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United States v. Taher

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC

DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2

New York, on the 28 th day of September, two thousand sixteen. 3

4

PRESENT: PIERRE N. LEVAL, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges

, 7

EDWARD R. KORMAN, 8

District Judge .* 9

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11

UNITED STATES OF AMERICA, 12

13

Appellee

, 14

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v. No. 14

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MOHAMED TAHER, AKA BEETLE, 18

19

Defendant

‐ Appellant .** 20

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* The Honorable Edward R. Korman, of the United States District Court for the Eastern District

of New York, sitting by designation.

** The Clerk of Court is directed to amend the official caption to conform with the above.2 FOR APPELLEE: F RANK T. P IMENTEL

, Assistant United States 1

Attorney, for William J. Hochul, Jr., United States 2

Attorney, Western District of New York, Buffalo, 3

NY. 4

5

FOR APPELLANT: R ANDA D. M AHER

, Law Office of Randa D. 6

Maher, Great Neck, NY. 7

8

Appeal from a judgment of the United States District Court for the 9

Western District of New York (William M. Skretny, Judge ). 10

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 11

AND DECREED that the judgment of the District Court is AFFIRMED. 12

Defendant Mohamed Taher appeals from an April 7, 2014 judgment of the 13

District Court (Skretny, J.) convicting him, following a jury trial, of engaging in a 14

continuing criminal enterprise (“CCE”), in violation of 21 U.S.C. § 848; making a 15

false statement, in violation of 18 U.S.C. § 1001(a)(2); and committing aggravated 16

identity theft, in violation of 18 U.S.C. § 1028A(a)(1). We assume the parties’ 17

familiarity with the facts and record of the prior proceedings, to which we refer 18

only as necessary to explain our decision to affirm. 19

1. Taher’s CCE Conviction 20

Taher argues that his conviction on the CCE count should be reversed for 21

three reasons. 223 First, Taher contends that while the indictment charged him with 1

participating in a single conspiracy, the Government in fact proved two 2

conspiracies—one involving the importation of large quantities of marijuana 3

from Canada, and one involving the distribution of small quantities of marijuana 4

in the United States. “Whether the [G]overnment has proven the existence of the 5

conspiracy charged in the indictment and each defendant’s membership in it, or, 6

instead, has proven several independent conspiracies is a question of fact for a 7

properly instructed jury.” United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 8

1995). Here, the District Court properly instructed the jury on the difference 9

between a single conspiracy and multiple conspiracies, namely, that (1) it 10

“cannot find any defendant guilty of the single conspiracies charged in the 11

indictment” if it finds that those conspiracies did not exist, and (2) “[p]roof of 12

several separate and independent conspiracies is not proof of the single overall 13

conspiracy charged in the indictment.” Joint App’x 209–10. The evidence was 14

sufficient to sustain the jury’s finding of a single conspiracy. And even assuming 15

that the Government proved two conspiracies, there was no substantial prejudice 16

to Taher, who was proven to be a central figure in both conspiracies. See 17

Johansen, 56 F.3d at 351. 184 Second, relying on Richardson v. United States, 526 U.S. 813, 817–18, 824 1

(1999), which requires that the jury agree unanimously on each of the violations 2

constituting a “continuing series of violations,” 21 U.S.C. § 848(c)(2), Taher 3

challenges his conviction on the ground that the jury might have impermissibly 4

found him in violation of 21 U.S.C. § 843(b) (which he alleges was improperly 5

charged and unsupported by the evidence at trial), or of other uncharged crimes. 6

Because Taher raises these claims for the first time on appeal, we review them for 7

plain error. United States v. Cacace, 796 F.3d 176, 190 (2d Cir. 2015). We have 8

recognized that a Richardson violation is harmless when “the jury would 9

nonetheless have returned the same verdict of guilty.” Monsanto v. United 10

States, 348 F.3d 345, 350 (2d Cir. 2003) (quotation marks omitted). Here, there 11

was ample evidence to support the jury’s verdict and no reason to doubt that the 12

jury would have returned a guilty verdict on the CCE count regardless of 13

whether the District Court had been clearer that the jury could not consider 14

crimes not mentioned in the indictment. Even assuming arguendo that Taher’s 15

conviction on the CCE count violates Richardson under these circumstances, we 16

conclude that any error was harmless beyond a reasonable doubt. See id. at 349 17

& n.4, 351. 185 Third, Taher argues that the jury might impermissibly have counted 1

individuals who, for lack of evidence, could not be included among the 2

necessary five individuals that Taher organized, supervised, or managed. But 3

sufficient evidence existed for the jury to find that Taher supervised at least six 4

other individuals, and Taher requested neither a special interrogatory nor an 5

instruction that would have limited the jury’s consideration to specified 6

individuals on this issue. We therefore reject his argument. See United States v. 7

Roman, 870 F.2d 65, 72–73 (2d Cir. 1989). 8

2. Taher’s Other Arguments 9

Taher also raises a number of issues relating to the District Court’s 10

evidentiary rulings and conduct at trial. Based on a review of the record, we 11

reject his argument that the District Court clearly erred in finding that he was not 12

in custody when he made statements to law enforcement officers and in 13

admitting those statements. Nor did the District Court abuse its discretion in 14

denying a mistrial after an isolated instance in which a witness inadvertently 15

revealed that Taher “went to jail” instead of using the phrase “became 16

unavailable.” See United States v. Deandrade, 600 F.3d 115, 119 (2d Cir. 2010). 17

Finally, the District Court did not abuse its discretion in its instructions to the 186 jury after Taher attempted to communicate with the jury by holding up a note 1

during the trial. See United States v. Farhane, 634 F.3d 127, 168–69 (2d Cir. 2011). 2

Furthermore, the District Court’s statements were prompted in part by the efforts 3

of Taher’s own counsel, who requested additional instruction to ensure that the 4

jury not consider the fact that the court had even made an inquiry. 5

We have considered all of Taher’s remaining arguments and conclude that 6

they are without merit. For the foregoing reasons, the judgment of the District 7

Court is AFFIRMED. 8

FOR THE COURT: 9

Catherine O’Hagan Wolfe, Clerk of Court 10