United States v. Sohail Chaudhry , 321 F. App'x 119 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-6-2009
    USA v. Sohail Chaudhry
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-4540
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    Recommended Citation
    "USA v. Sohail Chaudhry" (2009). 2009 Decisions. Paper 1584.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1584
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 07-4540
    _____________
    UNITED STATES OF AMERICA
    v.
    SOHAIL CHAUDHRY,
    Appellant
    ________________
    On Appeal From the United States District Court
    for the District of New Jersey
    (Criminal No. 06-00771)
    District Judge: Honorable Faith S. Hochberg
    Submitted Under Third Circuit LAR 34.1(a)
    March 13, 2009
    ________________
    Before: CHAGARES, FUENTES and TASHIMA*,Circuit Judges.*
    (Filed: April 6, 2009)
    ____________
    OPINION
    ______________
    *
    The Honorable A. Wallace Tashima, Senior Judge, United States Court of
    Appeals for the Ninth Circuit, sitting by designation.
    CHAGARES, Circuit Judge.
    Sohail Chaudhry appeals his convictions for travel with intent to engage in a
    sexual act with a minor and enticement of a minor female, as well as his sentence. We
    will affirm.
    I.
    Because we write solely for the parties, we set forth only those facts that are
    relevant to our analysis.
    On June 20, 2005, Chaudhry, then a married 28-year-old male living in
    Pennsylvania, entered an internet chat room entitled “Romance NJ” and initiated contact
    with a government agent, David Agar, who had assumed the identity of a 14-year-old girl
    from New Jersey with the screen name “Cheergrlsam.” Chaudhry represented to
    Cheergrlsam that he was a 20-year-old male living in Philadelphia. On approximately 54
    occasions between June 20, 2005, and January 3, 2006, Chaudhry engaged in sexually
    explicit conversations with Cheergrlsam. These conversations were recorded and stored
    by the Yahoo! Messenger program, from which transcripts were later produced.2
    On January 4, 2006, Chaudhry traveled from his home in Pennsylvania to a
    McDonald’s in New Jersey to meet “Cheergrlsam” in person. Upon arriving at the
    McDonald’s, he was arrested. Chaudhry was taken to the Bergen County Prosecutor’s
    2
    The Government concedes that the first line or two of the instant messaging
    conversations are not always recorded by the Yahoo! Messenger program.
    2
    Office, where he was informed of his rights under Miranda v. Arizona, 
    384 U.S. 436
    (1966), and agreed to waive those rights and speak with the investigating officers.
    Chaudhry admitted that he corresponded with a 14-year-old girl that he knew as
    Cheergrlsam in an internet chat room, starting in June 2006. Chaudhry also admitted that
    he initiated conversations with Cheergrlsam about sex, and that he had traveled to New
    Jersey to meet Cheergrlsam in person. In addition, Chaudhry admitted that he discussed
    performing various sexual acts with Cheergrlsam and that he had contacted the Horizon
    Motel in South Hackensack, New Jersey, to check on the availability of rooms and on
    rates. Chaudhry stated that he intended to purchase condoms ahead of time, but he forgot
    and then decided to get them after he met with Cheergrlsam. Finally, Chaudhry stated
    that he spoke with approximately six other girls, who he believed to be approximately
    Cheergrlsam’s age, over the internet.
    On September 21, 2006, a grand jury returned a two-count indictment charging
    Chaudhry with traveling in interstate commerce for the purpose of engaging in illicit
    sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b), and with using
    telephone lines and the internet to attempt to entice a minor to engage in criminal sexual
    activity, in violation of 18 U.S.C. § 2422(b). On June 13, 2007, following a jury trial,
    Chaudhry was convicted on both counts of the indictment. Chaudhry filed two post-
    verdict motions for a new trial, both of which were denied by the District Court. On
    November 28, 2007, the District Court sentenced Chaudhry to an 84-month term of
    3
    imprisonment and a $12,500 fine.
    On appeal, Chaudhry argues that there was insufficient evidence to support the
    jury’s rejection of his entrapment defense. Chaudhry further argues that the District
    Court erred in denying certain preliminary and evidentiary motions, including, inter alia,
    its ruling on certain discovery requests and its denial of Chaudhry’s motion to suppress
    his post-arrest statements to investigating officers. Chaudhry also argues that his
    sentence is unreasonable because he should not have received an upward adjustment for
    obstruction of justice, and that the Court erred by limiting his right to allocution and
    denying him the opportunity directly to address his departure motions to the Court.
    Finally, Chaudhry contends that he suffered from ineffective assistance of counsel at trial.
    II.
    We have jurisdiction pursuant to 28 U.S.C. § 1291, and jurisdiction to review the
    sentences imposed by the District Court pursuant to 18 U.S.C. § 3742.
    III.
    The District Court determined that Chaudhry met the threshold requirements
    entitling him to an entrapment instruction.1 The jury rejected Chaudhry’s entrapment
    defense and returned a verdict of guilty. Chaudhry argues that this Court should reverse
    1
    A defendant is entitled to an entrapment charge when he is first able to show “(1)
    evidence that the Government initiated the crime, regardless of the amount of pressure
    applied to the defendant, and (2) any evidence negating the defendant’s propensity to
    commit the crime.” United States v. Watson, 
    489 F.2d 504
    , 509 (3d Cir. 1973); see
    United States v. Marino, 
    868 F.2d 549
    , 552 n.6 (3d Cir. 1987).
    4
    the determination of the jury because the verdict was based on insufficient evidence and
    he was entrapped as a matter of law. We review the jury’s determination in the light most
    favorable to the prosecution, and resolve all reasonable inferences therefrom in its favor.
    United States v. Jannotti, 
    673 F.2d 578
    , 598 (3d Cir. 1982) (en banc). Viewing the
    evidence in this light, we must uphold the jury’s verdict “unless no reasonable jury could
    conclude beyond a reasonable doubt that the defendant was predisposed to commit the
    offense for which he was convicted.” 
    Id. Chaudhry argues
    that the Government induced his actions, pointing to evidence
    that there was a period of time in which the Government agents attempted to initiate
    contact, and Chaudhry did not respond, and that, at one point, Chaudhry cancelled or
    delayed a planned meeting with Cheergrlsam. We note that “inducement alone does not
    establish entrapment as a matter of law”; rather, the central consideration is “whether the
    undisputed evidence shows a lack of predisposition on the part of the accused.” United
    States v. Gambino, 
    788 F.2d 938
    , 944 (3d Cir. 1986) (citing Hampton v. United States,
    
