speaking
mostly in Arabic and seemingly making a conscious effort to be vague—
instructed Kheir to “remove” something, referenced an “attic,” and warned him
that he would be searched when he left the warehouse. Just after these calls,
Kheir locked the warehouse door, and the video recordings stored on the hard
drive skipped and then ceased. The jury reasonably could have inferred from
these facts that Danhach directed Kheir to hide the hard drive from law
enforcement agents, which Kheir did. Therefore, sufficient evidence supports
Danhach’s Count 6 conviction for aiding and abetting obstruction of justice.
5Video evidence showed Danhach, Kheir, and their employee counting and preparing
baby formula for shipment in the relevant time frame. Additionally, a witness who worked
for Danhach and a rival fence both testified that baby formula was part of Danhach’s fencing
operation.
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Similarly, the jury reasonably could have convicted Danhach of
obstruction of justice based on Kheir’s concealment of a Gucci bag, which Kheir
retrieved from Danhach’s residence on the day of Danhach’s arrest, and which
contained ledgers detailing illicit transactions. When he went to retrieve the
bag, Kheir told Danhach’s landlord that Danhach had called and asked him to
pick up some of Danhach’s paperwork; at the landlord’s request, Kheir wrote a
letter confirming that he had Danhach’s permission. Viewing the evidence in
the light most favorable to the verdict, the jury could have concluded that this
attempt to conceal the ledgers from law enforcement agents was a reasonably
foreseeable act in furtherance of the conspiracy Danhach joined. Accordingly,
we conclude that sufficient evidence supports Danhach’s Count 5 conviction as
well.
C. Sentencing Issues
Danhach objects to two aspects of his sentencing. First, he argues that
the district court erred when it estimated the loss amount attributable to his
crimes to be $2,931,057.30, resulting in an eighteen-level enhancement. The
Government bears the burden of proving sentencing enhancements by a
preponderance of the evidence. United States v. Ramos-Delgado, 763 F.3d 398,
400 (5th Cir. 2014). Under the relevant Sentencing Guideline, “loss is the
greater of actual loss or intended loss.” U.S.S.G. § 2B1.1(b)(1) cmt n.3(A)
(2013). Importantly, “[t]he court need only make a reasonable estimate of the
loss,” and the sentencing judge’s “unique position to assess the evidence and
estimate the loss based upon that evidence” entitles the district court’s
estimate to deference. Id. cmt n.3(C). We have held “that the fair market value
of stolen goods should reflect the market in which the victim merchant would
have sold them.” United States v. Lige, 635 F.3d 668, 672 (5th Cir. 2011). The
district court’s loss-amount calculation is a factual finding reviewed for clear
error. United States v. Beacham, 774 F.3d 267, 278 (5th Cir. 2014).
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The district court adopted the loss-amount estimate in the Presentence
Report (PSR), which relied on ledgers that were found in the Gucci bag
discussed above and that, according to the PSR, reflect Danhach’s dealings in
stolen products. The PSR included a chart listing sales, costs, and profits
between August 1, 2011, and January 15, 2012. Summing these figures, the
PSR held Danhach accountable for sales of $2,825,638 as a measure of
intended loss. The PSR added about $105,000 to that sum to account for the
retail value of the products that Kheir attempted to pick up at FedEx, and
those that were seized from the warehouse on March 1, 2012. 6
A district court may rely upon information in the PSR in making its loss-
amount estimate, so long as that “information bears some indicia of reliability.”
United States v. Simpson, 741 F.3d 539, 557 (5th Cir. 2014). And if a defendant
challenges the PSR, he “bears the burden of presenting rebuttal evidence to
demonstrate that the information in the PSR is inaccurate or materially
untrue.” Id. Danhach has not met that burden. As he did below, Danhach
contends that the PSR’s methodology is “speculative and arbitrary.” He also
criticizes the PSR’s conclusion that all of the business dealings recorded in the
ledgers involved stolen goods. But he points to no evidence that any
transaction was legitimate, or to any other evidence that rebuts the PSR on
the loss amount. Accordingly, his challenge on this issue fails.
Second, Danhach argues that the district court erred in imposing
separate $100 special assessments for each of his obstruction-of-justice
convictions. Because Danhach did not raise this objection below, we review it
only for plain error. See United States v. Hughes, 726 F.3d 656, 659 (5th Cir.
2013). Under this standard of review, “[w]hen there was (1) an error below,
6 Under the version of the Sentencing Guidelines applicable when Danhach was
sentenced, the threshold for the eighteen-level loss-amount enhancement for crimes
involving stolen property was $2,500,000. U.S.S.G. § 2B1.1(b)(1)(J) (2013).
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that was (2) clear and obvious, and that (3) affected the defendant’s substantial
rights, a ‘court of appeals has the discretion to correct it but no obligation to do
so.’” Id. (quoting United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)).
This court, however, should “remedy the error only if it ‘seriously affected the
fairness, integrity or public reputation of the judicial proceedings.’” Trejo, 610
F.3d at 319 (quoting United States v. Olano, 507 U.S. 725, 735–36 (1993)).
Danhach has shown no error, let alone plain error. He relies on United
States v. Kimbrough, in which this court held that the government had
impermissibly divided a single child pornography offense into two counts. 69
F.3d 723, 728–30 (5th Cir. 1995). That division violated “the rule against
multiplicity,” which stems from the Fifth Amendment’s prohibition against
double jeopardy, “and is intended to prevent multiple punishments for the
same act.” Id. at 729. In rejecting the prosecution’s argument that “the
grouping of the offenses by the trial court under the Sentencing Guidelines
removed the danger of multiple punishments,” we stated: “for double jeopardy
purposes, sentences are not truly concurrent where a mandatory special
assessment is separately imposed on each conviction.” Id. Kimbrough is
inapposite because in this case—as shown by the discussion above—Danhach’s
two obstruction convictions were based on distinct criminal acts. Therefore,
there was no violation of the rule against multiplicity, and no error in imposing
concurrent sentences and separate special assessments for Counts 5 and 6.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment in
its entirety.
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