United States v. Fakih , 424 F. App'x 202 ( 2011 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-4768
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ABDALLAH HUSSEIN FAKIH, a/k/a Abdullah Fakih,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville.         Richard L.
    Voorhees, District Judge. (5:08-cr-00021-RLV-DCK-4)
    Argued:   March 23, 2011                  Decided:   April 19, 2011
    Before MOTZ and WYNN, Circuit Judges, and Ronald Lee GILMAN,
    Senior Circuit Judge of the United States Court of Appeals for
    the Sixth Circuit, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
    CAROLINA, INC., Asheville, North Carolina, for Appellant.    Amy
    Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
    North Carolina, for Appellee.    ON BRIEF: Claire J. Rauscher,
    Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
    INC.,  Asheville,   North  Carolina,  Cecilia   Oseguera,  Emily
    Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
    Charlotte, North Carolina, for Appellant.     Anne M. Tompkins,
    United States Attorney, Adam Morris, Assistant United States
    Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    A jury convicted Abdallah Hussein Fakih of bank robbery and
    aiding     and    abetting           the   same,   in     violation         of    
    18 U.S.C. §§ 2113
    (a)       and    2,     and    of   armed   bank    robbery      and      aiding       and
    abetting the same, in violation of 
    18 U.S.C. §§ 2113
    (d) and 2.
    The   district         court      sentenced    Fakih      to    a   235-month          term    of
    imprisonment on each count, to be served concurrently, followed
    by    three      years       of      supervised     release.            Fakih          appeals,
    challenging both his convictions and sentence.                          For the reasons
    that follow, we affirm.
    I.
    On   September         26,     2007,    Demond     Dixon      (“Demond”),         William
    Donald Dixon (“Donnie”), and Anthony Fleetwood robbed the Bank
    of America in Denver, North Carolina.                          Each man, armed with a
    gun, entered the premises, held the tellers and customers at
    gunpoint, threatened to kill them, robbed the bank, and left.
    The   police     spotted       the     robbers,    who    in     response        ditched      the
    money and        some    belongings        (including     a     pair   of    gloves),         and
    fled.      The three robbers subsequently broke into the house of
    Jimmy Woods, forced him at gunpoint into his van, and attempted
    to escape.        After Mr. Woods somehow jumped out of the van, the
    robbers crashed and the police then apprehended them.
    3
    All    three        robbers     testified          to    Fakih’s       substantial
    involvement in the crime.              Indeed, all three testified that the
    robbery was Fakih’s idea.             According to them, Fakih, who in 2007
    worked with Demond at a Fuel Pizza Café, proposed to Demond and
    his brother, Donnie, that they all rob a bank.                                    Fakih held
    himself      out    as     having     particularized           knowledge          of     banks,
    explaining that his father had worked at a bank.
    On the day prior to the robbery, Fakih picked Donnie up at
    a     Charlotte      bus      terminal     after          Donnie     rode         down       from
    Philadelphia.         Fakih put Donnie up in a hotel room for the
    night.        At    approximately        the       same     time,     Demond           and   his
    girlfriend, Eurania Young, picked Fleetwood up in Georgia and
    they    drove      together      to   North       Carolina     to    join    the        others.
    Fleetwood’s girlfriend, Valnissi Jackson, also met up with the
    group.
    Shortly      before    the     robbery,      Fakih,     the        Dixon    brothers,
    Fleetwood, Young, and Jackson met at a BP Mini Mart in Denver,
    North Carolina.            The Government introduced surveillance video
    showing Fakih’s BMW and Jackson’s gray PT Cruiser parked at the
    gas    station.          While    there,      anticipating          the    eventual          bank
    robbery, Fakih said to the group:                  “Are y’all ready to do this?”
    Then, Fakih left the group and went to case the bank.                                   He
    entered the bank at 10:51 a.m., fumbled with his wallet for less
    than a minute, and then left.                  The bank tellers, who testified
    4
    at trial, did not recognize Fakih as a regular customer and did
    not speak to him.            They viewed his behavior as odd, but did not
    regard it as presaging a bank robbery.
    After casing the bank, Fakih returned to the group waiting
    at the    BP    Mini       Mart   and    gave       the    men    the   “green      light”     to
    proceed with         the    robbery,      specifically           noting     the    lack   of    a
    security guard on the bank’s premises.                           The plan was for Young
    and Jackson to drop off the Dixon brothers and Fleetwood at the
    bank, and, after they robbed it, Fakih would pick them up.                                   The
    robbery occurred ten minutes after Fakih cased the bank.
