United States v. Shukri, Wahid H. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2473
United States of America,
Plaintiff-Appellee,
v.
Wahid Shukri,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 14--David H. Coar, Judge.
Argued January 4, 2000--Decided March 15, 2000
Before Cudahy, Kanne and Diane P. Wood, Circuit
Judges.
Kanne, Circuit Judge. Wahid Shukri was arrested
and convicted for his participation in a string
of cartage thefts. He now presents two issues on
appeal. First, he argues that the district court
wrongly denied his motion in limine to exclude
inculpatory hearsay evidence under Rule 804
(b)(3) of the Federal Rules of Evidence. Second,
he argues that his trial counsel was so
incompetent that he was denied the right to
effective assistance of counsel as guaranteed by
the Sixth Amendment. The district court properly
admitted the inculpatory hearsay statements
despite Shukri’s motion in limine, and Shukri’s
counsel was not constitutionally defective. We
affirm Shukri’s conviction.
I. History
During the winter of 1997-98, the FBI tracked a
string of merchandise thefts around the Chicago
suburbs, including the theft of a trailer load of
Black and Decker appliances from a lot in Alsip,
Illinois, on January 5, 1998. Luckily for law
enforcement, the trailer was equipped with a
tracking device, and the FBI traced the device to
nearby Orland Park, Illinois. The tracking device
led the FBI to a neighborhood filled with storage
warehouses, so the FBI spent several days
canvassing the area in search of the trailer. The
FBI checked every warehouse except one guarded by
a particularly recalcitrant custodian who refused
to permit them entry. Having found nothing inside
the other warehouses in the vicinity, the FBI
scouted the perimeter of the unsearched warehouse
awaiting the arrival of the thieves, who the FBI
predicted would return to reclaim their loot.
Shortly thereafter, on January 7, 1998, Wahid
Shukri and his associates Jihad Kartoum and Abed
Burkan appeared on the scene.
When the FBI spotted them, Shukri and his
friends were feverishly loading a rental truck
with Black and Decker appliances stored in the
warehouse. Upon further investigation, the FBI
discovered that the threesome possessed 1,900
cartons of stolen merchandise, worth more than
$100,000, comprising goods taken in four separate
thefts during the previous two months. Plastic
shrink wrapping and product labels were strewn
all about the warehouse, and Shukri had $2,800
cash in his wallet. FBI agents arrested Shukri,
Kartoum and Burkan for possession of stolen
merchandise.
During interrogation, Shukri waived his Miranda
rights and immediately pointed the finger at
Kartoum and Burkan. He insisted that his
complicity was limited to assisting them move the
merchandise from the warehouse to their truck.
Kartoum and Burkan, he claimed, arrived earlier
that day at his store in Chicago and abruptly
asked him for help moving some "stuff." Eager to
assist, Shukri left his store and accompanied
them to several storage facilities, including one
at which Shukri proffered his driver’s license to
rent a space under his name. Shukri admitted that
he had a "bad feeling" and knew that the "stuff"
was stolen merchandise because Kartoum told him
that the police were interested in inspecting the
warehouse and they had to hide the goods
immediately.
Shukri and Kartoum were released on bond on
January 13, 1998, and Burkan was released on bond
on April 9, 1998. During this pretrial release,
Kartoum and Burkan wasted little time returning
to cartage theft, now without Shukri’s
participation, and stole three new loads of
merchandise. On May 7, 1998, the FBI arrested
Kartoum and Burkan again, along with Naser Al-
Qaisi, Kartoum’s brother-in-law. Although Shukri
was uninvolved, Al-Qaisi made several post-arrest
statements to the FBI probative of Shukri’s
involvement in the thefts leading up to his
January 7 arrest.
First, Al-Qaisi said that Kartoum confided to
him that Kartoum and Burkan had been stealing
goods and storing them in the Orland Park
warehouse, and that Shukri had purchased stolen
merchandise from Kartoum, including paper
products seized by the FBI on January 7, 1998.
