U.S. v. Abushi

• Decision Date: 08 June 1982
• Docket Number: Nos. 81-1030,s. 81-1030
• Citation: 682 F.2d 1289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ibrahim ABUSHI, Mahmud A. Ghanem, Mohammed Eid Awad, and Muti Shuman, Defendants-Appellants. to 81-1033.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1289

682 F.2d 1289

UNITED STATES of America, Plaintiff-Appellee, v. Ibrahim ABUSHI, Mahmud A. Ghanem, Mohammed Eid Awad, and Muti Shuman, Defendants-Appellants.

Nos. 81-1030 to 81-1033.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 17, 1981.

Decided June 8, 1982.

Martin A. Nakahara, Oakland, Cal., for Abushi.

Alan Dressler, San Francisco, Cal., argued, for Ghanem, Awad, Shuman; Christine E. Sinnott, San Francisco, Cal., on brief.

Joseph M. Burton, Asst. U. S. Atty., San Francisco, Cal., for U. S. A.

Appeal from the United States District Court for the Northern District of California.

Before KILKENNY, WALLACE and SNEED, Circuit Judges.

WALLACE, Circuit Judge:

Appellants Abushi, Awad, Ghanem, Shuman, and seven others were indicted on charges of conspiracy to defraud the United States through the illegal redemption of food stamp coupons in violation of 18 U.S.C. § 371, and the illegal acquisition and redemption of food stamp coupons in violation of 7 U.S.C. § 2024(b), (c). Appellants were tried jointly, convicted by a jury, and sentenced to imprisonment for terms ranging from six months to five years plus various fines. On appeal, they raise issues involving the sufficiency of the evidence supporting their conspiracy convictions, the district court's denial of their motion for misjoinder under Fed.R.Crim.P. 8(b) and severance under Fed.R.Crim.P. 14, their entitlement to a judgment of acquittal on the ground of entrapment, and the propriety of various jury instructions. We affirm.

I

In April of 1978, special agents of the Agriculture Department began an investigation into illegal food stamp trafficking ¹ at Reno's Liquor in San Francisco, California. Reno's Liquor is owned by Ghanem. His two brothers, one of whom is appellant Awad, run the store for him. Between April 4, 1978 and May 6, 1978, Special Agents Lee and Cotton sold various amounts of food stamps for cash at Reno's Liquor. The purchasers of these food stamps were Ghanem's two brothers.

Approximately one year later, on April 19, 1979, Lee and Cotton visited Reno's Liquor and discussed with Awad the sale of $10,000 worth of food stamps. Arrangements were made for Awad to meet the agents later that evening. Without the agents' knowledge, Awad arranged for Ghanem and Shuman to attend the meeting. During the meeting, Ghanem negotiated with Cotton for the purchase of $10,000 in food stamps for $3,000 in cash.

On April 23, 1979, Cotton again met with Ghanem and Shuman at the Third World Market, a store owned by Ghanem, to discuss the sale of $24,000 worth of food stamps. Cotton testified that he asked Ghanem for a better price than the 30% that he had previously received. Ghanem stated that he had to send the food stamps to New York in order to redeem them and thus had to allow for travel expenses and a profit for his confederates in New York. After purchasing the food stamps for $7,200 in cash, Ghanem informed Cotton that he was leaving San Francisco for some time and that in his absence Cotton should contact Shuman.

During August and September of 1979, special agents of the Agriculture Department sold food stamps to Abushi for cash on five separate occasions at Abushi's store, Russ's Liquors, located in Oakland, California. The largest transaction involved $19,500 in food stamps for $6,000 in cash. During the negotiations for this sale, the special agent indicated dissatisfaction with the price offered by Abushi. Abushi explained to the agent that the low figure was due to the fact that he had to go through other people to redeem the stamps since he could not redeem them through his own store. Abushi had previously lost his authorization to redeem food stamps at Russ's Liquor as a result of an investigation by the Department of Agriculture.

