U.S. v. Ruhbayan

• Decision Date: 21 April 2005
• Docket Number: No. 04-4103.,04-4103.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rajul RUHBAYAN, a/k/a Creme, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra'el Ruhalamin, a/k/a Jibrael Ruhalamin, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

406 F.3d 292

UNITED STATES of America, Plaintiff-Appellee, v. Rajul RUHBAYAN, a/k/a Creme, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra'el Ruhalamin, a/k/a Jibrael Ruhalamin, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, Defendant-Appellant.

No. 04-4103.

United States Court of Appeals, Fourth Circuit.

Argued: February 4, 2005.

Decided: April 21, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Joseph Barry McCracken, Norfolk, Virginia, for Appellant. James Ashford Metcalfe, Assistant United States

Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

ON BRIEF:

Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia; Karen Lynn Peaden, Third-Year Law Student, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

Before WILKINS, Chief Judge, and KING and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Chief Judge WILKINS and Judge DUNCAN joined.

OPINION

KING, Circuit Judge:

Rajul Ruhbayan appeals his multiple convictions and sentences in the Eastern District of Virginia for offenses arising from an obstruction of justice scheme in his earlier federal criminal trial. He makes several contentions on appeal, most notably that the district court erred in admitting evidence barred by attorney-client and work product privileges and the rules of evidence; in ruling that his conspiracy conviction was not defective under Wharton's Rule; and in enhancing his sentences on the basis of judge-found facts under the Sentencing Guidelines. As explained below, we reject each of Ruhbayan's challenges to his convictions. We vacate his sentences, however, and remand for resentencing pursuant to United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny.

I.

The factual scenario underlying the convictions and sentences on appeal relates to Ruhbayan's scheme to have his former girlfriend, Yolanda Goodman, testify falsely during his September 2000 trial in the Eastern District of Virginia on drug trafficking and firearms charges (the "First Trial"). Following the First Trial, Goodman cooperated with the Government and provided evidence against Ruhbayan. As a result, Ruhbayan was indicted in February 2002 for five additional offenses arising from his obstruction of justice scheme. This indictment resulted in Ruhbayan's "Second Trial," and the convictions and sentences from which this appeal ensues.

A.

On August 25, 2000, Ruhbayan was indicted for multiple felonies, including being a felon in possession of a firearm, in contravention of 18 U.S.C. § 922(g)(1), and related criminal offenses. During his First Trial, the prosecution presented several witnesses to Ruhbayan's drug trafficking and firearms activities, including Martinsville and Suffolk, Virginia, police officers. For example, officers testified that, incident to Ruhbayan's arrest on April 14, 2000, they recovered a loaded nine-millimeter pistol, which had been hidden between cushions in the back seat of Ruhbayan's van.

In response to the Government's evidence, Ruhbayan presented the testimony of three witnesses, including himself and Goodman. In his defense, Ruhbayan admitted that he was a convicted felon, but denied that he was a drug dealer and had ever possessed or used firearms, including the pistol recovered from his van. Goodman testified on Ruhbayan's behalf that she was his girlfriend, that she had often been to his home, and that she had never seen him with either drugs or firearms. Importantly, she admitted that she was a convicted felon and had placed the pistol in the van without Ruhbayan's knowledge. Thereafter, the jury in the First Trial convicted Ruhbayan on two lesser-included misdemeanor offenses—simple possession and conspiracy to possess crack cocaine—but acquitted him on the other counts, including the § 922(g)(1) firearm possession charge. After being sentenced to twenty-four months in prison, Ruhbayan appealed, and we affirmed. See United States v. Ruhbayan, 15 Fed.Appx. 116 (4th Cir.2001) (unpublished).

B.

1.

On February 2, 2001, Goodman was indicted by the grand jury, apparently as the result of her testimony in the First Trial. She was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), having admitted under oath that she was a convicted felon and that she had possessed the pistol found in Ruhbayan's van. Goodman then changed her story, advising the Government that she had testified falsely in the First Trial regarding Ruhbayan's drug trafficking and firearms activities. On May 9, 2001, she entered a plea of guilty to an information charging her with obstruction of justice, in violation of 18 U.S.C. § 1503. In her plea agreement, Goodman stipulated that she had:

testified falsely [in the First Trial] that she had possessed the firearm and ammunition and that she had placed them in Ruhbayan's vehicle without his knowledge on or about April 14, 2000, in Suffolk, Virginia, when she knew in fact that she had never possessed the firearm and ammunition, had never placed them in Ruhbayan's vehicle, and was testifying falsely as requested by ... Ruhbayan in order to assist him in misleading the jury....

