U.S. v. Abumayyaleh

• Decision Date: 01 July 2008
• Docket Number: No. 07-2325.,07-2325.
• Citation: 530 F.3d 641
• Parties: UNITED STATES of America, Appellee, v. Nabil Hamadeh ABUMAYYALEH, also known as Nabel Mahmoud Hamadeh, also known as Billy Abumayyaleh, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

530 F.3d 641

UNITED STATES of America, Appellee, v. Nabil Hamadeh ABUMAYYALEH, also known as Nabel Mahmoud Hamadeh, also known as Billy Abumayyaleh, Appellant.

No. 07-2325.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2008.

Filed: July 1, 2008.

Howard Bass, argued, Burnsville, MN, for appellant.

LeeAnn K. Bell, AUSA, argued, Minneapolis, MN, for appellee.

Before RILEY, JOHN R. GIBSON, and BENTON, Circuit Judges.

RILEY, Circuit Judge.

Nabil Hamadeh Abumayyaleh (Abumayyaleh) was found guilty by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Abumayyaleh to 100 months in prison. Abumayyaleh appeals his conviction and sentence. For the reasons stated below, we affirm Abumayyaleh's conviction and reverse his sentence.

I. BACKGROUND

Abumayyaleh became the object of an investigation while managing Crystal Foods, a family owned convenience store. During the initial stages of the investigation in 2004, a government informant told Abumayyaleh the informant had a friend with firearms for sale. In response, Abumayyaleh stated he was not interested in the firearms, but he was interested in buying stolen video game systems.

In 2005, an undercover officer began meeting and speaking with Abumayyaleh. During this time, the undercover officer sold purportedly stolen items, such as a plasma TV, video games, video game systems, and computers, to Abumayyaleh. Over the course of the investigation, Abumayyaleh bought over $7,000 of purportedly stolen merchandise from the undercover officer.

The topic of weapons eventually came up in the meetings, and Abumayyaleh stated he had weapons all around him. On another occasion, Abumayyaleh stated he was "locked and loaded." As a result, the government shifted its investigation to determine if Abumayyaleh was interested in purchasing purportedly stolen firearms. To gauge Abumayyaleh's interest, the government set up a "flash" of firearms on October 12, 2005, in which several guns were shown to Abumayyaleh, but he was informed he was not permitted to purchase them. Abumayyaleh was clearly irritated at his inability to buy the firearms.

During one conversation between the undercover officer and Abumayyaleh, the officer stated he was going to Chicago to pick up his "thang" or his "strap," meaning his firearm. To this, Abumayyaleh replied, "[y]ou never bring me back none."

On November 28, 2005, Abumayyaleh was finally given the opportunity to buy purportedly stolen firearms from the undercover officer. At the sale, Abumayyaleh purchased a Colt .45 and a video game system. Abumayyaleh placed the Colt .45 in the office of the store. Abumayyaleh indicated his interest in an H & K assault rifle offered for sale, but declined to purchase it because he did not have enough money.

Abumayyaleh was arrested and the officers executed a search warrant on the convenience store. During the search, four firearms, including the Colt .45 caliber handgun purchased from the officer, were recovered from the same office area, where Abumayyaleh retreated twice during the sale on November 28. The Colt .45 caliber handgun was found in a red bin approximately four to five feet from the desk. A loaded .380 caliber handgun was found in a stack of boxes to the left of the desk. A Smith and Wesson .38 caliber handgun was found in the top left drawer of the desk, and a .22 caliber handgun was found between papers in the left desk drawer. Multiple rounds of ammunition were found throughout the office. In addition, officers found a soft-sided carrying case for a handgun, containing two magazines and ammunition. Some of Abumayyaleh's personal documents were found in the same desk as the firearms. Other members of Abumayyaleh's family had access to this office in the store.

On July 14, 2006, a jury convicted Abumayyaleh of being a felon in possession of a firearm, identifying all four weapons discovered in the office, in violation of 18 U.S.C. § 922(g)(1). After calculating a base offense level of 20, the district court enhanced Abumayyaleh's sentence by eight levels, resulting in a guidelines range of 130 to 162 months, with a statutory maximum sentence of 120 months. The district court sentenced Abumayyaleh to 100 months imprisonment.