    As the designated getaway driver, Fakih waited in his car
    behind the bank.             There, he encountered a police officer who
    asked if Fakih had seen anything suspicious; Fakih answered no.
    Fakih then drove away and never picked up the robbers, leaving
    them without a getaway driver.                        The three robbers were thus
    forced to run away from the bank; after they did so, they broke
    into   Mr.    Woods’s       house,      Demond      then     called     Fakih,      but   Fakih
    purported      to    renounce     his     involvement            in   the   enterprise       (“I
    don’t know what you’re talking about”) and hung up on Demond.
    When    the    police      arrested          Fakih,       he   waived      his   Miranda
    rights and agreed to answer questions related to the incident.
    He confirmed many of the facts described above (including his
    encounter with the police officer in the bank parking lot during
    the robbery) but did not admit to casing the bank or to any
    5
    other involvement in the robbery.       Fakih proceeded to trial on
    the two counts of bank robbery and assault in the commission of
    a bank robbery.    After a two-day trial, a jury deliberated for
    forty-minutes and then found Fakih guilty of both crimes.             The
    district   court   sentenced   Fakih   to   two   235-month   terms   of
    imprisonment, to run concurrently.
    II.
    Fakih raises two challenges to his convictions.          We reject
    both.
    A.
    First, Fakih contends that the district court should have
    granted his motion for a mistrial after the prosecutor drew the
    jury’s attention to Fakih’s pre-trial detention.
    Fakih premises this challenge on the following questions
    that the prosecutor asked Demond Dixon on redirect examination:
    Q:    Okay.   Before that time [i.e. when Demond first
    mentioned Fakih to the police], were you ever
    housed in the jail with [Fakih]?
    A:    Yes, I was in Lincoln County with him.
    Q:    So he was already under arrest.
    A:    They came and got him, I think, a week after we
    got arrested.
    Q:    So he was physically in jail in Lincoln County
    before you even --
    6
    At     this   point,   defense    counsel        objected    and   moved     for     a
    mistrial, which the court denied.                 Instead, the court offered
    the     defense    a   curative   instruction,        which    defense      counsel
    declined, fearing that it would draw undue attention to Fakih’s
    pre-trial custody.       Ultimately, the prosecutor promised to avoid
    this line of questioning in the future and, in fact, did so.
    Fakih now seeks reversal on the ground that the district court
    erred in denying his motion for a mistrial.
    We review the denial of a motion for mistrial for abuse of
    discretion.       United States v. Stockton, 
    349 F.3d 755
    , 762 (4th
    Cir. 2003).       To determine abuse of discretion, we consider:                   (1)
    whether the prosecutor’s remarks were improper and (2) whether
    the     remarks    “prejudicially        affected    defendant’s     substantial
    rights so as to deprive [him] of a fair trial.”                    
    Id.
         Since we
    have    previously     held   that   a    prosecutor’s      questions      about     a
    defendant’s       pre-trial   custody     are    “clearly     improper,”     United
    States v. Bennett, 
    984 F.2d 597
    , 608 (4th Cir. 1993), we proceed
    to evaluate prejudice.
    In assessing prejudice, we look to:                  “(1) the degree to
    which the prosecutor’s remarks have a tendency to mislead the
    jury and to prejudice the accused; (2) whether the remarks were
    isolated or extensive; (3) absent the remarks, the strength of
    competent     proof    introduced    to       established   the    guilt    of     the
    accused; and (4) whether the comments were deliberately placed
    7
    before the jury to divert attention to extraneous matters.”                      
    Id.
    (quoting United States v. Harrison, 
    716 F.2d 1050
    , 1052 (4th
    Cir. 1983)).
    As to the first prong, the degree of prejudice resulting
    from a single remark about a defendant’s custody is “minimal.”
    Bennett, 
    984 F.2d at 608
    .          This is so because “[i]n most trials,
    it is apparent that the defendant was arrested for the crime
    with   which    he    has   been   charged.       The   majority   of    criminal
    prosecutions     are   initiated    by   an   arrest.”      United      States   v.
    Harris, 
    703 F.2d 508
    , 512 (11th Cir. 1983).
    With respect to the second prong, Fakih concedes that the
    improper remarks were not “extensive,” but still contends they
    were not isolated.          See Appellant’s Br. at 23.        He is mistaken.
    In   Bennett,    we    considered    a   remark    about   pre-trial      custody
    “isolated” where the “government never raised the matter again
    and did not refer to it in closing argument.”                
    984 F.2d at 608
    .
