2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-26-2003

USA v. Hakim

Precedential or Non-Precedential: Precedential

Docket No. 02-3720

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Hakim" (2003). 2003 Decisions. Paper 223.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/223
PRECEDENTIAL

Filed September 22, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3720

UNITED STATES OF AMERICA

v.

KHALIL ABDUL HAKIM

a/k/a

ANTHONY LOWERY

Khalil Abdul Hakim,

Appellant

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 02-cr-00131-1)

District Judge: Honorable John R. Padova

Argued: June 30, 2003

Before: SLOVITER, AMBRO, and BECKER,

Circuit Judges

(Filed: September 22, 2003)
ROBERT EPSTEIN (Argued)

Assistant Federal Defender

DAVID L. McCOLGIN

Supervising Appellate Attorney

MAUREEN KEARNEY ROWLEY

Chief Federal Defender

Federal Court Division

Defender Association of Philadelphia

Suite 540 West - Curtis Center

Independence Square West

Philadelphia, Pennsylvania 19106

Counsel for Appellant

PATRICK L. MEEHAN

United States Attorney

LAURIE MAGID

Deputy United States Attorney for

Policy and Appeals

ROBERT A. ZAUZMER (Argued)

Assistant United States Attorney

Senior Appellate Counsel

FLOYD J. MILLER

Assistant United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106-4476

Counsel for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

Khalil Abdul Hakim was charged in connection with the

robbery by two armed men of a PNC Bank in Norristown,

Pennsylvania after an eyewitness saw a truck bearing a

“Boone’s Moving and Hauling” sign speed away from a

parking lot near the robbery. Hakim was one of three

employees of Boone’s, and the other two employees

identified him as one of the robbers from a “somewhat

blurred” [A283] photograph from the scene of the crime. A

jury subsequently convicted Hakim of four counts: (1)

2
conspiracy to commit armed bank robbery, 18 U.S.C. § 371;

(2) armed bank robbery, 18 U.S.C. § 2113(d); (3) using and

carrying a firearm during and in relation to a crime of

violence, 18 U.S.C. § 924(c)(1); and (4) using, carrying, and

brandishing a firearm during and in relation to a crime of

violence, 18 U.S.C. § 924(c)(1)(A)(ii). 

Hakim makes two contentions on appeal. First, he

asserts that the District Court erred by refusing to grant

his motion for a mistrial based on the admission of

testimony that Hakim “smokes crack,” “take[s] pills,” and

will take “anything that will make him high.” [A451.]

Although the District Court instructed the jury to disregard

this testimony, Hakim contends that the instruction came

too long after the testimony (30 minutes), by which point

the substance of the testimony had become “etched in

granite” in the minds of the jurors and thus incurable by

instruction. Hakim also submits that the District Court’s

curative instruction to the jury was neither precise nor

strong enough: it did not specifically mention that the jury

was to disregard the testimony about Hakim’s drug use,

but rather referred to the testimony more generally, and, in

Hakim’s submission, it did not adequately emphasize to the

jury that the testimony about Hakim’s drug use should play

no part in its deliberations. 

Although the timing of a jury instruction may impact

whether the damage from improperly admitted testimony

can be undone, we conclude that the jury instruction was

in fact curative. We generally presume that juries follow

instructions given by the District Court, and the time lapse

between the testimony and the curative instruction here

was not long enough to overcome that presumption.

Moreover, during much of the thirty minutes that passed,

the jury was in recess and was presumably not

contemplating Hakim’s drug use, a fact which further

suggests that the testimony had not become indelibly

ingrained in the minds of the jurors. As to the content of

the instruction, it appears that the District Court made a

considered decision not to mention the word “drugs” a

second time while giving the instruction, so as not to

compound the damage done by the admission of the

testimony, an approach with which Hakim’s counsel

3
apparently agreed since he did not object to the vagueness

or weakness of the jury instruction. We conclude that the

District Court did not err in the language of this

instruction. 

Hakim’s second contention is that he was denied the

right to a fair trial because the government made reference,

both during its questioning of Melvin Boone and its closing

arguments, to the following: (1) the fact that he was

Muslim; (2) his position as a Muslim spiritual leader; (3) his

ability to speak Arabic; and (4) his travel to Saudi Arabia.

