United States v. Dahab , 348 F. App'x 943 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2009
No. 08-61102
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADNAN DAHAB, also known as Adnan Abudahab, also known as Eddie Dahab,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi, Southern Division
USDC No. 1:08-CR-29-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Adnan Dahab was convicted of one count of conspiracy to traffic in
counterfeit goods and four counts of trafficking in counterfeit goods. The district
court sentenced Dahab to concurrent terms of 51 months of imprisonment and
three years of supervised release and ordered him to pay $13,375.03 in
restitution and a $500 special assessment. Dahab now appeals.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
No. 08-61102
Dahab argues that the evidence was insufficient to support his conviction
on each count of the indictment. Dahab moved for a judgment of acquittal at the
close of the government’s case in chief and again after he presented his evidence.
Accordingly, we review the sufficiency of the evidence de novo. See United States
v. Shum, 496 F.3d 390, 391 (5th Cir. 2007). In doing so, we look at the evidence
“in the light most favorable to the government [and] with all reasonable
inferences and credibility choices made in support of a conviction.” United States
v. Anderson, 559 F.3d 348, 353 (5th Cir.) (internal quotation marks and citation
omitted), cert. denied, 129 S. Ct. 2814 (2009).
The elements the government must prove to secure a conviction of
conspiracy under 18 U.S.C. § 371 are “an agreement between two or more
persons to commit a crime against the United States and an overt act by one of
them in furtherance of the agreement.” United States v. Yamin, 868 F.2d 130,
133 (5th Cir. 1989). The elements the government must prove to convict a
defendant of violating 18 U.S.C. § 2320 are that “(1) the defendant trafficked or
attempted to traffic in goods or services; (2) such trafficking, or the attempt to
traffic, was intentional; (3) the defendant used a counterfeit mark on or in
connection with such goods or services; and (4) the defendant knew that the
mark so used was counterfeit.” United States v. Hanafy, 302 F.3d 485, 487 (5th
Cir. 2002).
Dahab’s contention that there is no evidence that he actually trafficked in
Nike shoes after being issued a cease and desist order is unavailing. Section
2320(a)(1) criminalizes attempted trafficking as well as successful trafficking,
and the jury heard testimony that Dahab displayed counterfeit Nike shoes for
retail sale after being served with a cease and desist order that informed him
unequivocally that those shoes were counterfeit.
Dahab primarily challenges the sufficiency of the government’s evidence
that he knew that the Nike shoes and the Lacoste and Polo brand shirts he sold
were counterfeit. The FBI agent’s testimony that Dahab was still displaying
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No. 08-61102
counterfeit shoes for sale well after he received the cease and desist order was
sufficient for the jury to have found the requisite knowledge for the conspiracy
count (Count 1) and for the § 2320 count charging trafficking or attempted
trafficking of Nike shoes on or about the date the warrant was executed (Count
5).
With respect to evidence pertaining to Dahab’s knowledge to support the
three substantive § 2320 counts relating to particular sales of Nike shoes and
Lacoste and Polo shirts (Counts 2, 3, and 4), the jury heard testimony of an
investigator that, during the execution of the search warrant, Dahab protested
that certain designer merchandise in his store was not counterfeit. The
investigator testified that, upon examination, that particular merchandise
turned out to be genuine designer clothing and that he then realized that Dahab
knew what merchandise in his store was counterfeit and what was not. The jury
heard testimony that during the search and seizure, Dahab was very reluctant
to have an FBI agent open a box that contained damaging documentary
evidence, indicating that he knew his merchandise was counterfeit.
The jury also heard from a coconspirator, Abbas Chouman, the wholesale
distributor of the counterfeit merchandise. Chouman testified that he informed
Dahab at the beginning of their business relationship that the merchandise he
sold was counterfeit. He also testified that he had warned Dahab about the risk
of selling counterfeit Nike shoes, due to the number of investigators that Nike
employs. Viewing the evidence in the light most favorable to the government
and with reasonable inferences and credibility choices made in support of the
conviction, the evidence was sufficient to support Dahab’s conviction on each
count of the indictment.
Dahab also argues that the district court erred in admitting Chouman’s
testimony that he previously pleaded guilty to the conspiracy. Dahab filed an
unsuccessful motion in limine seeking to prevent the government from
introducing evidence of Chouman’s guilty plea and conviction. We review the
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No. 08-61102
district court’s decision to allow the introduction of this evidence for abuse of
discretion. Fed. R. Evid. 103(a); see also United States v. Setser, 568 F.3d 482,
493 (5th Cir. 2009), petition for cert. filed, (U.S. Sep. 12, 2009) (No. 09-6460).
“[A] defendant is entitled to have the questions of his guilt determined
upon the evidence against him, not on whether a Government witness or
codefendant has pled guilty to the same charge.” United States v. Fleetwood, 528
F.2d 528, 532 (5th Cir. 1976) (internal quotation marks and citation omitted).
However, the guilty plea of a coconspirator may be disclosed at trial, provided
that (1) the evidence serves a legitimate purpose and (2) a proper limiting
instruction is given. United States v. Valley, 928 F.2d 130, 133 (5th Cir. 1991).
“[A] legitimate reason exists when the record reflects a defensive strategy to
emphasize or rely on a co-conspirator’s guilt.” Id.In his motion in limine, Dahab did not seek to exclude the evidence, he
sought only to prevent the government from introducing it. He did not state that
he would not use the evidence of Chouman’s conviction to attack his credibility.
Dahab stated merely that he had “not indicated to the government that he would
use Chouman’s felony conviction for impeachment purposes.” The district court
specifically noted in its order denying Dahab’s motion in limine that this
statement was insufficient to warrant the exclusion of the evidence. At no time
after this did defense counsel attempt to be less equivocal or state definitively
for the record that the defense would not bring up Chouman’s conviction if the
government did not. Under these circumstances, the district court did not abuse
its discretion by finding that a legitimate purpose was served by the evidence.
See Valley, 928 F.2d at 132-35.
Further, the district court gave a “clear and strong cautionary instruction”
to the jury after Chouman’s testimony and again while giving the jury their
instructions that a jury “may use the accomplice’s guilty plea only to assess his
credibility as a witness and not to create an inference of guilt against the
accused.” United States v. Borchardt, 698 F.2d 697, 701 (5th Cir. 1983) (internal
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No. 08-61102
quotation marks and citation omitted). The district court’s instructions were
sufficient, and there was no abuse of discretion with respect to the introduction
of Chouman’s testimony regarding his guilty plea and conviction. The judgment
of the district court is AFFIRMED.
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