U.S. v. Abbouchi
| Decision Date | 13 July 2007 |
| Docket Number | No. 05-50962.,05-50962. |
| Citation | 502 F.3d 850 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Maher Hamdan ABBOUCHI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gail Ivens, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.
Douglas M. Fuchs, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; Percy Anderson, District Judge, Presiding. D.C. No. CR-05-00159-PA.
Before: HARRY PREGERSON, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.
Plaintiff-Appellee's Petition for Rehearing, filed July 23, 2007, is GRANTED. We make the following amendments to our opinion filed on July 13, 2007:
1.
On page 8449 of the slip opinion, after the sentence "Abbouchi challenges several aspects of his supervised release conditions." replace the next sentence with "We remand for the limited purpose of resentencing Abbouchi after the district court has the opportunity to reconsider its imposition of the domestic violence treatment condition and its associated payment condition."
2.
On page 8450 of the slip opinion, after "See Jordan, 256 F.3d at 926 (quoting Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544)." delete the rest of the paragraph except footnote six. Insert the following new paragraph, and move footnote six to the end of this new paragraph:
Because Abbouchi did not object to the imposition of a domestic violence treatment condition before the district court, the district court did not need to resolve Abbouchi's factual challenges to the presentence report. See Fed. R.Crim.P. 32(i)(3)(B) (). Therefore, the district court declined to resolve Abbouchi's objections to paragraphs sixty through seventy of the presentence report, which provided examples of Abbouchi's alleged physical and emotional abuse of his wife. Given the lack of objection to the domestic violence treatment condition and the seriousness of the allegations of spousal abuse, we vacate Abbouchi's sentence and remand to the district court for the limited purpose of resentencing Abbouchi after the district court has had the opportunity to reconsider the imposition of Abbouchi's domestic violence treatment condition and its associated payment condition. See, e.g., United States v. Doe, 488 F.3d 1154, 1163 (9th Cir.2007) (); United States v. Decoud, 456 F.3d 996, 1022 (9th Cir. 2006) (); see also United States v. Matthews, 278 F.3d 880, 885 (9th Cir.2002) (en banc) ().
3.
On page 8451 of the slip opinion, replace the last sentence of the opinion, which reads "We remand for resentencing without the domestic violence treatment condition." with "We remand for the limited purpose of resentencing Abbouchi after the district court has had the opportunity to reconsider the imposition of Abbouchi's domestic violence treatment condition and its associated payment condition."
Further petitions for rehearing will be entertained by this panel if timely made.
PETITION GRANTED.
In this case, we consider the contours of a customs official's border search authority at a regional sorting hub for express consignment services like those offered by UPS. We hold that customs inspections conducted at UPS's regional sorting hubs like the one at Louisville, Kentucky, take place at the functional equivalent of the border.
Defendant-Appellant Maher Hamdan Abbouchi was convicted and sentenced for having committed four counts of transfer of false identification documents in violation of 18 U.S.C. § 1028(a)(2). The government brought criminal charges against Abbouchi after U.S. Bureau of Customs and Border Protection ("Customs") officers who conducted random customs inspections of cargo at the UPS sorting hub in Louisville opened a package sent by Abbouchi to Lebanon. The package contained counterfeit social security and resident alien identification cards. The district court denied Abbouchi's motion to suppress this incriminating evidence, and a jury found him guilty as charged.
Abbouchi timely appeals. He contends on appeal that the contents of his UPS package were inadmissible in evidence and should have been suppressed. He argues that the Customs officers needed reasonable suspicion to open his UPS package because the UPS hub at Louisville is not the functional equivalent of the border, but rather is part of the "extended border." He also argues that social security cards are not "identification documents" within the meaning of § 1028(a)(2). Finally, Abbouchi challenges several aspects of the district court's supervised release conditions.
We have jurisdiction under 28 U.S.C. § 1291. We affirm his convictions, but vacate his sentence and remand for resentencing.
UPS operates a regional sorting hub in Louisville, Kentucky. UPS routes outbound international packages through the Louisville hub, where employees sort packages by country of destination. At these hubs, used by express consignment services like UPS or FedEx, the federal government stations Customs officers to inspect outbound international packages that pass through these hubs. Customs officers open and inspect packages, selected at random, to determine whether they contain prohibited articles or contraband. After Customs officers finish their inspections, UPS employees place the packages into sealed containers and load the containers onto airplanes. The airplanes may depart for foreign airports or first fly to another domestic hub before leaving the United States.
On September 30, 2003, as part of an outbound interdiction operation, Customs Officer Christopher Crace opened a randomly selected package sent by Abbouchi from Diamond Bar, California, and addressed to someone in Lebanon. Inside the package was a sealed envelope containing two social security cards and two permanent resident alien cards. Crace also found a photocopy of a permanent resident alien card, handwritten notes, and an identification booklet written in Arabic. Crace notified his superior, and they determined that the package may contain fraudulent immigration documents. They forwarded the package to the Immigration and Customs Enforcement ("ICE") office in Louisville for further investigation.
The Louisville ICE office forwarded the package to the Los Angeles ICE office on October 24, 2003. ICE Senior Special Agent Christopher Laska used the UPS airbill to trace the origin of the package to the UPS Store in Diamond Bar, California. The store's owner identified Abbouchi as the package's sender.
On January 21, 2004, Agent Paul Yokoyama from the Office of the Inspector General for the Social Security Administration interviewed Abbouchi. Abbouchi signed a Miranda waiver and admitted mailing a UPS package to Lebanon. Abbouchi claimed the package contained his military booklet and some other personal documents. Initially, Abbouchi denied that he knowingly sent the social security and permanent residency cards. Further investigation produced evidence that Abbouchi had on other occasions sent to Lebanon fraudulent documents that the recipients could have used to enter the United States illegally.
On February 17, 2005, a grand jury returned an indictment charging Abbouchi with four counts of transferring false identification documents in violation of 18 U.S.C. § 1028(a)(2), and one count of making a false statement, in violation of 18 U.S.C. § 1001.
Before trial, Abbouchi filed a motion to suppress all evidence derived from the search of his UPS package. At a suppression hearing, Customs Officer Crace testified to Customs inspection practices at regional sorting hubs. District Judge Percy Anderson denied the motion to suppress.
The prosecution dropped the § 1001 false statement charge. At the end of the government's case-in-chief, Abbouchi moved for a partial judgment of acquittal on the counts relating to the social security documents. The district court denied the motion.
On September 29, 2005, the jury found Abbouchi guilty on the four counts of transferring false identification documents. The district court sentenced Abbouchi to sixteen months imprisonment followed by three years of supervised release. Among other things, the supervised release conditions required Abbouchi to enter a domestic violence treatment program. The conditions also required Abbouchi to report to his probation officer within seventy-two hours of reentering the country, and required Abbouchi to "answer truthfully all inquiries by the probation officer. . . ." Abbouchi then brought this appeal.
We begin our analysis by addressing Abbouchi's primary contention that the government violated his Fourth Amendment rights because the Customs officers lacked sufficient predicate, i.e., reasonable suspicion, to open and search his UPS package. Abbouchi argues that the search of his UPS package did not occur at the functional equivalent of the border, but was an "extended" border search that required reasonable suspicion. We disagree.1
The border search doctrine is a narrow exception to the ...
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