    425 U.S. 484
    , 488 (1976)). We are unconvinced on this record that no reasonable jury
    could have rejected Chaudhry’s entrapment defense.
    The record reflects that Chaudhry exhibited a willingness to meet, and engage in
    sexual acts, with Cheergrlsam, and admitted to initiating the topic of sex with
    Cheergrlsam. Moreover, regardless of which party initiated conversations, Chaudhry was
    consistently the party that introduced the topic of engaging in sexual activity, as well as
    5
    planning a meeting to engage in such conduct. We have held that the Government may
    negate an entrapment defense with evidence of an existing course of conduct that is
    similar to the crime charged, an “already formed design” to commit the crime with which
    the defendant is charged, or a willingness to commit the crime “as evidenced by the
    accused’s ready response to the inducement.” United States v. Lakhani, 
    480 F.3d 171
    ,
    179 (3d Cir. 2007) (quotations and citations omitted). Here, there is ample evidence upon
    which the jury could have relied to reject the entrapment defense.
    IV.
    Chaudhry challenges the District Court’s pretrial ruling denying him the
    opportunity to have an expert witness personally examine a government-owned computer
    used in various undercover law enforcement investigations, including for the instant-
    messaging based conversations between Chaudhry and the agent posing as Cheergrlsam.
    “An application for discovery under Rule 16 of the Federal Rules of Criminal Procedure
    is addressed to the sound discretion of the trial court, and its ruling will be disturbed only
    for an abuse of discretion.” United States v. Newman, 
    476 F.2d 733
    , 739 (3d Cir. 1973)
    (quotation omitted). The Government opposed the motion in the District Court, arguing
    that such production could compromise unrelated investigations, and noting that it had
    previously obtained from the computer and provided to Chaudhry copies of the recorded
    instant messaging conversations between Chaudhry and Cheergrlsam. The District Court
    denied the motion, satisfied with the testimony of Chaudhry’s own expert, who stated that
    6
    the retrieval of documents resulting from certain term searches would be “sufficient” to
    satisfy the discovery requests. Supplemental Appendix (S.A.) 1082-83. We find the
    District Court acted well within its discretion in reaching this determination, and we will
    not disturb it.
    V.
    Chaudhry next argues that the District Court erred in denying his motion to
    suppress his post-arrest statements. Chaudhry argues that his statements were not
    voluntary because he “altered his statements” to “appease” the law enforcement officers
    based on his belief that he was “undergoing a credibility test” and that his statements were
    being recorded. Appellant Br. at 51. The District Court’s ultimate conclusion regarding
    the voluntariness of a confession is subject to plenary review; however, we review the
    District Court’s underlying factual findings for clear error. United States v. Perez, 
    280 F.3d 318
    , 336 (3d Cir. 2002). We consider the “totality of the circumstances” to
    determine whether “the defendant’s will was overborne when he confessed.” Miller v.
    Fenton, 
    796 F.2d 598
    , 604 (3d Cir. 1986) (citations omitted); see United States v. Jacobs,
    