    This holding compels the conclusion that the improper remarks in
    this case were also isolated, especially because the prosecutor
    promised not to ask another question about Fakih’s pre-trial
    custody and even offered to ask a “final question” to “get away
    8
    from” the subject.      The prosecutor never again mentioned Fakih’s
    custody, not even in closing argument. *
    As to the third prong, the Government offered overwhelming
    evidence to support the charges against Fakih.                Specifically, it
    offered the following evidence:               (1) four witnesses (Demond,
    Donnie, Fleetwood, and Young) testified to Fakih’s substantial
    involvement in the crime; (2) surveillance footage showed Fakih
    at the bank and showed his car at the BP Mini Mart with the car
    that   dropped   the   robbers   off;       (3)   phone   records   showed   that
    Fakih called Jackson about 50 times; (4) a pair of gloves found
    in Fleetwood’s pants matched gloves found in a box in Fakih’s
    car; (5) a police officer testified as to his encounter with
    Fakih near the bank’s premises at the time of the robbery; and
    (6) Fakih himself admitted to authorities his presence at the
    scene of the robbery at the time it occurred and his meeting
    with the Dixon brothers at the BP Mini Mart.
    *
    At oral argument, Fakih’s counsel suggested that the
    prosecutor elicited an additional reference to Fakih’s pre-trial
    custody.    The record does not bear this out.         When the
    prosecutor asked Fleetwood whether he had “any contact with
    [Fakih] since the day of the bank robbery,” Fleetwood replied:
    “No.   They had us in the same pod together, though.”        The
    prosecutor subsequently clarified his question:   “Well, I mean
    outside.” Fleetwood responded, “Oh, no, sir.” Fakih failed to
    object to Fleetwood’s answer at trial and it is clear that this
    remark -- initiated by Fleetwood as an after-thought to his
    answer to a proper question from the prosecutor -- was not a
    product of the prosecutor’s improper questioning.
    9
    Finally, as to the fourth prong, the prosecutor did not
    deliberately attempt to divert attention to extraneous matters.
    Rather,   the   prosecutor    sought    to    rebut   the   defense’s   cross-
    examination by suggesting that Demond may have fabricated his
    story together with Fleetwood and his brother Donnie.                     Thus,
    this prong also weighs in favor of the Government.
    Accordingly,     the     district       court    did   not   abuse     its
    discretion when it denied Fakih’s motion for a mistrial.
    B.
    Fakih’s second challenge to his conviction rests on the
    contention that the district court plainly erred in permitting
    the prosecutor to mention the box of gloves found in Fakih’s car
    without admitting the box into evidence.
    At oral argument, however, the Government alerted us to an
    exhibit list showing that the prosecutor had admitted as exhibit
    nine a “box of blue latex gloves” found in Fakih’s car on the
    second day of trial.        Thus, Fakih’s argument rests on a factual
    premise -- that the prosecutor failed to admit the box of gloves
    into evidence -- that was proven false.
    Moreover, even if the prosecution had failed to introduce
    the box of gloves into evidence, Fakih’s argument would fail.
    The officer who searched Fakih’s car testified that he found a
    box of rubber gloves in the trunk, and Fleetwood testified that
    he obtained the gloves from the inside of Fakih’s car.                    It is
    10
    not error for a prosecutor to refer to evidence (including a box
    of gloves) in closing argument where witnesses have testified as
    to its existence and location.
    III.
    Fakih next contends that the district court procedurally
    erred in sentencing him.      He argues that the court erred in two
    respects.
    A.
    The Presentence Report (PSR) states that Donnie Dixon told
    authorities “Fakih had two guns, a 9 mm and a .45 Ruger, and
    that he gave them to Demond” Dixon before the robbery.                  At
    sentencing, the district court relied on this fact, as supported
    by the PSR, to find that it was reasonably foreseeable to Fakih
    that the robbers, in attempting to escape, would injure, abduct,
    and carjack Mr. Woods.
    Fakih    now   asserts   that   the    district   court   procedurally
    erred by crediting the finding that Fakih “armed” the robbers in
    the PSR.    He cites our holding in United States v. Carter that,
    “[p]rocedural errors include . . . selecting a sentence based on
    clearly erroneous facts.”       
    564 F.3d 325
    , 328 (4th Cir. 2009)
    (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)).                He
    contends that the finding that he armed the robbers was clearly
    11
    erroneous   because     no   evidence     at    trial    supported      it.     The
    argument fails.