Kartoum admitted that he, Burkan and Shukri were
trying to remove the stolen goods from the Orland
Park warehouse and avoid police discovery when
the trio was arrested. Second, Al-Qaisi testified
that he had listened to Kartoum and Burkan
discuss whether they should reimburse Shukri for
the stolen goods that Shukri had bought from them
but were seized by the FBI on January 7.
On May 28, 1998, a federal grand jury indicted
Shukri, Kartoum and Burkan on three counts of
receipt of stolen property in violation of 18
U.S.C. sec. 371, and one count of conspiracy to
receive and possess stolen property in violation
of 18 U.S.C. sec. 659. On October 14, 1998, the
grand jury returned a superseding indictment
adding three counts of receipt of stolen property
against Burkan and Kartoum relating to their
arrest on May 7, 1998. Kartoum fled the country
sometime in October 1998, and Burkan pleaded
guilty to conspiracy on December 3, 1998.
Meanwhile, Shukri waived his right to a jury
trial, pleaded not guilty to the charges against
him and proceeded to trial on January 27, 1999.
Since Kartoum had fled the country and was
unavailable to testify at trial, the government
moved in limine to admit Al-Qaisi’s hearsay
testimony regarding Kartoum’s statements under
Rule 804(b)(3) of the Federal Rules of Evidence.
Shukri responded with his own motion in limine to
bar admission of Al-Qaisi’s testimony. Shukri’s
counsel admitted that Kartoum’s remarks to Al-
Qaisi were statements against Kartoum’s penal
interest, but contended that the statements
lacked "corroborating circumstances" and thus did
not qualify for the hearsay exception under Rule
804(b)(3). The district court denied Shukri’s
motion in limine and admitted Al-Qaisi’s
testimony at trial.
During Shukri’s bench trial, Shukri’s counsel
did not object when the government asked Shukri
several times on cross-examination if Shukri had
asked Kartoum why they had to move the
merchandise posthaste on January 7. After Shukri
testified that the $2,800 cash in his wallet at
the time of his arrest was unrelated to the
stolen merchandise, the government asked whether
Shukri had $2,800 in his pocket at that moment.
Shukri’s counsel again did not object. On
February 1, 1999, the district court convicted
Shukri of conspiracy and three counts of
possession of stolen property, and sentenced him
to five months imprisonment and three years
supervised release. Shukri now appeals.
II. Analysis
Shukri presents two claims on appeal: (1) the
district court erred by denying his motion in
limine to bar Al-Qaisi’s testimony; (2) he was
denied his right to effective assistance of
counsel under the Sixth Amendment.
A. Shukri’s Motion in Limine and Rule
804(b)(3)
Shukri and the government agree that Kartoum’s
statements are hearsay statements admitted for
the truth of the matter asserted, and hearsay
statements are inadmissible as a general rule
under Rule 802 of the Federal Rules of Evidence.
See Fed. R. Evid. 802. However, Rule 804(b)(3)
permits admission of a hearsay statement "which
was at the time of its making . . . so far tended
to subject the declarant to civil or criminal
liability . . . that a reasonable person in the
declarant’s position would not have made the
statement unless believing it to be true." Fed.
R. Evid. 804(b)(3). For the Rule 804(b)(3)
exception to apply, the proponent of an
inculpatory hearsay statement must show that (1)
the declarant is unavailable to testify at trial;
(2) the statement was against the declarant’s
penal interest; and (3) corroborating
circumstances bolster the statement’s
trustworthiness. See American Auto. Accessories,
Inc. v. Fishman, 175 F.3d 534, 540 (7th Cir.
1999); United States v. Garcia, 897 F.2d 1413,
1420 (7th Cir. 1990). We review the district
court’s decision to admit hearsay testimony under
Rule 804(b)(3) for abuse of discretion. See
United States v. Amerson, 185 F.3d 676, 681 (7th
Cir. 1999)./1
Shukri acknowledged that Kartoum fled the
country before trial and was unavailable to
testify himself. Furthermore, Shukri admitted in
his motion in limine that Kartoum’s statements
were "most definitely against Kartoum’s penal
interest." Indeed they were, because Kartoum
discussed his intimate knowledge of and
involvement in the multiple thefts for which both
he and Shukri were arrested. See United States v.
