U.S.A v. Al-cholan

• Citation: 610 F.3d 945
• Decision Date: 27 May 2010
• Docket Number: No. 08-2532.,08-2532.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Rahib Ismael-Yasir AL-CHOLAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

610 F.3d 945

UNITED STATES of America, Plaintiff-Appellee,v.Rahib Ismael-Yasir AL-CHOLAN, Defendant-Appellant.

No. 08-2532.

United States Court of Appeals,

Sixth Circuit.

Argued: April 23, 2010.

Decided and Filed: May 27, 2010.^*

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ARGUED: David Herskovic, Farmington Hills, Michigan, for Appellant. Leonid Feller, Assistant U.S. Attorney, Detroit, Michigan, for Appellee. ON BRIEF: David Herskovic, Gerald M. Lorence, Farmington Hills, Michigan, for Appellant. Leonid Feller, Assistant U.S. Attorney, Detroit, Michigan, for Appellee.

Before: GUY, BOGGS, and SUTTON, Circuit Judges.

BOGGS, Circuit Judge.

Defendant Rahib Ismael-Yasir Al-Cholan was caught in a sting operation attempting to purchase the sexual services of a twelve-year-old girl. Al-Cholan was subsequently convicted of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). He makes three arguments on appeal: (1) that he was unlawfully entrapped; (2) that his custodial statements to police should have been suppressed because he did not understand the arresting officers' English-language Miranda warning; and (3) that the district court improperly imposed a sentence enhancement for a pattern of activity involving prohibited sexual conduct. All three arguments lack merit, and we therefore affirm.

BACKGROUND

Al-Cholan is an Iraqi native and a former tank mechanic in the Iraqi army under Saddam Hussein. He immigrated to the United States in 1995 after deserting the army and spending a brief period in Saudi Arabia. For the next twelve years, he lived in Dearborn, Michigan, where he married, fathered two children, and worked as a self-employed auto mechanic. In 2002, he incorporated his own business, Cholan, Inc. The following year, he became a United States citizen. By all outward appearances, Al-Cholan was an upstanding individual living the American dream.

But the truth was substantially darker. In October 2007, when Al-Cholan was 45 years old, he befriended Michael Hanna, a 24-year-old Lebanese immigrant, and, according to Hanna, admitted to him that he harbored a predilection for sex with underage girls and boys. As Hanna testified, Al-Cholan claimed that “Lebanese people ... know how to get ... young children” for sex and asked him several times to procure a child.¹ Concerned, Hanna related this request to his guardian, who passed it on to the Department of Homeland Security's Immigration and Customs Enforcement division (“ICE”). ICE agents then set up a sting operation using Hanna as a cooperator.

On November 7, 2007, while agents listened in, Hanna told Al-Cholan that he knew of a twelve-year-old girl being prostituted by her uncle in Toledo, Ohio for $100 per session. According to Hanna, Al-Cholan responded that “he [could not] go to Toledo because he [was] afraid that the police would catch him on the road if he ha[d] a minor” and asked “if [the girl] could come over here.” Hanna said that she could not. Al-Cholan asked if any other children were available; Hanna said no. With no persuasion or pressure from Hanna, Al-Cholan then decided to accept the offer.

Since Al-Cholan's truck was out of commission, he asked Hanna to drive him to Toledo. En route, Al-Cholan boasted to Hanna that he had had over 100 prior sexual experiences with minors, both in Iraq and in Michigan. At some point, ICE agents realized that the recording device Hanna was wearing had malfunctioned, and directed Hanna via cellular telephone to stop at a gas station. There, the agents met Hanna and fixed the device as Al-Cholan waited obliviously in the car. While at the station, Al-Cholan asked Hanna to purchase Vaseline and condoms, and Hanna did so. After the two men resumed driving, Al-Cholan continued to detail his past sexual molestation of children and his plans to “spend the night” with the twelve-year-old girl.

At approximately 10:00 p.m., Al-Cholan and Hanna arrived at a motel in Toledo, where an ICE agent was posing as the girl's uncle. Al-Cholan paid the agent and briefly conversed with him in English, then attempted to enter the room to which the agent had directed him. Shortly thereafter, he was arrested.