Goodman also agreed to testify against Ruhbayan in any subsequent trials, and she provided the Government with more than fifty letters he had written to her while awaiting his First Trial. In the letters, Ruhbayan first directed Goodman to find a non-felon to testify falsely for him by admitting possession of the pistol, and he eventually convinced Goodman to lie on his behalf about placing the pistol in his van.

On February 12, 2002, the grand jury returned a five-count indictment against Ruhbayan for the events relating to Goodman and the First Trial, charging him with (1) conspiracy to commit perjury and obstruct justice, in contravention of 18 U.S.C. § 371; (2) corruptly influencing and attempting to influence the testimony of a witness, in violation of 18 U.S.C. § 1512(b)(1); (3) perjury, in contravention of 18 U.S.C. § 1623; (4) subornation of perjury, in violation of 18 U.S.C. § 1622; and (5) obstruction of justice, in contravention of 18 U.S.C. § 1503. On April 10, 2002, the district court denied Ruhbayan's motion to dismiss on the basis of collateral estoppel, premised on his claim that the verdict in the First Trial barred the charges in the new indictment. Ruhbayan then appealed the denial of his collateral estoppel claim to this Court, asserting jurisdiction under the collateral order doctrine. We affirmed by published opinion, United States v. Ruhbayan, 325 F.3d 197, 205 (4th Cir.2003), holding that collateral estoppel did not bar the prosecution of Ruhbayan on the perjury and subornation of perjury charges, notwithstanding his acquittal on certain of the drug trafficking and firearms-related charges in the First Trial.¹ The district court subsequently denied several of Ruhbayan's other pre-trial motions, including motions to quash the prosecution's subpoena of James Melton (Ruhbayan's lawyer in the First Trial), and any documents from Melton's files concerning his representation of Ruhbayan, on the basis of the attorney-client and work product privileges; to bar the introduction of evidence concerning Ruhbayan's history of drug trafficking and firearms activities; and to dismiss the conspiracy count on the basis of Wharton's Rule.

2.

In Ruhbayan's Second Trial, the prosecution introduced the testimony of seven witnesses. As the district court observed, however, the prosecution's most important evidence was Goodman's testimony and the letters Ruhbayan had written to her prior to his First Trial. See United States v. Ruhbayan, No. 2:02cr29, slip op. at *4 (E.D.Va. Feb. 3, 2004).² Goodman testified in the Second Trial that her testimony in the First Trial had been false, that she had never possessed the pistol recovered from Ruhbayan's van, that she had observed Ruhbayan with firearms on several occasions, and that he had been engaged in substantial drug trafficking activities. She also testified to Ruhbayan's mental and physical abuse, e.g., that Ruhbayan prohibited her from answering the door of their residence, required her to wear Muslim headdress and garb, pushed her off the porch, and beat and choked her. In addition, lawyer Melton testified that Ruhbayan had inquired before trial into possible sentences, under federal and state law, for possession of a firearm as a convicted felon, and that Goodman had contacted Melton about testifying for Ruhbayan in the First Trial, asserting that the pistol found in his van belonged to her.³ Several police officers from Martinsville and Suffolk also testified to Ruhbayan's possession of cash and cocaine, their discovery of the pistol in the van, and their subsequent execution of a search warrant for his home and the recovery of multiple firearms, drug residue and drug paraphernalia.⁴

Ruhbayan testified in his own defense in his Second Trial, maintaining, as he did in the First Trial, that the pistol found in the van was not his. He asserted that, by his letters to Goodman, he only sought to have her testify truthfully and that much of his language was an attempt at rap lyrics. On October 24, 2003, the Second Trial jury returned a guilty verdict on all five counts. Ruhbayan then sought judgment of acquittal and a new trial, which the district court denied on February 3, 2004. See United States v. Ruhbayan, No. 2:02cr29 (E.D.Va.).

3.

On February 4, 2004, the court conducted Ruhbayan's sentencing hearing. In determining Ruhbayan's sentencing range, the court enhanced his offense level by four levels for his leadership role in an "otherwise extensive" crime under § 3B1.1(a) of the Sentencing Guidelines, finding, inter alia, that the criminal activity included Ruhbayan, Goodman, Melton,...