Abumayyaleh appeals (1) the district court's denial of his motion for judgment as a matter of law, arguing entrapment; (2) the sufficiency of the evidence to support his conviction; (3) the denial of his motion to suppress evidence obtained in a search of his place of business; (4) the district court's admission of prior convictions; and (5) the base offense level calculated by the district court and the application of enhancements. We affirm Abumayyaleh's conviction and reverse his sentence.

II. DISCUSSION

A. Motion for Judgment of Acquittal

Abumayyaleh appeals the district court's denial of his motion for judgment of acquittal, claiming he was entrapped as a matter of law. Abumayyaleh argues he was induced and did not have the predisposition to violate the law by obtaining and possessing a firearm. Abumayyaleh contends the undercover officer focused on him and caused him to purchase a firearm in violation of the law by implanting the criminal design in his mind.

We review de novo the district court's denial of Abumayyaleh's motion for judgment of acquittal. See United States v. Hilliard, 490 F.3d 635, 640 (8th Cir. 2007) (citation omitted). "In reviewing a district court's denial of a motion for acquittal based on the defense of entrapment, we view the evidence in the light most favorable to the government." United States v. Crump, 934 F.2d 947, 956 (8th Cir.1991) (citation omitted). "Entrapment is an affirmative defense, and the question of entrapment is generally for the jury." Id. (citation omitted). The defense of entrapment has two elements (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. See United States v. Stanton, 973 F.2d 608, 609-10 (8th Cir. 1992) (citation omitted). "`The defendant carries the initial burden of presenting some evidence that he or she was induced by government agents to commit the offense.'" United States v. Van Slyke, 976 F.2d 1159, 1162 (8th Cir.1992) (quoting United States v. McGuire, 808 F.2d 694, 696 (8th Cir.1987) (per curiam)).

Government inducement is "conduct that creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense." Stanton, 973 F.2d at 610 (citation and internal quotation marks omitted). "[F]riendship with [a] confidential informant is not evidence of entrapment." United States v. Ford, 918 F.2d 1343, 1349 (8th Cir.1990). "Inducement cannot be shown if government agents merely provide the opportunity or facilities to commit the crime or use artifice and stratagem." Stanton, 973 F.2d at 610 (citations omitted).

The government conduct in this case did not rise to the level of inducement. Abumayyaleh was simply given the opportunity to purchase the firearm after becoming acquainted with the undercover officer. Abumayyaleh does not contend the government threatened, cajoled, coerced, harassed, promised rewards, or pleaded with him to purchase the firearm. Abumayyaleh claims the government informant used his friendship as leverage. However, Abumayyaleh cites no conduct that would rise to the level of inducement.

Abumayyaleh relies on Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), where the Supreme Court held the defendant was entrapped as a matter of law when a fellow recovering addict pleaded with him to procure drugs to which both of them were addicted. Sherman does not control the outcome in this case because Abumayyaleh's purchase of the Colt .45 was not in response to the pleadings of a friend. Though Abumayyaleh claims the undercover officer had established a friendship with him, it reasonably appears the relationship was primarily a business relationship. Regardless of the nature of the relationship, at no time did the undercover officer plead with Abumayyaleh to purchase any firearm. At one point in time, Abumayyaleh was informed he was not permitted to purchase firearms shown to him. Abumayyaleh's response was one of irritation, showing his desire (or predisposition) to purchase a firearm.

The district court correctly denied Abumayyaleh's motion for judgment as a matter of law because the government did not induce Abumayyaleh to buy the firearm. Because we find Abumayyaleh did not show inducement, we need not address whether he had the predisposition to commit the crime. See United States v. Loftus, 992 F.2d 793, 798 (8th Cir.1993) (noting the prosecution is not required to prove predisposition when the defendant has not shown inducement).

B. Sufficiency of the Evidence

Abumayyaleh argues the government presented insufficient evidence he possessed the firearms found in the office because other members of his family had access to the office. "[S]ufficiency of the evidence [is reviewed] de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007) (citation and internal quotation marks omitted). "[W]e may reverse only if we find that no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (citation and internal quotation marks omitted).

To convict Abumayyaleh, "the government was required to prove beyond a reasonable doubt . . .: (1) [Abumayyaleh] previously had been convicted of a crime punishable by a term of imprisonment exceeding one year, (2) [Abumayyaleh] knowingly possessed a firearm and ammunition, and (3) the firearm and ammunition had been in or had affected interstate commerce." Id. (citation omitted). The only contested issue in this...