    431 F.3d 99
    , 108 (3d Cir. 2005). In making this determination, “coercive police activity
    is a necessary predicate to the finding that a confession is not ‘voluntary’ within the
    meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v.
    Connelly, 
    479 U.S. 157
    , 167 (1986); see United States v. Bethancourt, 
    65 F.3d 1074
    ,
    1078 (3d Cir. 1995).
    7
    In its opinion denying Chaudhry’s motions to suppress, the District Court observed
    that the Government had produced a Miranda waiver form, signed by Chaudhry; consent-
    to-search forms, also signed by Chaudhry; and hand-written notes from a law
    enforcement officer documenting Chaudhry’s post-arrest statements, each page of which
    Chaudhry had initialed. The Court found no evidence of coercive police activity or that
    Chaudhry did not understand his rights. Appendix (App.) 43. We conclude that the
    District Court did not err in denying Chaudhry’s motion to suppress his statements.
    Chaudhry further argues that the District Court abused its discretion in denying
    him the opportunity to inspect the interrogation room for recording equipment, and that
    the District Court erred in failing to suppress his post-arrest statements under Federal
    Rule of Evidence 403. We conclude that each of these arguments lacks merit.
    IV.
    Chaudhry raises a number of claims of sentencing error, including, inter alia, that
    the District Court erred in imposing a two-level sentencing enhancement for obstruction
    of justice, and that the District Court violated his right to allocute prior to the imposition
    of sentence.
    A.
    Chaudhry argues that the District Court erred when it imposed a two-level
    adjustment under United States Sentencing Guideline § 3C1.1 for obstruction of justice
    because he willfully committed perjury during his suppression hearing and at trial. A
    8
    district court may increase the offense level under § 3C1.1 based on perjured testimony if
    it finds that the defendant gave false testimony as to a material matter with the willful
    intent to give false testimony. United States v. Dunnigan, 
    507 U.S. 87
    , 94, 97 (1993);
    United States v. Bass, 
    54 F.3d 125
    , 133 (3d Cir. 1995). We review the District Court’s
    finding that Chaudhry’s testimony was willfully false for clear error. United States v.
    Cusumano, 
    943 F.2d 305
    , 315 (3d Cir. 1991).
    We conclude that the record supports the District Court’s finding. Chaudhry based
    his defense, in part, on his claim that he had numerous conversations with Cheergrlsam in
    the four to six weeks prior to June 20, 2005, the date on which the chat transcripts begin.
    Chaudhry claimed that those conversations, withheld from evidence, were nonsexual in
    nature and led Chaudhry to determine that Cheergrlsam was an adult woman, role playing
    as a minor. Chaudhry testified in detail concerning the content of these purported
    conversations in both the suppression hearing and at trial. Chaudhry further claimed that
    the Government concealed or destroyed the allegedly exculpatory chats, and argued that
    this alleged violation of Brady v. Maryland, 
    373 U.S. 83
    (1963), mandated dismissal of
    the indictment. Chaudhry presented expert testimony both at trial and at pretrial hearings
    in support of his defense that the submitted transcripts might be incomplete. See, e.g.,
    S.A. 607-610 (testimony of expert witness Robert Andrew Leonard).
    Chaudhry’s testimony was contradicted by agent Agar, who testified that he
    originated the screen name “Cheergrlsam” on June 20, 2005, the date of his first internet
    9
    investigation with the Computer Crimes Task Force, and that this was the first time he
    communicated with Chaudhry. Officer Agar’s testimony was further bolstered by records
    from Yahoo! indicating that the “Cheergrlsam” account was first created on June 20,
    2005.
    The District Court found that Chaudhry fabricated these earlier conversations with
    the purpose of constructing a defense “that he hoped would lead to an acquittal.” App.
    10; see Appellant Br. at 9 (acknowledging that the theory that the online chats were “role
    play” was critical to Chaudhry’s defense). Accordingly, the District Court held that such
    testimony was not merely false, but willfully so. We conclude that the District Court’s
    ruling was not clearly erroneous.
    B.
    Chaudhry also challenges the District Court’s procedures at sentencing, and
    contends that the Court improperly limited his right to allocute. This Court exercises
    plenary review over claims challenging the legality of sentencing procedures. United
    States v. Woods, 
    986 F.2d 669
    , 673 (3d Cir. 1993). Federal Rule of Criminal Procedure
    32 requires, in relevant part, that before imposing its sentence, the Court must provide the
    defendant’s attorney the opportunity to speak on the defendant’s behalf, and “address the
    defendant personally in order to permit the defendant to speak or present any information
    to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A). The District Court provided both
    defense counsel and Chaudhry ample opportunity to speak on his behalf. Chaudhry’s
    10
    contention that he should have been allowed to speak earlier, while the Court was making
    legal and factual findings, and as his defense counsel was presenting arguments, is
    without merit. The Court personally addressed Chaudhry prior to sentencing, providing
    him with the opportunity to present any mitigating evidence on his behalf, and placed no
    limitation on Chaudhry’s remarks. Rule 32 requires no more.
    VI.
    Finally, Chaudhry presents a claim on appeal based on ineffective assistance of
    trial counsel. It is well settled that such claims should be raised in collateral proceedings,
    particularly when, as in this case, the record is insufficient for this Court’s review. See
    United States v. Thornton, 
    327 F.3d 268
    , 271 (3d Cir. 2003) (citing Massaro v. United
    States, 
    538 U.S. 500
    (2003)). We thus decline to address Chaudhry’s arguments based on
    ineffective assistance of counsel.2
    2
    Chaudhry argues that he was denied his right to a fair trial because the
    Government failed to preserve exculpatory evidence allegedly contained in his “initial
    conversations” with Cheergrlsam. Appellant Br. at 47. We reject this argument. As
    discussed in Section 
    IV.A., supra
    , the Government was able to refute the defense that
    earlier, exculpatory communications between Chaudhry and Cheergrlsam existed, and
    thus was under no obligation to “preserve” such communications. In addition, for the
    first time in his reply brief, Chaudhry contends that the District Court committed plain
    error in failing to instruct the jury regarding the spoliation of evidence. Appellant Reply
    Br. at 23-25. Chaudhry waived any such argument by failing to raise it in his opening
    brief. See, e.g., Laborers’ Int’l Union v. Foster Wheeler Corp., 
    26 F.3d 375
    , 398 (3d Cir.
    1994).
    Chaudhry also asks this Court to “take into account his special circumstances,
    particularly his prior history and characteristics,” and afford him some relief under the
    Second Chance Act, 18 U.S.C. § 3624. Appellant Br. at 60. This request is not properly
    before this Court. Section 3624(b) provides that federal prisoners serving a term of
    11
    VII.
    For the reasons stated, we will affirm the judgment of the District Court in all
    respects.
    imprisonment of more than a year may receive “credit” toward the prisoner’s term of
    imprisonment of up to 54 days per year, subject to a determination by the Bureau of
    Prisons, at the end of the first year of the prison term, that the prisoner had demonstrated
    exemplary behavior. Finally, all of Chaudhry’s arguments not specifically addressed are
    without merit.
    12
    