In all the transactions described above, the special agents had treated the food stamps in a manner which would make their identification possible after redemption. An analysis of the food stamps recovered from these transactions indicated that of the $10,000 in food stamps purchased by Ghanem on April 19, 1979, approximately $2,000 were redeemed through Turk Street Market, which was owned by Shuman, and $2,600 were redeemed through Reno's Liquor. Of the $24,000 in food stamps purchased by Ghanem on April 23, 1979, approximately $7,000 were redeemed at Super Save Market, which was owned by co-defendants Arikat and Erakat, and $15,000 were redeemed through several Arab-owned stores in New York. Of the $10,000 in food stamps purchased by Abushi on September 14, 1979, approximately $3,500 were redeemed at Super Save Market and $3,100 were redeemed at Haight Street Liquor, a store owned by co-defendant Lufti Abbushi.

On the morning of January 31, 1980, Abushi was brought to an apartment in San Francisco by Kern, an undercover officer who had previously sold him food stamps, to negotiate the purchase of $100,000 worth of food stamps from a third party. After Abushi offered to pay $30,000, co-defendant Arikat arrived at the apartment with a second agent. Arikat had also been told that there was a third party who wished to sell $100,000 in food stamps. Neither Arikat nor Abushi had been advised of the other's existence or of any other potential purchasers of the food stamps. After Arikat arrived at the apartment, Kern stated that he was looking for the best price. Kern testified that after Abushi and Arikat spoke in Arabic, Arikat stated that they would buy the stamps together for $30,000. Immediately after Arikat made that statement, Ghanem arrived with Cotton. Ghanem had also been informed that he was to meet and negotiate with a person interested in selling $100,000 worth of food stamps. He, too, was made to believe that he would be the sole buyer of the food stamps. After Ghanem arrived at the apartment and introductions were made, the agent who had accompanied Arikat pretended to be upset over the fact that there were other buyers involved. Kern again stated that he was looking for the best price. At that time, Ghanem stated that "it's okay, we are cousins." After Abushi, Arikat, and Ghanem had a discussion in Arabic, the three agreed to purchase the food stamps jointly for $30,000 in cash. The three left the meeting with the understanding that they would return with the money in the afternoon. Later, Ghanem and Abushi returned with only $23,000. Ghanem stated that "the other party couldn't get his money together and they had a hard time going store-to- store to raise the money." After Ghanem and Abushi paid the $23,000, they were arrested.

II

Awad, Ghanem, and Shuman contend that the evidence was insufficient to establish that they participated in the single conspiracy charged in the indictment. When reviewing the sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). Conspiracy is established when there is an agreement between two or more persons to engage in criminal activity, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense. United States v. Friedman, 593 F.2d 109, 115 (9th Cir. 1979).

Awad, Ghanem, and Shuman essentially argue that the government did not prove that each of them worked together to effectuate the charged criminal enterprise. But the government is not required to show direct contact or explicit agreement among them. "For the convictions to stand, the government must produce enough evidence to show that each defendant knew or had reason to know the scope of the (criminal enterprise), and had reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture." United States v. Perry, 550 F.2d 524, 528-29 (9th Cir.) (emphasis in original), cert. denied, 434 U.S. 827, 98 S.Ct. 104, 54 L.Ed.2d 85 (1977). An unlawful conspiracy may be proven by circumstantial evidence; no formal agreement is necessary. United States v. Friedman, supra, 593 F.2d at 115; United States v. Camacho, 528 F.2d 464, 469 (9th Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). An agreement constituting a conspiracy may be inferred from the acts of the parties. Id.; United States v. Schroeder, 433 F.2d 846, 849 n.3 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971). Once the existence of a conspiracy is established, "evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy." United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original).

Viewing the evidence in the light most favorable to the government, we hold that the jury could rationally have concluded beyond a reasonable doubt that there existed one conspiracy as charged in the indictment, and that the appellants were members of it. Awad and Shuman argue that there was no evidence that they were aware of what Ghanem would do with the stamps that he purchased, or that they had any interest in his success in purchasing and disposing of the stamps. They also contend there was no evidence that they were connected with Ghanem, outside of the fact that they were present when he purchased stamps from Lee and Cotton on April 19, 1979. As to this episode, they state that their mere presence, without more, is insufficient to show the necessary conspiratorial design. Ghanem joins Awad and Shuman in arguing that the record is devoid of evidence from which it could be inferred that they individually entered into a conspiracy with any...