York, 933 F.2d 1343, 1361 (7th Cir. 1991)
(holding that statements demonstrating inside
knowledge of the crime are against penal
interest); see also United States v. Barone, 114
F.3d 1284, 1297 (1st Cir. 1997).
Although Shukri’s counsel unequivocally waived
the argument that Kartoum’s statements were not
against penal interest, Shukri insists that
waiver does not apply to him on appeal because
his trial lawyer acted without consulting him and
he personally would not have agreed. Shukri cites
for support a line of cases which hold that
certain personal rights can be waived only with
the knowing and personal approval of the
defendant himself. See, e.g., United States v.
Elkins, 176 F.3d 1016, 1021 (7th Cir. 1999)
(waiver of right to plead not guilty); United
States v. Robinson, 8 F.3d 418, 421 (7th Cir.
1993) (waiver of jury trial); United States v.
Taylor, 113 F.3d 1136, 1140 (10th Cir. 1997)
(waiver of right to counsel). Shukri, however,
provides no convincing reason that arguments
under Rule 804(b)(3) are analogous to, and ought
to be included among, the few fundamental rights
for which a defendant himself must waive
personally and knowingly. See United States v.
Boyd, 86 F.3d 719, 724 (7th Cir. 1996) ("No one
believes that the subtleties of the Federal Rules
of Evidence--which often elude capable lawyers--
are meet for decision by the defendant.").
Thus, Shukri’s sole remaining hope is that
Kartoum’s statements to Al-Qaisi were not
supported by "corroborating circumstances."
However, the evidence presented at Shukri’s trial
substantiates the truthfulness of Kartoum’s
statements to Al-Qaisi. Carrying $2,800 in cash,
Shukri suddenly left his store in the middle of
the day to help Kartoum and Burkan rent storage
space and move merchandise from the Orland Park
warehouse. Shukri assisted Kartoum and Burkan,
even though he felt that the goods were stolen
and knew that police were investigating.
Furthermore, Kartoum and Al-Qaisi shared a
confidential relationship within which candor is
presumed; they are brothers-in-law and were
confederates in a theft conspiracy at the time of
Kartoum’s statements. Statements between
confidants are generally more reliable and
trustworthy because such relationships bespeak
candor and confidence. See United States v.
Robbins, 197 F.3d 829, 840 (7th Cir. 1999)
(finding trustworthy under Rule 804(b)(3)
statements spoken to a fiancee); see also United
States v. Matthews, 20 F.3d 538, 546 (2d Cir.
1994) (finding trustworthy statements made to
declarant’s girlfriend). Shukri was closely
involved with Kartoum and Burkan in possessing
and transporting stolen goods, and Kartoum’s
statements were consistent with Shukri’s
involvement.
Nevertheless, Shukri argues that Kartoum is
related by marriage to Shukri and therefore would
have been unlikely to make statements that
inculpate his relative. In cases where the
hearsay declarant simultaneously confessed to
wrongdoing and exculpated another party, we have
considered the relationship between the declarant
and the exculpated party in deciding whether
corroborating circumstances existed under Rule
804(b)(3). See American Auto., 175 F.3d at 541-
42; United States v. Nagib, 56 F.3d 798, 805 (7th
Cir. 1995); United States v. Garcia, 986 F.2d
1135, 1140 (7th Cir. 1993). Conversely, for
inculpatory hearsay statements against the
declarant’s penal interest, we have considered
whether the declarant was trying to deflect blame
or curry favor with authorities by incriminating
others. See Garcia, 897 F.2d at 1421. The concern
in these cases was that the declarant might have
lied for ulterior purposes--to exculpate an
associate or win lenient treatment from law
enforcement. But here, Kartoum had no reason to
think that his comments would affect Shukri at
all. Kartoum was speaking in private to his
confederate and brother-in-law, not to law
enforcement or an adversary, and there was
minimal chance that he would have considered the
possibility that his comments would inculpate
Shukri before remarking to Al-Qaisi. See Robbins,
197 F.3d at 838 (finding reliable under Rule
804(b)(3) statements made privately to
declarant’s fiancee); United States v. Curry, 977
F.2d 1042, 1056 (7th Cir. 1992) (deeming reliable
statements made privately to an acquaintance);
see also Matthews, 20 F.3d at 546.
