U.S. v. Abuelhawa

• Decision Date: 25 April 2008
• Docket Number: No. 07-4639.,07-4639.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salman Khade ABUELHAWA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

523 F.3d 415

UNITED STATES of America, Plaintiff-Appellee, v. Salman Khade ABUELHAWA, Defendant-Appellant.

No. 07-4639.

United States Court of Appeals, Fourth Circuit.

Argued: March 19, 2008.

Decided: April 25, 2008.

ARGUED: Timothy Joseph McEvoy, Odin, Feldman & Pittleman, P.C., Fairfax, Virginia, for Appellant. David Brian Goodhand, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney, Julie Warren, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and WILLIAM L. OSTEEN, Jr., United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge SHEDD and Judge OSTEEN joined.

OPINION

WILLIAMS, Chief Judge:

Salman Khade Abuelhawa appeals his conviction and sentence for violating 21 U.S.C.A. § 843(b) (West 1999), which prohibits knowingly or intentionally using a communication facility in committing, causing, or facilitating the commission of certain felonies, including drug distribution. Abuelhawa argues that he cannot be convicted of violating § 843(b) because the drug distribution in question was his purchase of cocaine for personal use, a misdemeanor, see 21 U.S.C.A. § 844(a)(1) (West 1999 & Supp.2007). He also contests the sufficiency of the evidence supporting his conviction under § 843(b). Disagreeing with Abuelhawa on both counts, we affirm.

I.

In early 2000, the Federal Bureau of Investigation ("FBI") began an investigation into possible cocaine distribution by Mohammed Said in the Skyline area of Virginia, just outside of Washington, D.C. During the course of this investigation, in June 2003, the FBI applied for, and was granted, a Title III warrant to wiretap Said's cell phone.¹ In this case, the wiretap captures "both phone numbers, ... the time of the phone call, the date of the phone call, [and] the duration of the phone call," anytime a call, either incoming or outgoing, occurs between the wiretapped phone and another phone. (J.A. at 125.) Agents are also able to "intercept the conversation that occurs" between the two phones. (J.A. at 125.) The FBI can then subpoena a telephone company to identify the subscribers of telephones used to make contact with the wiretapped phone.

In July 2003, FBI agents monitoring the wiretap of Said's cell phone issued a subpoena in an effort to identify the subscriber with the cell phone number 703-969-8743. From this subpoena, the FBI learned that the number belonged to Abuelhawa. Thereafter, the FBI monitored a series of calls between Said and Abuelhawa that form the basis of this appeal.

The wiretap recorded a total of eight calls between Abuelhawa and Said in early July 2003: the two men spoke twice on July 2, 2003, three times on July 5, and three times on July 12.² On July 2, at approximately 10:12 p.m., Abuelhawa called Said and instructed: "Bring me the half by the Hilton or do you want me to come to you?" (J.A. at 318.) An FBI agent as well as an expert witness testified that Abuelhawa's reference to "the half," was to a half gram of cocaine. Said called Abuelhawa back at 10:20 p.m. Said asked Abuelhawa, "Where are you?," to which Abuelhawa replied, "I am coming to you." (J.A. at 319.) The call ended with Abuelhawa saying "I have seen you." (J.A. at 319.)

On July 5, 2003, the wiretap intercepted three additional calls between Abuelhawa and Said, beginning at 10:12 p.m. In the first call, Abuelhawa asked for "[o]ne of the small, 100 type," continuing, "[l]ike, like that time when you and I, when I saw As'ad."³ (J.A. at 320.) Said answered, "Ah. Ok." (J.A. at 320.) Abuelhawa continued, "But please for God's sake, fix it well. May God keep you." (J.A. at 320.) Said responded, "Alright. Alright. Where?" (J.A. at 320.) Abuelhawa reported that he was still at home, and Said instructed Abuelhawa to "[w]ait for me in Skyline until I come back [from picking up my sister]." (J.A. at 320.) The Government's expert witness testified that the reference to the "100 type" was a reference to one gram of cocaine, which has a retail value between $80-$120.

At 11:17 p.m., Said called Abuelhawa to ask his whereabouts. Abuelhawa responded that he was "almost in the neighborhood" and asked to meet "[b]y the Eleven." (J.A. at 322.) Said responded, "No. No. Meet me out on the street that is after it.... In front of the street from where you are talking to me." (J.A. at 322.) Abuelhawa responded, "Fine. Ok." (J.A. at 322.) Four minutes later, at 11:21 p.m., Said again called Abuelhawa and asked, "Have your excellency arrived?" (J.A. at 323.) Abuelhawa responded, "I have arrived man.... but there are two people at that ... so I drove down a little further." (J.A. at 323.) Said and Abuelhawa discussed this latest development for a moment, with Said instructing Abuelhawa to "go further down" because "[i]t is better." (J.A. at 323.) Abuelhawa responded, "Fine. Ok," and Said said, "Alright." (J.A. at 323.) No further phone calls were intercepted on July 5.

