United States v. Hussien Eltareb ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 23 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 18-50362
Plaintiff-Appellee, D.C. No. 5:17-cr-00016-JGB-2
v.
MEMORANDUM*
HUSSIEN FAWAS ELTAREB,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted August 13, 2020
Pasadena, California
Before: O’SCANNLAIN, CALLAHAN, and COLLINS, Circuit Judges.
Hussien Eltareb appeals his conviction, after a bench trial, of distribution of
at least 50 grams of methamphetamine (Count 2), 21 U.S.C. § 841(a)(1),
(b)(1)(A)(viii); conspiracy to do the same (Count 1), id. § 846; and using or
possessing a firearm in furtherance of a drug trafficking crime (Count 3), 18 U.S.C.
§ 924(c)(1)(A)(i). We affirm Eltareb’s conviction and sentence.
1. Reviewing de novo, United States v. Shorty, 741 F.3d 961, 965 (9th Cir.
2013), we conclude that the district court properly accepted Eltareb’s jury-trial
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
waiver at the time it was made. Because Eltareb waived a jury trial in writing, the
Government consented, and the district court approved, the requirements of
Federal Rule of Criminal Procedure 23(a) were all satisfied, thereby “creat[ing] a
presumption that the waiver is a voluntary, knowing and intelligent one.” United
States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985); see also United States v.
Bishop, 291 F.3d 1100, 1113 (9th Cir. 2002). We have held that this presumption
does not apply where the district court is “on notice” or has “reason to suspect”
that the jury-trial waiver may not be voluntary, knowing, and intelligent at the time
the court is asked to approve the waiver, and that in such circumstances the court
may need to conduct “an in-depth colloquy” before accepting such a waiver. See
United States v. Christensen, 18 F.3d 822, 825–26 (9th Cir. 1994). In challenging
his jury-trial waiver, however, Eltareb relies solely on his post-verdict evidentiary
submissions and does not point to anything in the record that would have alerted
the district court, at the time it accepted the waiver, that any further colloquy was
warranted. The district court therefore did not err in accepting Eltareb’s waiver at
the time it was made. See Cochran, 770 F.2d at 851 & n.1.
Eltareb’s opening brief implicitly assumes, without argument, that the
district court nonetheless should have considered his post-verdict evidence in
connection with his new trial motion. The district court specifically declined to
consider the evidence in that posture, holding that, under Cochran, any such
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additional evidence attacking the jury-trial waiver could only “be presented
through habeas corpus proceedings.” In reaching this conclusion, the district court
pointed to Cochran’s statement that, if a defendant “wishes to pursue his claim that
the waiver was not made voluntarily, knowingly, or intelligently by introducing
facts outside the record[,] he must do so in a habeas corpus proceeding, not a direct
appeal.” 770 F.2d at 851 n.1. Given this specific holding, Eltareb could not
properly rely on that evidence in attacking the denial of the new trial motion on
appeal without explaining in his opening brief why the district court was incorrect
in explicitly refusing to consider that evidence. Eltareb’s opening brief, however,
does not even mention this latter holding at all, much less explain why it was
wrong. Indeed, Eltareb did not present any such argument until his reply brief,
which was after the Government’s answering brief had already noted the omission
and contended that the point had been forfeited. We agree that, under these
circumstances, Eltareb forfeited the point. See Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically and
distinctly argued and raised in a party’s opening brief are waived.”). Accordingly,
we express no view as to whether the district court’s reading of Cochran on this
point was correct.
2. We reject Eltareb’s contention that the district court committed reversible
error by admitting the testimony of Senior Deputy Jacob Holt and ATF Special
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Agent Rustin Wayas. The parties disagree as to whether the alleged errors should
be reviewed for abuse of discretion or only for plain error, but we need not resolve
this dispute. Even assuming that the abuse-of-discretion standard applies, there
was no prejudicial error.
a. Holt’s testimony as to the structure and operations of the Hells Angels
organization was not inadmissible profile or character evidence. See, e.g., United
States v. Murillo, 255 F.3d 1169, 1176 (9th Cir. 2001), overruled on other grounds
as recognized by United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007).
The same is true of Wayas’s testimony about the nature of large drug-trafficking
transactions and the possession of firearms in connection with such transactions.