Shukri also claims that Kartoum’s hearsay
statements were particularly unreliable because
Al-Qaisi was testifying pursuant to plea
agreement and trying to curry favor with law
enforcement. Shukri here misapprehends the
hearsay exception’s rationale. Hearsay testimony
is presumptively unreliable under the common law
because the opposing party has no opportunity to
cross-examine and test the declarant’s
truthfulness under oath before the factfinder.
See 5 John H. Wigmore, Evidence in Trials at
Common Law sec. 1368, at 37, sec. 1420, at 251
(rev. ed. 1974) ("The theory of the hearsay rule
. . . is that the many possible sources of
inaccuracy and untrustworthiness which may lie
underneath the bare untested assertion of a
witness can best be brought to light and exposed,
if they exist, by the test of
cross-examination."); McCormick on Evidence sec.
245, at 728 (Edward W. Cleary ed., 3d ed. 1984).
The Federal Rules of Evidence, however, permit
hearsay testimony when the declarant’s statement
bears indicia of reliability such that the
opposing party’s inability to cross-examine the
declarant is less troubling. For example, Rule
804(b)(3) embodies a judgment that statements
against the declarant’s interest are reliable
because people do not inculpate themselves unless
they are telling the truth. See Fed. R. Evid.
804(b)(3) Advisory Comm. Note; see also Chambers
v. Mississippi, 410 U.S. 284, 299 (1973); York,
933 F.2d at 1360. We need not assess the
truthfulness of the hearsay witness, Al-Qaisi,
because Shukri had ample opportunity to cross-
examine Al-Qaisi at trial. On cross-examination,
the opposing party can challenge the hearsay
witness’s truthfulness under oath and test
whether he is telling the truth that the
declarant made the alleged statement. In fact, on
cross-examination, Shukri’s lawyer did exactly
that, attacking Al-Qaisi’s truthfulness and
questioning whether Kartoum actually made those
statements to Al-Qaisi. The key for Rule
804(b)(3), and indeed any hearsay exception, is
the reliability of the declarant’s original
statement, not the reliability of the hearsay
witness. The district court properly admitted Al-
Qaisi’s testimony under Rule 804(b)(3).
B. Ineffective Assistance of Counsel
Shukri also contends that he was deprived of
effective assistance of counsel at trial in
violation of the Sixth Amendment. Whether counsel
has rendered constitutionally ineffective
assistance is a mixed question of law and fact,
and we review de novo. See Stoia v. United
States, 109 F.3d 392, 395 (7th Cir. 1997). As a
preliminary matter, we address Shukri’s claim of
ineffective counsel on direct appeal, even though
he did not raise that claim before the district
court, because both parties so request and
Shukri’s claim can be conclusively decided from
the trial record. See United States v. Brooks,
125 F.3d 484, 496 (7th Cir. 1997); United States
v. Fish, 34 F.3d 488, 491 n.1 (7th Cir. 1994).
Shukri cites only errors made at trial or
otherwise recorded in the appellate record, which
require no further evidentiary development.
To prevail under Strickland v. Washington, 466
U.S. 668, 687 (1984), Shukri must show that (1)
his trial counsel’s performance fell below
objective standards for reasonably effective
representation; and (2) the deficient performance
prejudiced his defense. See also United States v.
Draves, 103 F.3d 1328, 1335 (7th Cir. 1997). The
Strickland test is "’highly deferential’ to
counsel, presuming reasonable judgment and
declining to second guess strategic choices."