Finally, on July 12, the FBI intercepted three calls between Said and Abuelhawa. First, at 8:30 p.m., Abuelhawa called Said and asked, "Where did the free stuff go? Is it gone?" (J.A. at 324.) Said responded in the affirmative, and Abuelhawa said, "We should celebrate that it is gone. It was good." (J.A. at 324.) Abuelhawa continued, "May God give you health. So will I see you after an hour?" (J.A. at 324.) Said said, "[A]lright," and then he asked, "How much do you need?" (J.A. at 324.) Abuelhawa responded, "A half." (J.A. at 324.)

At 9:18 p.m., Abuelhawa called Said again, and said, "Ok. Listen. Make it one of the big ones. The 100 type." (J.A. at 326.) Said assented and asked Abuelhawa when he would arrive; Abuelhawa responded, "I am, I am on my way. I am leaving home." (J.A. at 326.) The two men then agreed to meet at Said's "store." (J.A. at 326.) At 9:47 p.m., another call occurred between Said and Abuelhawa. (J.A. at 327.) Said asked where Abuelhawa was; Abuelhawa responded, "Right here. I am, I am coming to you in two minutes." (J.A. at 327.) Said expressed his desire to leave the shop, stating, "I really want to leave this place." (J.A. at 327.) Abuelhawa pleaded, "I am coming to you man. One minute." (J.A. at 327.) Said relented and told Abuelhawa, "Come. Meet me at the grill. Ok. Bye." (J.A. at 327.) At trial, testimony from the Government established that Said's father owned the Skyline butcher shop and a restaurant called the Skyline Grill, which were located next door to each other. An FBI agent further testified that the Skyline Grill "is a location where Mohammed Said distribute[d] cocaine." (J.A. at 148.)

Based upon these intercepted telephone calls, Abuelhawa was placed under arrest at his home on October 17, 2003. After being advised of his Miranda rights, Abuelhawa agreed to speak with the FBI agents who arrested him and admitted that he purchased cocaine from Said and a dealer named Issam Khatib. Abuelhawa told the agents that he originally purchased cocaine, usually in one-half gram amounts, from Khatib and that Said became his dealer after Khatib left the business and Said assumed control of Khatib's customer base. Abuelhawa further told the agents that he used his cell phone to call Said's cell phone in order to buy cocaine in one-half gram amounts and that he and Said would usually meet outside of the Skyline Grill to complete the drug transactions. Said would hand the cocaine, in a tin-foil package, to Abuelhawa through Abuelhawa's car window. Abuelhawa gave no statements indicating that he purchased cocaine on the specific dates of July 5 and July 12.

On January 25, 2007, a federal grand jury sitting in the Eastern District of Virginia charged Abuelhawa in a seven-count indictment with violating 21 U.S.C.A. § 843(b) and 18 U.S.C.A. § 2 (West 2000). The indictment charged Abuelhawa with unlawfully, knowingly, and intentionally using a communications facility — a telephone — in committing, causing, and facilitating the commission of a violation of 21 U.S.C.A. § 841(a)(1) (West 1999), distribution of cocaine. Counts Two through Four alleged violations of § 843(b) based upon the three July 5th phone calls, while Counts Five through Seven focused on the three July 12th calls. Count One, which was dismissed prior to trial for reasons not relevant to the appeal, focused on a phone call made on June 29, 2003.

Following the close of the Government's case-in-chief, Abuelhawa moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The district court denied the motion, explaining:

You may be right on the July 5 incidents. If that's all the government had, if they only had one set of conversations, I think I'd be granting your motion, but you have a week later a second round of conversations, and it seems to me it's not an unreasonable inference to draw the conclusion that if the first set of transactions had been unsuccessful, you'd have either heard some complaints or something in the second round.

(J.A. at 201-02.)

The jury thereafter convicted Abuelhawa on all six of the remaining counts in the indictment. Abuelhawa followed his oral Rule 29 motion with a later written one, which the district court denied prior to sentencing. The district court sentenced Abuelhawa to 24 months probation and a $2,000 fine.⁴ Abuelhawa timely noted an appeal, and we possess jurisdiction under 28 U.S.C.A. § 1291 (West 2006) and 18 U.S.C.A. § 3742(a) (West 2000).

II.

Abuelhawa pursues two arguments on appeal regarding his conviction. First, Abuelhawa contends that § 843(b) is not violated when an individual facilitates the purchase of a drug quantity for personal use. Second, Abuelhawa contends that, even assuming § 843(b) criminalizes such conduct, the Government produced insufficient...