The government alleges that it offered this to demonstrate

that Boone, who identified Hakim as the robber in the

surveillance photograph, respected Hakim as a spiritual

and worldly man and that therefore Boone would not lie

about his identification. Hakim responds that the

government made reference to his faith and his travels to

Saudi Arabia to suggest that he had connections to

terrorism; the trial followed shortly after the tragedy of

September 11, 2001 (“9/11”). 

We are underwhelmed by the government’s explanation,

and especially its contention that the prosecutor passed

Hakim’s passport around to the jury and called attention to

the fact that he had traveled to Saudi Arabia in order to

show that Boone thought Hakim was “worldly”; there is no

indication in the record that Boone was even aware that

Hakim had traveled to Saudi Arabia. However, counsel for

Hakim did not object at any point to the government’s

references to Hakim’s faith. Under that circumstance, we

can hold that Hakim was denied the right to a fair trial on

this ground only if we conclude that there was plain error,

which requires, in part, that the error “ ‘seriously affect the

fairness, integrity, or public reputation of judicial

proceedings.’ ”

1 Johnson v. United States, 520 U.S. 461, 467

(1997)(quoting United States v. Young, 470 U.S. 1, 15

(1985)). We do not believe that Hakim’s argument survives

this very rigorous test. The judgment of the District Court

will be affirmed. 

1. Counsel did move, post-trial, for a new trial on the basis of these

references to Hakim’s faith. The District Court accepted the government’s

explanation for its actions and denied the motion. 

4
I.

On November 28, 2001, two men brandishing firearms

entered a PNC Bank branch located in Norristown,

Pennsylvania and made off with $14,690. The bank robbers

were caught on film, but as the District Court later noted,

the surveillance photograph was “somewhat blurred.”

[A283.] The first robber entered the bank wearing a

stocking over his face; the second robber (alleged to be

Hakim) followed closely behind and entered the bank with

his face exposed, but covered it with a stocking shortly

thereafter. 

Hakim was connected to the robbery when witness

Robert Petersohn told the police that he had noticed a

black early-to-mid 1980s Chevrolet S-10 pick-up truck with

a sign reading “Boone’s Moving and Hauling” speed away

from a parking lot near the bank at the time of the robbery.

Petersohn worked at an auto body shop in Norristown and,

while taking a cigarette break, he noticed the black Chevy

truck parked very closely next to his own Chevy pick-up;

concerned about potential damage to his customized

vehicle, Petersohn walked over to make sure the black

Chevy had not scraped his own truck. [A187-190.]

Petersohn later saw the pick-up truck drive quickly away

down a back alleyway, but he was not able to see the

occupants of the truck. [A196-97.] Another witness,

Christopher Robbins, saw two men run across the street

from the vicinity of the bank, one of whom got into a black

“early 80’s Chevy” pick-up truck with a sign on it (although

he could not read the sign) and drove away. [A226-229.] 

Investigators located the owners and employees of

Boone’s Moving and Hauling: Melvin Boone, Hakim

(Boone’s business partner), and James Gray, an employee.

Boone and Gray identified Hakim as the man in the

surveillance photograph. The Norristown police found a

black Chevy S-10, with a “Boone’s Moving and Hauling”

sign, parked across from Boone’s home on the morning of

the robbery. The license plate on the truck belonged to a

different truck, which was registered to Hakim. Gray and

Boone stated that Hakim regularly drove the S-10 pick-up

truck. Petersohn identified the vehicle as the one he had

5
seen parked next to his truck at the time of the bank

robbery. 

Based on this evidence, the government obtained a

search warrant for Hakim’s house. They found a baseball

cap with an American flag on it similar to the one the

second robber was wearing in the surveillance photograph.

[A396-97.] They also found a pair of gray sweat pants

similar to the one worn by the second robber. They did not,

however, find the distinctive sweatshirt worn by the second

robber. [A416.] 

Three days after the bank robbery, Hakim purchased a

used Lexus automobile for $6,700 in cash (nearly half the

amount of money stolen.) [A171-72.] The vehicle was

purchased with new $100 bills. [A172.] However, Hakim

points out that he and Boone had received $4000 for a

moving job shortly before the purchase of the Lexus and

that he had purchased vehicles in the past for cash:

another Lexus three years earlier for $5,300 and a Jeep for

$6,000. Hakim also notes that he had received income from

various rental properties he owned. 

The initial description of the second bank robber given by

the bank employees present at the time of the robbery did

not match Hakim’s appearance. Seqora Ward, the bank’s

service manager, testified that she made eye contact with

the second robber before he put the stocking over his face.