See, e.g., United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997)
(“[T]estimony that drug traffickers do not entrust large quantities of drugs to
unknowing transporters is not drug courier profile testimony.”), overruled on other
grounds as recognized by United States v. Valencia-Lopez, 971 F.3d 891, 901 (9th
Cir. 2020). Their testimony supplied relevant context for understanding the actions
of Eltareb and his co-defendant Brian Henson during the drugs-for-guns
transaction, and that testimony bears no resemblance to the sort of profile evidence
condemned in United States v. Wells, 879 F.3d 900, 918, 920–21 (9th Cir. 2018)
(district court erred by admitting testimony about the profile of “individuals who
would perpetrate a workplace targeted homicide,” which the Government then
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used “to ‘fit’ [the defendant’s] personal characteristics”). The district court
likewise did not abuse its discretion in concluding that Holt’s testimony was not
inadmissible under Federal Rule of Evidence 403. See, e.g., United States v.
Torralba-Mendia, 784 F.3d 652, 663 (9th Cir. 2015) (evidence about an
“organization’s methods” can help to “prove the existence of a conspiracy and put
[the defendant’s] actions in context”); see also United States v. Sepulveda-Barraza,
645 F.3d 1066, 1072–73 (9th Cir. 2011).
b. There was no abuse of discretion in declining to exclude Holt’s and
Wayas’s testimony under Federal Rule of Evidence 704(b). The fact that this
testimony supported an inference of Eltareb’s knowledge and intent—even a very
strong inference—is not enough to violate Rule 704(b). Rather, Rule 704(b) is
violated only if the testimony stated an opinion that “would necessarily compel the
conclusion” that the defendant had “the mental state . . . that constitutes an element
of the crime charged.” United States v. Morales, 108 F.3d 1031, 1035, 1037 (9th
Cir. 1997) (en banc) (emphasis added). Although Wayas’s testimony occasionally
and unwisely strayed into using phrases that arguably suggest a direct opinion that
Eltareb possessed the gun for defensive purposes, that still does not directly
correspond to the mental state for any of the crimes charged. Rather, even
accepting that Wayas stated an opinion that Eltareb subjectively had the asserted
defensive purpose in possessing the gun, a further inference is necessary in order
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to establish the requisite mens rea that “constitutes an element” of either of “the
crime[s] charged.” FED. R. EVID. 704(b). Because the district court could
reasonably conclude that the ultimate mental state was not “necessarily
compel[led]” by Wayas’s testimony, there was no abuse of discretion. See
Morales, 108 F.3d at 1037; see also Murillo, 255 F.3d at 1178.
c. In any event, even if Holt’s and Wayas’s testimony should have been
excluded, there was no reversible error. The district court specifically concluded
that, even apart from Holt’s and Wayas’s testimony, “there was sufficient
circumstantial evidence to prove beyond a reasonable doubt that Eltareb intended
to help Henson perform the drug transaction prior to its completion,” and also that
the additional evidence concerning Eltareb’s possession of the firearm “was
sufficient to convict Eltareb of 18 U.S.C. § 924(c).”1 And in the context of this
bench trial, these statements confirm that the trier of fact would have convicted
even if this testimony had been excluded. On this record, we perceive no grounds
for finding reversible error in connection with the admission of Holt’s and Wayas’s
testimony.
3. On the specific record of this case, the district court did not commit
1
Reviewing de novo, see United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir.
1994), we agree with the district court that, with or without the testimony of Holt
and Wayas, the evidence was sufficient to permit the trier of fact to convict
Eltareb. The district court therefore properly denied his motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29.
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procedural error at sentencing by failing expressly to address Eltareb’s various
arguments for a lower sentence. In its earlier ruling denying Eltareb’s motion for a
new trial, the district court had already held that the evidence at trial did not
support a derivative sentencing entrapment defense because Henson “did not
express any hesitancy or reservations” about adding methamphetamine to the deal
and because Henson “repeatedly suggested increasing the transaction” and
demonstrated a “capability to procure an increased amount of drugs.” Given these
conclusions as to Henson’s role in increasing the scale of the transaction, the
district court had already sufficiently set forth its disagreement with Eltareb’s
arguments that the Government had “inflated” the quantity of drugs. As a result,
the mandatory minimum sentence on all counts was 180 months. Because that is
the sentence that the district court imposed, Eltareb’s remaining complaints about
the district court’s explanation for the sentence necessarily fail. Spears v. United
States, 555 U.S. 261, 266–67 (2009).
AFFIRMED.
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