Document Info

Docket Number: 07-4540

Citation Numbers: 321 F. App'x 119

Filed Date: 4/6/2009

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

Authorities (20)

United States v. Danny Bass , 54 F.3d 125 ( 1995 )

United States v. Leonard Watson A/K/A 'Step' , 489 F.2d 504 ( 1973 )

Frank M. Miller, Jr. v. Peter J. Fenton, Superintendent, ... , 796 F.2d 598 ( 1986 )

United States v. Joseph Cusumano , 943 F.2d 305 ( 1991 )

United States v. Josette Jacobs , 431 F.3d 99 ( 2005 )

United States v. Hemant Lakhani , 480 F.3d 171 ( 2007 )

United States v. Anthony J. Pivorotto, John Robert Woods. ... , 986 F.2d 669 ( 1993 )

United States v. Rodolfo Bethancourt , 65 F.3d 1074 ( 1995 )

United States v. Linette Perez, United States of America v. ... , 280 F.3d 318 ( 2002 )

United States of America, in No. 81-1020 v. Jannotti, Harry ... , 673 F.2d 578 ( 1982 )

United States v. Gambino, Rosario, Erasmo Gambino, Antonio ... , 788 F.2d 938 ( 1986 )

United States v. Michael Benjamin Thornton, Michael Thornton , 327 F.3d 268 ( 2003 )

United States v. Michael Newman and Frank X. Gaca. Appeal ... , 476 F.2d 733 ( 1973 )

laborers-international-union-of-north-america-afl-cio-in-no-93-5208-v , 26 F.3d 375 ( 1994 )

Brady v. Maryland , 83 S. Ct. 1194 ( 1963 )

Hampton v. United States , 96 S. Ct. 1646 ( 1976 )

Miranda v. Arizona , 86 S. Ct. 1602 ( 1966 )

Colorado v. Connelly , 107 S. Ct. 515 ( 1986 )

United States v. Dunnigan , 113 S. Ct. 1111 ( 1993 )

Massaro v. United States , 123 S. Ct. 1690 ( 2003 )

View All Authorities »