815 F.3d 228 (5th Cir. 2016), 14-20339, United States v. Danhach
|Citation:||815 F.3d 228|
|Opinion Judge:||STEPHEN A. HIGGINSON, Circuit Judge.|
|Party Name:||UNITED STATES OF AMERICA, Plaintiff - Appellee v. SAMEH KHALED DANHACH, also known as Andrew, Defendant - Appellant|
|Attorney:||For UNITED STATES OF AMERICA, Plaintiff - Appellee: Amy Howell Alaniz, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX. For SAMEH KHALED DANHACH, also known as Andrew, Defendant - Appellant: Yolanda Evette Jarmon,...|
|Judge Panel:||Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.|
|Case Date:||March 09, 2016|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Defendant 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. The court concluded that the district court did not err in denying the motion to suppress evidence found in his warehouse where defendant offered no evidence to rebut testimony or show that he withdrew his oral... (see full summary)
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Appeal from the United States District Court for the Southern District of Texas.
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.
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.
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
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...
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