Monday, April 10, 2017

In Related Cases, Court Holds Evidence Proved One Conspiracy; Suppression Not Appropriate Remedy for Improper Wiretap Orders; Resentencing Ordered For One Defendant

United States v. L. Dahda, 2017 WL 1228545 (April 4, 2017) (KS): L. Dahda was convicted of conspiring with others to distribute 1000 kilos or more of marijuana. In his appeal he said; the evidence was insufficient to prove one large conspiracy, and because the evidence was insufficient there was an unconstitutional variance between the large conspiracy charged and the numerous smaller conspiracies established at trial. He also argued that his motion to suppress wiretap evidence should have been granted, and that the jury instruction on maintaining a drug premises was compromised because it did not tell the jury the government had to prove that storing or distributing drugs was the primary purpose for which L. Dahda used the premises. Finally he argued that the court’s sentence was unconstitutional because the jury was not asked to find the conspirators distributed a specific amount of marijuana; and that the court erred in imposing a $16,985,250 fine. The panel agreed only with this last point because the amount was over the statutory limit.

The panel said there was sufficient evidence of a conspiracy because L. Dahda and other conspirators shared in the transportation and storage of money and drugs. Although there was evidence certain participants, like L. Dahda, selected their own marijuana and then kept track of that marijuana and their money, because the conspirators transported their wares together, that showed they were interdependent. Besides, the conspirators also bought and sold marijuana from one another. For these reasons there was no variance. Even if at times certain conspirators operated within smaller groups, at other times they all operated together. In other words, there was adequate evidence of one vast conspiracy.

The panel wrote extensively about the wiretap authorization orders. It concluded that according to 18 U.S.C. §§ 2510-20, the district court’s orders were improper because they authorized the use of a stationary listening post outside of the district court’s territorial jurisdiction. However, suppression was not the remedy because limiting territorial jurisdiction was not Congress’s “core concern” in promulgating Title III. Instead that title’s goals are to protect the privacy of oral and wire communications and establish a uniform basis for authorizing the interception of those communications. It still might be worth raising this issue since the panel noted there is a circuit split regarding the remedy. In United States v. Glover, 736 F.3d 509, 515 (D.C. Cir. 2013), the court ruled that territorial jurisdiction is a core concern of Title III and so suppression is an appropriate remedy when the wiretap authorization is improper. In United States v. North, 735 F.3d 212, 215-17 (5th Cir. 2013), the Fifth Circuit agreed that suppression is the correct remedy for a violation of the Wiretap Act.

Regarding, the jury finding on the amount of marijuana, the panel decided that the amount was an element of the offense on which the jury was instructed. The conspiracy charge included an allegation that the conspirators distributed 1,000 kilos or more of marijuana and the court told the jury it had to find that the “overall scope of the agreement involved more than 1,000 kilos of marijuana.” Consequently, there was a finding that L. Dahda was involved in distributing a certain amount of marijuana and the court was allowed to sentence him to more than five years on that count.

The panel ruled that L. Dahda “waived” the drug premise instruction argument. At trial he told the district court that he was not challenging the content of that instruction. He did argue, however, that there was not enough evidence to justify the instruction and it should not be given. The panel noted that a “waiver” is the intentional relinquishment or abandonment of a known right that does not entitle the party to appellate relief. Forfeiture is a failure to make a proper objection but a party still may seek relief for plain error. Here, L. Dahda “waived” the instruction issue because he did not “challenge the content of the jury instruction.” The lesson apparently is that when objecting to the necessity of an instruction, one also should object to the instruction’s contents to preserve the issue for appeal.

United States v. R. Dahda
, 2017 WL 1228547 (April 4, 2017) (KS): The panel ruled against R. Dahda (the brother of L. Dahda) on issues similar to his brother’s. However, the panel did remand for resentencing because it found the district court incorrectly quantified the amount of marijuana for which it believed R. Dahda was responsible. The panel held, it was reasonably foreseeable that he was responsible for more marijuana than he actually possessed because “he knew or should have known” that the conspiracy was trafficking in amounts greater than his. Still, what those amount were was “vague” at best. At trial, conspirators testified that toward the end of the conspiracy there “could have been” times when the pallets held 80 pounds of marijuana. The probation office used that amount to extrapolate that 80 pounds was the average of amount per load and R. Dahda was responsible for 1600 pounds. The panel pointed out this calculation was based on “insufficient minimally reliable evidence” because the evidence showed the quantities varied. For example, one conspirator said that each pallet contained between 5-10 pounds to 80 pounds. Because the testimony was “vague, conflicting, and unsupported by other evidence” the court’s finding was speculative and its error was not harmless.

Although R. Dahda may get some sentencing relief on remand, the panel did approve of the district court’s 33 month upward variance because R. Dahda’s was “legally and morally responsible” for the extra prison time a co-conspirator was given. The panel believed there was adequate evidence that R. Dahda had pressured this co-conspirator into not cooperating with the government. R. Dahda had written the co-conspirator after his trial to tell her she could try for the safety valve adjustment. She followed this instruction but only then because she had not wanted to testify against the Dahda brothers. When she spoke with the agents they believed she was untruthful because she “minimized the criminal activity of individuals related to” R. Dahda. Hence, no safety valve adjustment and an imprisonment term 12 to 33 months higher than she might have been given.

Finally, the panel approved of the $16 million forfeiture order even though the district court violated Rule 32.2. That rule requires the court to enter a preliminary forfeiture order so the parties may suggest revisions before the order becomes final. Here, the court did not do that. But the outcome was unaffected because R. Dahda had notice of the potential forfeiture amount from the superceding indictment and he objected to any forfeiture before the hearing.