    Fakih did not offer any evidence to rebut the finding in
    the PSR.    Instead, he objected, in very general terms, to “those
    paragraphs that do not comport with the evidence at trial.”                      A
    “mere objection to the finding in a presentence report is not
    sufficient.”      United States v. Terry, 
    916 F.2d 157
    , 162 (4th
    Cir. 1990).      Rather, the “defendant has an affirmative duty to
    make a showing that the information in the presentence report is
    unreliable, and articulate the reasons why the facts contained
    therein are untrue or inaccurate.”             
    Id.
    Here, Fakih lodged a “mere objection” and failed to rebut
    this finding at sentencing with evidence of its unreliability or
    inaccuracy.      Accordingly, we cannot conclude that the sentencing
    court’s finding is clearly erroneous.                   Moreover, even though
    evidence at trial did not show that Fakih armed the robbers, the
    absence of evidence at trial does not in itself establish that
    Fakih did not arm them.           Because Fakih was silent as to the
    accuracy    of   this   finding   (which       was   based   on   the    PSR)    at
    sentencing, the district court could accept it as undisputed.
    See United States v. Revels, 
    455 F.3d 448
    , 451 n.2 (4th Cir.
    2006) (where defendant is silent on a specific fact supported in
    the PSR, such fact is undisputed).
    12
    B.
    Finally,     Fakih      contends     that      the   district      court
    procedurally erred by enhancing his sentence by two points for
    the carjacking of Mr. Woods.       See U.S.S.G. § 2B3.1(b)(5).
    Of course, the sentencing judge may enhance a defendant’s
    sentence for “all reasonably foreseeable acts and omissions of
    others   in    furtherance    of   the    jointly     undertaken     criminal
    activity.”     U.S.S.G. § 1B1.3(a)(1)(B).        Fakih does not dispute
    that “others” carjacked Mr. Woods “in furtherance of the jointly
    undertaken criminal activity.”          Thus, Fakih’s argument rests on
    whether the carjacking was “reasonably foreseeable” to him.
    At sentencing, the district court explained its rationale
    for finding that the carjacking was reasonably foreseeable to
    Fakih as follows:
    The acts that occurred in relation to the getaway were
    completely foreseeable and exactly what you would
    expect of people trying to flee a bank with money.
    And   to  the   extent  they   became  involved   in  a
    carjacking, it may be that the defendant’s failure to
    show up to take them away from the scene at the bank
    might have contributed to that, but that would be
    speculation.   The fact is that their activities were
    directly foreseeable to someone who fostered, set up,
    aided and abetted and participated in a robbery by
    bringing together the various participants, seeing to
    its they were delivered to the scene and arming them.
    We review a “reasonable foreseeability” determination for
    clear error.     United States v. Banks, 
    10 F.3d 1044
    , 1057 (4th
    Cir. 1993).      Fakih contends that it was clear error for the
    13
    court to rely on “unsupported assumptions about bank robberies
    in general, as opposed to relying on the particulars of this
    case.”     Appellant’s Br. at 32.
    Fakih bases his argument on a single case, United States v.
    Atwater,    
    272 F.3d 511
       (7th    Cir.    2001).      There,         the    Seventh
    Circuit vacated a sentence where the district court rested a
    reasonable-foreseeability finding solely on a false intuition:
    “I have never heard of a bank robbery without a firearm.”                                   
    Id. at 512
    .     In vacating the sentence, the court reasoned that, in
    fact,    many     bank    robberies        occur    without     a    firearm         and    the
    district court needed to rely on something particular about the
    bank     robbery         in    question       to      support        its        reasonable-
    foreseeability finding.             
    Id.
    Fakih’s case is a far cry from Atwater.                      Here, the district
    court supported the reasonable-foreseeability finding based on
    the particular circumstances of Fakih’s involvement in this bank
    robbery, not bank robberies in general.                       Thus, the court found
    that Fakih “set up” and “fostered” the bank robbery as well as
    “delivered”       and    “armed”     the    other    bank     robbers.          We    see    no
    “unsupported       assumptions            about     bank     robberies”             from    the
    sentencing        judge’s       particularized             assessment          of     Fakih’s
    orchestration of the robbery and participation in it.                               Moreover,
    since    Atwater,       the    Seventh     Circuit    has     upheld       a    reasonable-
    foreseeability finding of a co-defendant’s carjacking where the
    14
    district court relied on the defendant’s substantial involvement
    in the conspiracy.        See United States v. Williams, 
    553 F.3d 1073
    ,   1082   (7th    Cir.   2009).        This   case   is   much   closer   to
    Williams   than   to    Atwater.       Accordingly,       we   reject    Fakih’s
    challenges to his sentence.
    IV.
    For the foregoing reasons, the judgment of the district
    court is
    AFFIRMED.
    15