United States v. Danhach

• Decision Date: 09 March 2016
• Docket Number: No. 14–20339.,14–20339.
• Citation: 815 F.3d 228
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Sameh Khaled DANHACH, also known as Andrew, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

815 F.3d 228

UNITED STATES of America, Plaintiff–Appellee
v.
Sameh Khaled DANHACH, also known as Andrew, Defendant–Appellant.

No. 14–20339.

United States Court of Appeals, Fifth Circuit.

March 9, 2016.

815 F.3d 231

Amy Howell Alaniz, Asst. U.S. Atty. (argued), Renata Ann Gowie, Asst. U.S. Atty.,

815 F.3d 232

U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Yolanda Evette Jarmon, Esq. (argued), Law Office of Yolanda Jarmon, Houston, TX, for Defendant–Appellant.

Sameh Khaled Danhach, Lexington, KY, Pro Se.

Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Sameh Khaled Danhach was convicted by a jury of several criminal offenses relating to a scheme to steal and resell over-the-counter (OTC) medication, brand-name baby formula, and similar goods. He appeals the denial of a motion to suppress evidence found in a search of his warehouse, the sufficiency of the evidence supporting most of his counts of conviction, and his sentence. Finding no reversible error, we affirm.

I. BACKGROUND

Danhach was indicted for acting as a high-level "fence": someone who receives stolen goods from "boosters" (thieves) and resells them for profit. The indictment alleged that Danhach and his partner, Alex Kheir, acting through Houston-based companies called SKD Trading and Lifetime Wholesale, sold OTC medication and baby formula stolen from retail stores and pharmacies. A superseding indictment charged Danhach with conspiracy to transport stolen goods in interstate commerce, in violation of 18 U.S.C. § 371 (Count 1); aiding and abetting the interstate transportation of stolen OTC medication and baby formula, in violation of 18 U.S.C. §§ 2314 and 2 (Counts 2 through 4); and aiding and abetting the obstruction of justice by concealing or altering paper ledgers and a video recorder hard drive with evidentiary value, in violation of 18 U.S.C. §§ 1512(c)(1) and 2 (Counts 5 and 6).

Danhach filed a motion to suppress evidence seized from his Houston warehouse, arguing that government agents conducted an unlawful warrantless sweep of the building and then obtained an invalid search warrant by using illegally obtained information and falsifying the warrant affidavit. The district court denied that motion after holding an evidentiary hearing.

After a trial, the jury found Danhach guilty on all six counts, and the district judge denied his motion for a judgment of acquittal or a new trial. The district court imposed concurrent sentences of 60 months for the conspiracy count, 120 months for the interstate transportation of stolen goods counts, and 151 months for the obstruction of justice counts. The court also ordered concurrent three-year terms of supervised release and $100 special assessments for each count, and restitution of approximately $540,000. Danhach timely appealed.

II. DISCUSSION

On appeal, Danhach argues that the district court should have (1) granted his motion to suppress, (2) ruled the evidence presented at trial insufficient to support five of his counts of conviction, and (3) sentenced him differently. We disagree for the following reasons.

A. Motion to Suppress

Danhach first argues that the district court erred in failing to suppress evidence seized from his Houston warehouse pursuant to a search warrant. Where, as here, the district court denies a

815 F.3d 233

motion to suppress after hearing live testimony, we "accept the trial court's factual findings unless clearly erroneous or influenced by an incorrect view of the law," but review de novo the "ultimate conclusion about the constitutionality of the law enforcement conduct." United States v. Roberts, 612 F.3d 306, 309 (5th Cir.2010) (citation omitted). "All evidence is viewed in the light most favorable to the prevailing party, here the Government." United States v. Montgomery, 777 F.3d 269, 272 (5th Cir.2015). We "may affirm the district court's ruling on a motion to suppress based on any rationale supported by the record." United States v. Waldrop, 404 F.3d 365, 368 (5th Cir.2005).

Prior to the search, the Houston Police Department and FBI had been investigating Danhach and Kheir for their involvement with organized retail theft. During this investigation, agents had learned that Danhach and Kheir were using a particular warehouse, to which a car used for stealing OTC products had been linked. The agents had observed, among other things, people arriving at the warehouse to unload black trash bags—which investigators knew were often used to steal OTC products from stores. On March 1, 2012, agents surveilling the warehouse saw Kheir and an unidentified person enter the building; the agents then approached and knocked on the door in an effort to gain entry. Once inside, the agents saw indicators of a stolen OTC operation, which they cited to obtain a search warrant and seize evidence presented at trial.

The district court did not err in denying the motion to suppress. In their initial attempt to gain entry to the warehouse, the agents permissibly used the "knock and talk" technique, which we and other courts have "recognized ... as a reasonable investigative tool when officers seek to gain an occupant's consent to search or when officers reasonably suspect criminal activity." United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001) ; see also Kentucky v. King, 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do."). The district court's factual finding that Kheir then permitted the officers to enter the building was far from clearly erroneous: it was supported by testimony that one of the agents asked Kheir for permission before Kheir allowed them inside, and by surveillance video consistent with that agent's account.¹

Unrebutted testimony, again consistent with video evidence presented at the suppression hearing, establishes that, once the agents were inside the building, Kheir gave them permission to walk back to the main warehouse area to find an unidentified worker that Kheir had indicated was there. Uncontradicted evidence also supports the district court's finding that once the agents entered that area, they saw in plain view what immediately appeared to be stolen OTC medication and other items consistent with an organized retail theft operation. See United States v. Jackson, 596 F.3d 236, 242 (5th Cir.2010) (explaining that evidence can be cited in support of a search warrant if "(1) the police lawfully

815 F.3d 234

entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was ‘immediately apparent;’ and (4) the police had a lawful right of access to the item" (citation omitted)). Indeed, from our review of the record, the district court did not clearly err in finding that the agents lawfully observed all of the evidence cited in the affidavit supporting the search warrant.²

Even if any evidence cited in the warrant affidavit was not covered by the plain-view doctrine, the record supports the conclusion that the agents asked for—and Kheir gave—consent for a full search of the warehouse. In order to satisfy the consent exception to the Fourth Amendment's presumptive warrant requirement, "the government must demonstrate that there was (1) effective consent, (2) given voluntarily, (3) by a party with actual or apparent authority." United States v. Scroggins, 599 F.3d 433, 440 (5th Cir.2010). Both Danhach and Kheir indicated that Kheir was in charge of the warehouse. Here, one of the agents consistently testified that, after he entered the main warehouse area and saw apparently stolen goods, he asked for and received Kheir's uncoerced oral consent to "search the warehouse." Danhach offered no evidence to rebut that testimony or show that he withdrew his oral consent.³ Thus, the consent and plain-view exceptions justified all of the observations used to obtain the search warrant.⁴

Finally, Danhach argues that the search warrant was invalid under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because the affidavit supporting it contained materially false or misleading information. We are unpersuaded. If a defendant establishes

815 F.3d 235

by a preponderance of the evidence that false information was intentionally or recklessly included in an affidavit, the court must "excise the offensive language from the affidavit and determine whether the remaining portion would have established the necessary probable cause." United States v. Cavazos, 288 F.3d 706, 710 (5th Cir.2002) (citing Franks, 438 U.S. at 156–57, 98 S.Ct. 2674 ). This rule also extends to material omissions, but only intentional or reckless ones. See United States v. Martin, 615 F.2d 318, 328–29 (5th Cir.1980). If the defendant fails to meet his burden of proving "that false information was given intentionally or recklessly ... or if the affidavit would have sufficiently...