She had initially told police that the robber was “dark

skin[ned],” [A361.], although at trial she testified that he

had “light brown” skin. [A144.]. Hakim is a light-skinned

African American man. Tawana West, the bank’s sales

manager, told officers that the second robber was “dark

skinned” and between thirty-five and forty-five years of age.

[A361.] Hakim is fifty-two years old. West also stated that

the second robber was six feet tall and was of “medium

weight.” [A161-62.] Hakim stands five feet nine inches tall

and weighs 205 pounds. [PSI #47.] The surveillance

photograph shows that the second robber was

approximately five foot nine and had a full beard. 

Hakim was charged with four counts of armed bank

robbery. The jury returned a verdict convicting Hakim on

all counts and he was sentenced to fifty two months on

6
Counts One and Two, to run concurrently, and 84 months

on Counts Three and Four, to run concurrently to each

other but consecutively to Counts One and Two. The

District Court also imposed five years of supervised release,

restitution in the amount of $14,698 and a special

assessment of $400. Hakim timely appealed. 

The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231 and we have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review the District Court’s denial of a mistrial

for abuse of discretion. See United States v. Weaver, 267

F.3d 231, 245 (3d Cir. 2001), cert. denied, 534 U.S. 1152

(2002). Since counsel objected neither to the content of the

curative instruction nor to the references to Hakim’s faith

at trial, we review for plain error the content of the

instruction and the question whether the government

violated Hakim’s right to a fair trial by making references to

his faith. See United States v. Brennan, 326 F.3d 176, 182

(3d Cir. 2003). To establish plain error, the defendant must

prove that there is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that

‘affect[s] substantial rights.’ If all three conditions are met,

an appellate court may then exercise its discretion to notice

a forfeited error, but only if (4) the error ‘seriously affect[s]

the fairness, integrity, or public reputation of judicial

proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467

(1997)(citations omitted).

II.

A.

We begin with the issue of the introduction of testimony

about Hakim’s drug use. This testimony was elicited in

response to questions posed by defense counsel to Melvin

Boone, one of the government’s key witnesses. Boone was

presented with a surveillance photo of the robbery and he

identified Hakim as one of the participants. In order to

challenge Boone’s credibility as a witness, defense counsel

presented evidence that Boone had been involved in the

sale of illegal drugs. This testimony was given by James

Gray, an employee of Boone’s Moving and Hauling, who

stated that when questioned about the robbery he had told

7
Detective Emrich that Boone had sold crack cocaine out of

his girlfriend’s apartment. [A432-36.] During the re-direct

examination, the government attempted to bring out the

fact that Gray had also told Emrich that Hakim used drugs.

The government argued that this information was

admissible under Fed. R. Evid. 106. Over Hakim’s

objection, the Court permitted the prosecutor to ask Gray,

“Does Khalil (Hakim) smoke rock or do any drugs?” Gray

answered, “Yes. He smokes, I’ve seen him smoking crack

before. I’ve seen him take pills, anything that will make him

high.” [A451].2

After a recess, at a side bar, the District Judge informed

counsel for both sides that he had decided to change his

ruling on defense counsel’s objection to Gray’s testimony.

Defense counsel welcomed this development and the

Court’s determination to give the jury a curative

instruction, but stated that such an instruction would be

inadequate to cure the prejudice to Hakim and moved for a

mistrial, which was denied. When the jury re-entered the

courtroom, approximately thirty minutes after Gray had

finished testifying, the Judge told them that the evidence of

Hakim’s drug use had been improperly admitted and

instructed them to disregard that testimony. The Court told

the jury:

Ladies and gentleman of the jury, there is a ruling that

I do want to make you aware of. You’ll recall that

during the course of the Government’s redirect

examination of Mr. Gray, reference was made by the

Government to a statement that Mr. Gray had made to

Detective Emrich concerning the defendant’s conduct.

[Hakim’s counsel] objected to that question, I overruled

that objection and the contents of a statement made by

2. Fed. R. Evid. 106 provides that: 

When a writing or recorded statement or part thereof is introduced

by a party, an adverse party may require the introduction at that

time of any other part or any other writing or recorded statement

which ought in fairness to be considered contemporaneously with it.

The decision to admit the answer under Rule 106 was plainly

incorrect, as the Court later conceded. 

8
Mr. Gray to Detective Emrich during that interview,

was testified to by Mr. Gray. 