While still on the scene, an agent read Al-Cholan his Miranda rights in English, and Al-Cholan signed an English-language Miranda waiver form. ICE agents then interviewed Al-Cholan for about ten minutes before transporting him to a nearby police station for further questioning. During this second stretch of questioning, Al-Cholan told several inconsistent stories before admitting that he had come to Toledo to rendezvous with a twelve-year-old girl. After he acknowledged this-about five minutes into the station-house interview-Al-Cholan began “act[ing] like he didn't speak English” and, for the first time, requested an interpreter. The agents immediately terminated the interview.

Al-Cholan was subsequently indicted on one count of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). He moved to dismiss the indictment on the ground of entrapment, and the district court denied his motion. He also moved to suppress his custodial statements, arguing that his Miranda waiver was invalid because of his allegedly limited understanding of English. After an evidentiary hearing, this motion, too, was denied.

Following a jury trial in July 2008, Al-Cholan was found guilty. He did not request a jury instruction on entrapment, and none was given. In August 2008, Al-Cholan moved for “a new trial or outright dismissal” on entrapment grounds, among others. The district court denied the motion. In November 2008, the district court sentenced him to 112 months' imprisonment; the sentence included a five-level enhancement under U.S.S.G. § 4B1.5(b) for having demonstrated a pattern of activity involving prohibited sexual conduct. This timely appeal followed.

ANALYSIS

A. Entrapment and Related Defenses

Using (and at times conflating) three related but distinct legal theories, Al-Cholan attacks the fundamental fairness of the sting operation that led to his arrest. These three theories are: (1) the traditional entrapment defense recognized by the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and its progeny; (2) the due-process-based “outrageous government conduct” defense, which the Court hinted at in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), but has never officially recognized; and (3) the “manufactured jurisdiction” defense pioneered in United States v. Archer, 486 F.2d 670 (2d Cir.1973) (Friendly, J.), but scarcely applied since.

This constellation of related claims is technically governed by two different standards of review. “Outrageous government conduct” was not specifically argued below, so we review this claim only for plain error. See United States v. Dedman, 527 F.3d 577, 591 (6th Cir.2008). Nor did Al-Cholan request an entrapment jury instruction below, so to the extent that he challenges the district court's failure to issue such an instruction sua sponte, we review only for plain error. See United States v. Presley, 349 Fed.Appx. 22, 29 (6th Cir.2009). Meanwhile, we review de novo the district court's denial of Al-Cholan's pre-trial and post-trial motions based on the purely legal issues of entrapment as a matter of law and manufactured jurisdiction. See United States v. Utesch, 596 F.3d 302, 306 (6th Cir.2010); United States v. Budd, 496 F.3d 517, 530 (6th Cir.2007).

1. Traditional Entrapment

In Sorrells v. United States, the Court first recognized an entrapment defense under federal criminal law-not as a constitutional imperative, but as a matter of statutory interpretation-reasoning that it “was [not] the intention of the Congress in enacting [the Prohibition Act]” that the statute be used to prosecute otherwise innocent persons “lure[d]” into violating it by law-enforcement agents. 287 U.S. at 448, 53 S.Ct. 210. In subsequent decisions, the Court has recognized that the Sorrells entrapment defense is generally available under other provisions of the federal criminal code, while noting that the defense is “not of a constitutional dimension.” Russell, 411 U.S. at 433, 93 S.Ct. 1637; see also Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992); Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

As we have construed the entrapment defense, “[t]he central inquiry ... is whether law enforcement officials implanted a criminal design in the mind of an otherwise law-abiding citizen or whether the government merely provided an opportunity to commit a crime to one who was already predisposed to do so.” United States v. Pennell, 737 F.2d 521, 534 (6th Cir.1984). Thus, “[a] valid entrapment defense requires proof of two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir.2002). In determining whether a defendant was predisposed to commit the offense, the following factors are relevant:

[t]he character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducements or persuasion; and the nature of the inducement or persuasion supplied by the Government.

United States v. Moore, 916 F.2d 1131, 1137 (6th Cir.1990) (quoting United States v. McLernon, 746 F.2d 1098, 1112 (6th Cir.1984)).

Setting aside the question of inducement, Al-Cholan's entrapment defense fails because the...