United States v. Williams, 106 F.3d 1362, 1367
(7th Cir. 1997). We apply a strong presumption
that "decisions by counsel fall within a wide
range of reasonable trial strategies." United
States v. Lindsay, 157 F.3d 532, 535 (7th Cir.
1998).
First, Shukri claims that his counsel failed to
research adequately the law governing the
admissibility of statements against penal
interest. Shukri argues that his counsel
neglected to cite United States v. Garcia, 897
F.2d 1413 (7th Cir. 1990), in his motion in
limine and therefore relied on outdated law. This
omission, however, was unremarkable because
Shukri’s attorney instead cited United States v.
Harty, 930 F.2d 1257 (7th Cir. 1991), which sets
forth the Garcia test for Rule 804(b)(3). Shukri
also complains that his lawyer failed to argue
that the district court must exclude those of
Kartoum’s statements that were not against penal
interest under Williamson v. United States, 512
U.S. 594 (1994). This failure was inconsequential
because Shukri’s lawyer conceded that all
Kartoum’s statements were "most definitely
against Kartoum’s penal interest" under Rule
804(b)(3). The strategic decision by Shukri’s
counsel to waive this argument was a reasonable
tactic as well. Kartoum’s statements were against
Kartoum’s penal interest, just as Shukri’s lawyer
conceded, and Shukri’s lawyer chose instead to
focus his motion in limine on the stronger
argument that there were not corroborating
circumstances to support Kartoum’s statements.
Although these maneuvers by Shukri’s lawyer were
ultimately unsuccessful, they were reasonable
choices given the circumstances.
Second, Shukri contends that he received
ineffective assistance of counsel because his
lawyer did not object to several questions that
the government asked him during cross-
examination. Shukri protests that his counsel’s
failures to object left Shukri like a "babe-in-
the-middle-of-the-woods" at trial. The government
asked Shukri several times, without objection,
whether Shukri had asked Kartoum why they needed
to move the merchandise immediately. When Shukri
testified that the $2,800 in his wallet at the
time of the arrest was unrelated to the stolen
merchandise, the government without objection
asked Shukri how much money Shukri had in his
wallet at that moment. Shukri claims that these
failures to object generated confusion and left
the court with a distorted view of the facts.
The failures to object were well within the
ambit of reasonable trial strategy and do not
constitute ineffective performance of counsel.
Shukri’s lawyer reasonably chose not to object
because the questions about which Shukri
complains were harmless and had little impact on
the outcome of the trial. A trial lawyer need not
object to every irrelevant or redundant question
just because he can, and Shukri has not shown
that his trial counsel’s failures to object were
the result of incompetence rather than strategic
restraint. Furthermore, Shukri cannot establish
prejudice stemming from the failures to object.
In a bench trial, we assume that the district
court was not influenced by evidence improperly
brought before it unless there is evidence to the
contrary. See Ashford v. Gilmore, 167 F.3d 1130,
1136 (7th Cir. 1999); United States v. Illinois,
546 F.2d 1298, 1304 (7th Cir. 1976). The district
court, serving as factfinder in this bench trial,
did not appear confused by the government’s
questioning, and Shukri does not cite any
evidence of confusion. The questions about which
Shukri complains may have been redundant or
irrelevant, but the absence of objection was not
unreasonable or prejudicial, and Shukri’s claim
of ineffective counsel therefore fails.
III. Conclusion
For the foregoing reasons, we AFFIRM Shukri’s
conviction and the district court’s denial of
Shukri’s motion in limine.
/1 The government’s brief also discusses the
requirements of the Confrontation Clause for
admission of hearsay testimony, but we address
only Rule 804(b)(3) here because Shukri did not
argue in his motion in limine or his appellant’s
brief that the Confrontation Clause bars Al-
Qaisi’s testimony. See American Auto., 175 F.3d
at 541 (distinguishing challenges under Rule
804(b)(3) from challenges under the Confrontation
Clause).