I’ve decided to change my ruling in that regard. I am

going to sustain the defendant’s objection to that

testimony. I’m going to strike that testimony out of this

case completely and I instruct you — and this is an

instruction which you must follow — that you are to

disregard completely and entirely that question and the

answer that was given to that question that has — that

is to play no part whatsoever in your consideration

with respect to the charges that have been made

against this defendant in the indictment. 

The only thing that this defendant is on trial for in this

courtroom — the only thing he’s on trial for — is that

charged in the indictment and you know all about that

up to now and I don’t want anything at all to distract

you from that focus and from that analysis. So,

therefore, disregard that testimony completely and

entirely. 

[A469-70.] 

Hakim contends that he was prejudiced by the Court’s

initial decision to admit the testimony and that the Court’s

curative instruction was insufficient. 

We will assume, without deciding, that Gray’s testimony

about Hakim’s drug use was prejudicial. This brings us to

the question whether the District Court’s instruction to the

jury to ignore that part of Gray’s testimony was sufficient to

cure whatever prejudice may have resulted from it. Hakim

asserts that it was not, for two reasons: it came too long

after the key testimony and it was too vague to be effective.

1. The Delay in Giving the Instruction

Approximately thirty minutes passed between Gray’s

testimony about Hakim’s drug use and the District Court’s

curative instruction. Hakim submits that by the time the

Court gave its instruction, the fact of Hakim’s drug use was

already indelibly etched on the minds of the jurors,

resulting in incurable prejudice against him. 

9
We begin our analysis with the presumption that juries

follow the instructions given by district courts. See United

States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993)(“In

reviewing the district court’s handling of the evidence that

was subsequently stricken from the record, we presume

that the jury will follow a curative instruction unless there

is an ‘overwhelming probability’ that the jury will be unable

to follow it and a strong likelihood that the effect of the

evidence would be ‘devastating’ to the defendant.”)(citations

omitted). The question then is whether the delay in this

case was sufficient to overcome this presumption. We

believe that it was not. We agree with Hakim that the lapse

of time between an error and a curative instruction can be

significant. In United States v. Gullo, for example, while the

substance of particular curative instructions given at trial

was adequate, “they came some twenty-four hours after the

inadmissible question had been injected into the case” and

“[w]hatever efficacy curative instructions possess cannot

help but be weakened by the lapse of time.” 502 F.2d 759,

762 (3d Cir. 1974). See also United States v. Vaulin, 132

F.3d 898, 901 (3d Cir. 1997)(denying the defendant’s

request for a new trial because “the trial judge immediately

gave a strong curative instruction”)(emphasis added); United

States v. Traitz, 871 F.2d 368, 398 (3d Cir. 1989)(noting

that a “timely curative instruction [was] given by the district

judge”). 

Under the circumstances of this case, however, the delay

was insufficient to overcome the presumption that the jury

adhered to the dictates of the curative instruction. First,

the delay was only about thirty minutes long, significantly

shorter than the twenty-four hour delay at issue in Gullo.

Second, much of the delay was taken up by a recess,

during which the jurors were not hearing testimony and

were taking a break from their contemplation of the case.

Under these circumstances, we conclude that the fact of

Hakim’s drug use had not become so ingrained in the

minds of the jurors that the curative instruction was

insufficient to ameliorate any prejudice Gray’s testimony

might have caused Hakim. 

We acknowledge that our conclusion arguably conflicts

with that of the Court of Appeals for the Sixth Circuit in a

10
similar case, United States v. Solivan, 937 F.2d 1146 (6th

Cir. 1991). In Solivan, the defendant was on trial for selling

cocaine, and the prosecutor urged the jury during his

closing arguments to send a message to other drug dealers

that “we don’t want that stuff in Northern Kentucky.” Id. at

1148. After twenty minutes had passed, including a recess,

the district court admonished the jury, “[d]o not consider

any urgings by the prosecutor to send messages to

anybody. We’re not here to send messages to anybody.

We’re here to try this defendant’s case.” Id. at 1149. On

appeal, the Court of Appeals for the Sixth Circuit concluded

that “[t]he admonition given by the district court in this

case was given too late to eradicate the prejudice from the

jurors’ minds” and that the comments had become “ ‘etched

in granite’ in the jurors’ minds.” Id. at 1157. However, we

view the Court’s statement as hyperbolic, animated perhaps

by the egregious nature of the prosecutor’s statement. We

see no reason why an admonition twenty minutes (or thirty,

in this case) after the objectionable comments would be

ineffective. 

