120 F.3d 688 (7th Cir. 1997), 96-2434, United States v. Muhammad

Docket Nº:96-2434.
Citation:120 F.3d 688
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Seifullah MUHAMMAD, Defendant-Appellant.
Case Date:July 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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120 F.3d 688 (7th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Seifullah MUHAMMAD, Defendant-Appellant.

No. 96-2434.

United States Court of Appeals, Seventh Circuit

July 21, 1997

        Argued Feb. 21, 1997.

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[Copyrighted Material Omitted]

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        Barry Rand Elden, Chief of Appeals, Diane L. Saltoun (argued), Office of the United

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States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

        Susan Bogart (argued), Chicago, IL, for Defendant-Appellant.

        Before CUMMINGS, RIPPLE, and KANNE, Circuit Judges.

        KANNE, Circuit Judge.

        Seifullah Muhammad was called upon to serve a vital civic duty--he was chosen to be a juror in a civil trial in federal district court. Muhammad abused this position, however, by soliciting a bribe from the defendant in that trial in return for his promise to sway the jury in the defendant's favor. The defendant reported Muhammad's scheme to the district judge, and the FBI subsequently thwarted Muhammad's plan. The Government later indicted Muhammad for bribery and obstruction of justice, a jury convicted him of the crimes, and a district judge sentenced him to sixty months in prison. Muhammad now makes several challenges to his convictions and his sentence, none of which contain any merit. As such, we affirm.

       I. HISTORY

        On August 21, 1995, Seifullah Muhammad was selected as one of eight jurors to serve in the civil trial of Jesus Favala v. Cumberland Engineering Company (No. 88 C 8759) in the United States District Court for the Northern District of Illinois. Favala was suing Cumberland Engineering for $1.8 million based on the personal injury he sustained while working at Cumberland in 1988.

        On August 23, 1995, Muhammad called Cumberland Engineering in South Attleboro, Massachusetts where he reached the company's answering machine. He left a message, along with a pager number where he could be contacted, stating that he could "help you all out" in the Favala case. The next morning, Muhammad again called Cumberland stating that he wanted to speak with Vincent Picarello--a Cumberland executive who was representing the company at trial--because he had information regarding the trial. Muhammad refused to give his name, but he left a telephone number where he could be reached for the next half hour and emphasized that someone should contact him as soon as possible because closing arguments were beginning that morning.

        At 8:15 that morning, the lawyer representing Cumberland at the Favala trial (Thomas Doell) called the telephone number, which belonged to a pay telephone in an office building located nearby the federal courthouse. A male voice answered the call and asked, "What is this case worth to Cumberland?" The person refused to identify himself and would not state what type of help he could provide, but he repeatedly asked what Cumberland would pay for help with the case. The Cumberland lawyer declined the offer of assistance, and then he informed the trial judge of the telephone conversation. The judge passed this information onto the U.S. Attorney's office, and the FBI subsequently learned of Muhammad's proposition to Cumberland.

        That same day, the parties presented their closing arguments in the Favala case. The jury, however, did not begin its deliberations. Later that afternoon, an FBI agent placed two undercover calls to the pager number Muhammad had left on Cumberland's answering machine. The FBI had previously discovered that the pager number was registered to Muhammad's employer and assigned to Muhammad. At about 3:50 p.m., Muhammad responded to the second page. An undercover agent acting as a Cumberland employee and calling himself "Mark" inquired about whether Muhammad could help. During the conversation, Muhammad revealed that he was a juror in the Favala trial and that he was willing to sway other jurors to return a favorable verdict for Cumberland. Mark asked Muhammad what he wanted in return, and Muhammad replied $2,500. They then agreed that Mark would pay half of the $2,500 before jury deliberations and the other half after the jury returned its verdict. Muhammad and Mark agreed to meet at 8 a.m. at the Dunkin' Donuts on Clark and Madison streets the next morning in order to exchange the first half of the money. Mark gave Muhammad a physical description of himself and indicated that he would be wearing a gray suit, white shirt, and purple tie. Muhammad refused to identify

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himself or provide his own physical description.