2. The Specificity of the Instruction

Hakim also argues that the District Court’s instruction

was too vague to ensure that the jury would disregard the

testimony about his drug use. Rather than directly telling

the jury to ignore any statements about Hakim’s drug use,

the Court chose to describe Gray’s testimony only

indirectly:

You’ll recall that during the course of the Government’s

redirect examination of Mr. Gray, reference was made

by the Government to a statement that Mr. Gray had

made to Detective Emrich concerning the defendant’s

conduct. 

[A469-70]. 

The government argues that for a number of reasons the

District Court’s decision not to refer directly to the drug use

testimony was not error. First, the government asserts that

because the District Judge was actually able to see the

jury, he was in a good position to gauge whether the jurors

understood the reference to Hakim’s “conduct.” Second, the

11
government submits that the District Court purposefully

declined to use the word “drugs” in its instruction because

it did not want to cause Hakim further prejudice by

explicitly repeating the testimony. Third, the government

points out that Hakim’s counsel did not object to the

phrasing of the instruction, a fact which suggests that

counsel agreed with the Judge’s approach and believed the

jury understood what the Judge was referring to. 

We do not think that the instruction was impermissibly

vague. The District Judge was discussing testimony that

had been heard mere minutes earlier and was in a much

better position than this Court to determine whether the

jury understood what he was referring to. At all events,

based on the transcript, the object of the Court’s reference

seems clear, and we cannot say that the content of the

instruction amounted to plain error. 

B. The Government’s References to Hakim’s Muslim

Faith

Most of the government’s references to Hakim’s faith

occurred during examination of Boone. Boone explained

that he had met Hakim while attending a spiritual class,

and they ultimately became business partners at Boone’s

Moving: 

Q. Would you describe for the jury . . . your

relationship with the defendant.

A. Yes. We were very close friends. As a matter of fact,

spiritually, we was — we used to - - we used to go to

Jumal, which is our spiritual classes together.

Q. All right. When you say spiritual, what particular

branch of religion do you subscribe to? 

A. Islam - - Muslims. 

Q. Muslims? 

A. Right. 

Q. So you attended spiritual classes together?

A. Right. 

12
Q. What role if any, did he play in the classroom

setting?

A. He was very intelligent, he was the Eman [sic], that

was, like, a head priest. 

Q. Head priest. 

A. Yes. 

. . . 

Q. Now I want to explore his role as Eman [sic] - - I

believe as you call it - - and what position is that now

in the Muslim faith?

A. That would be, like, head position to - - like a

teacher in the class. In other words, he would be the

head man of the Jumal, he would read the Koran and

explain to us, different scenarios in the book. And he

would make prayer and stuff like that, lead the prayer.

Q. Was he able to do this in English or Arabic? 

A. Both - - both [A247-48.] 

. . . 

Q. Why did the two of you agree on that particular

arrangement in terms of the duties that each of you

would perform [in the business?].

A. Well, see, Khalil’s educational background was

strong and he had been, basically, scholarships he had

and stuff like that. . . . 

. . . 

Q. Is it fair to say, you trusted him to handle the

money? 

A. Exact. 

Q. And why did you have such trust in him? 

A. I looked up to Khalil, I looked up to him a lot and

- - 

Q. Tell the jury why?

A. Spiritually, he - - spiritually, I looked up to Khalil

very a lot, because he was an idol for me. I mean, I

13
never had nobody to really help me come through life,

but I never put - - put trust in nobody, but I put trust

in him, because I looked up to Khalil very - - so much

- - I looked up to him. 

[A252.] 

During the government’s closing arguments, the

prosecutor passed around Hakim’s passport, noting that he

had traveled to Saudi Arabia:

Now, [Boone] told you that he had met the defendant,

he had known him for about ten years, they were both

members of the same religious community, Muslims.

The defendant occupied the role of Iman, the spiritual

lead of the congregation and that he looked up to him,

he admired him. He said, he was a teacher, he was the

leader. 

And as you will see from the defendant’s passport and

I - - I urge you to take the time to look at this passport,

not only from the standpoint of identification, but the

facial hairs that was [sic] described by Seqora Ward

and the skin tone color. But you may remember that I

asked the question of Mr. Boone, he’s the spiritual

leader? Yes. He speaks Arabic and English. And if you

will look in the passport, you will notice that in 1996,

the defendant visited Saudi Arabia and there are a

number of other stamps in the passport, all showing

that he’s a worldly man, he’s well traveled. 