        The next morning--August 25, 1995--Mark and several other FBI agents went to the Dunkin' Donuts. Mark, however, wore a green tie with gray dots rather than a purple tie. Shortly before 8 a.m., Muhammad walked into the Dunkin' Donuts, bought a cup of coffee, and left the store. The agents recognized Muhammad as a Favala juror because they had previously observed him at the trial. Once Muhammad left the store, Agent Hickey approached him. Apparently, the FBI had originally planned to arrest Muhammad after Muhammad contacted Mark, Mark gave him the money, and another agent signaled that the exchange had occurred. Even though none of these things happened, Agent Hickey approached Muhammad because he saw something in Muhammad's hands and presumed it was the exchanged money. Agent Hickey identified himself as an FBI agent and asked Muhammad if he was there to pick up some money. Muhammad indicated that he had talked about receiving $2,500. At that time, Agents Gandolfo and Denny arrested Muhammad and took him to the nearby FBI offices.

        While at the FBI offices, the agents orally advised Muhammad of his Miranda rights for the first time. Muhammad eventually signed a waiver of his Miranda rights about twenty minutes after his initial arrest. After waiving his rights, Muhammad confessed to being a juror in the Favala case, making telephone calls to Cumberland including the initial voice message, speaking with Cumberland's lawyer and offering his help, telling the undercover agent (Mark) that he would influence the other jurors in exchange for $2,500, arranging the meeting with that agent at the Dunkin' Donuts, going to the Dunkin' Donuts to receive part of the money, and not recognizing anyone at the Dunkin' Donuts fitting Mark's description and wearing a purple tie.

        In a two-count indictment, the Government charged Muhammad with bribery, 18 U.S.C. § 201, and obstruction of justice, 18 U.S.C. § 1503. Muhammad subsequently filed a motion to dismiss the indictment on multiplicity grounds, a motion requesting that the Government produce all statements made by him, and a motion to suppress his pre- and post-arrest statements. The district court denied the motion to dismiss based on multiplicity, ordered the Government to produce all statements made by Muhammad, and granted Muhammad a hearing on his motion to suppress. In response to the production motion and the court's subsequent order, the Government produced a transcript of a consensual tape recording containing statements made by Muhammad after his arrest, a report of Muhammad's post-arrest interview (i.e., an "FBI 302"), and a signed waiver of Muhammad's Miranda rights. Despite Muhammad's requests, however, the Government did not produce the notes taken by Agent Gandolfo during the post-arrest interview that he used to prepare the FBI 302.

        At the suppression hearing, the court suppressed the statements made by Muhammad outside the Dunkin' Donuts because they were taken in violation of Miranda. The court, however, permitted the Government to use the statements made by Muhammad after he was given and waived his Miranda rights. After a three-day trial, a jury convicted Muhammad of both bribery and obstruction of justice.

        The district court sentenced Muhammad to sixty months in jail and three years of supervised release. The court enhanced Muhammad's base offense level by eleven points pursuant to U.S. Sentencing Guidelines (USSG) §§ 2C1.1(b)(2)(A) & 2F1.1(b)(1)(L), using the $933,000 jury award in the Favala case as the "benefit" that Cumberland would have received had Muhammad remained on the jury and been able to influence the verdict. The court also denied Muhammad's requests for reduction in his base offense level based on his arguments that he accepted responsibility, see USSG § 3E1.1, and that he never completed the charged offenses, see USSG § 2X1.1.

       II. ANALYSIS

  1. Sufficiency of the Evidence and Defendant's Proposed Jury Instructions

            At trial, Muhammad's defense to the bribery and obstruction of justice charges rested

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    upon his assertion that he had not actually completed the crimes. Muhammad now offers a similar challenge on appeal, arguing that the evidence did not sufficiently support the guilty verdict. Specifically, Muhammad asserts that the Government's evidence failed to demonstrate that he took a "substantial step" towards committing the crime of bribery and that his telephone conversations did not have the "natural and probable effect" of interfering with the due administration of justice via the jury deliberations. In developing these sufficiency of the evidence arguments, Muhammad further asserts that the court erred in refusing to give his proffered jury instructions, which outlined his defense theory.

            The evidence at trial sufficiently supports a criminal jury verdict when "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also United States v. Brown, 71 F.3d 1352, 1354 (7th Cir.1995). In reviewing sufficiency of the evidence claims, we construe "all the evidence and all the reasonable inferences that...

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