Of course, a person like Melvin Boone - - from a family

of twenty-one children, someone who cut grass, saved

$1200 to try to start a business on his own, someone

with no world travel, none of the worldly experiences

that this defendant would have, of course Melvin Boone

would respect a man like this.

[A475.] 

Hakim argues that these references have no relation to

the crime with which he was being charged: bank robbery.

Boone was brought to the stand to identify Hakim as the

second robber in the surveillance photograph. As such,

Hakim maintains that the prosecution had only to establish

that Boone was able to identify Hakim; testimony that he

14
had known Hakim for 10 years would have been sufficient.

Hakim therefore contends that the government elicited the

testimony about his faith in an attempt to peg him as a

potential terrorist in the minds of the jurors and that such

use of race or ethnicity is improper. See, e.g., Moore v.

Morton, 255 F.3d 95, 113 (3d Cir. 2001)(holding that where

the prosecutor suggested that the fact that the black

defendant was married to a white woman, allegedly showing

his preference for white women, made it more likely he had

raped the white victim, “[r]acially or ethnically based

prosecutorial arguments have no place in our system of

justice.”). 

As noted above, because Hakim’s lawyer did not object to

the references to Hakim’s faith at trial, we review the

question whether the government violated Hakim’s right to

a fair trial for plain error. As Hakim points out, there are a

handful of cases in which Courts of Appeals have remanded

a matter for a new trial on the basis of the prosecutor’s

reference to a defendant’s race or ethnicity,

notwithstanding the failure of defense counsel to object at

trial. In United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990),

for example, the Court determined that the defendant, a

Jamaican, had been deprived of the right to a fair trial,

despite the fact that defense counsel had not raised an

objection at trial, because the prosecutor made references

to the fact that the retail drug market in Washington D.C.

had been taken over by Jamaicans, thereby suggesting that

it was more likely that the defendant was guilty of the drug

sales with which he had been charged. Although the

government argued that these references were “fleeting” and

“insignificant,” the Court concluded that the “fairness,

integrity [and] public reputation of judicial proceedings”

were “seriously affected.” Id. at 26.3 Similarly, in United

States v. Cabrera, 222 F.3d 590 (9th Cir. 2000), the Court

found that the government’s references to the drug market

falling under the control of Cuban dealers, its suggestion

that the Cubans were flight risks, and its description of

3. Although this case was decided before United States v. Olano, 507 U.S.

725 (1993), which laid out the plain error standard we employ here, the

Doe panel appears to have employed substantially the same plain error

test. 

15
how Cubans tended to package their drugs, were plain

error where defendant was also Cuban. See also Withers v.

United States, 602 F.2d 124, 125 (6th Cir. 1979)(holding

that prosecutor’s reference to the fact that “not one white

witness” has produced contradictory evidence was plain

error). 

While we find the government’s mention of Hakim’s

religion disturbing, we conclude that Hakim cannot

demonstrate that it amounted to plain error. This is

primarily because the government offers a plausible

explanation for why it made these references to Hakim’s

faith: it wanted to demonstrate that Boone respected Hakim

and had no incentive to lie about his identification. The fact

that the government offered this permissible explanation

and that it never directly drew the link between Hakim’s

faith and the events of 9/11 distinguish this case from Doe

and Cabrera, in which the government offered no such

explanation and drew direct links between the defendants’

race or ethnicity and the crimes with which they were

charged. 

To meet his burden on plain error review, Hakim would

have to show that the government’s actions “seriously

affect[ed] the fairness, integrity, or public reputation of

judicial proceedings,” Johnson v. United States, 520 U.S.

461, 467 (1997)(quoting United States v. Young, 470 U.S. 1,

15 (1985)), a showing difficult to make when there is a

permissible explanation for the government’s conduct. He

has not made it here, hence we are constrained to reject

Hakim’s contention that these actions violated his right to

a fair trial. 

Despite so holding, we note that the government’s

explanation for its references to Hakim’s faith, and even

more so for its showing the jury Hakim’s passport to

demonstrate that he had traveled to Saudi Arabia, is by no

means compelling. We do not reverse given the plain error

standard of review, but we are troubled that the

government, by making the references so soon after 9/11,

needlessly made this case close.

The judgment of the District Court will be affirmed. 

16
A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17