U.S. v. Brika

Decision Date23 May 2007
Docket NumberNo. 05-4537.,05-4537.
Citation487 F.3d 450
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ahmed BRIKA, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Kevin W. Kelley, Assistant United States Attorney, Columbus, Ohio, for Appellee.

ON BRIEF:

Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Kevin W. Kelley, Salvador A. Dominguez, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; and DAUGHTREY and GIBBONS, Circuit Judges.

OPINION

BOGGS, Chief Judge.

In Columbus, Ohio, Mohammed Bousfiha provided Ahmed Brika, his brother-in-law, with a livelihood. He funded his job training and sometimes offered him a place to live when times were tough. After Bousfiha's marriage to Brika's sister had ended, Brika organized and executed a plot to kidnap Bousfiha in Morocco and hold him for ransom over an allegedly unpaid debt. More than five people were involved in the plot, from the women who initially orchestrated Bousfiha's abduction to the strong-men who held him in captivity. The plotters held Bousfiha for more than seven days. He was physically injured, although he survived the ordeal.

Brika was indicted and prosecuted in the United States District Court for the Southern District of Ohio for acts committed from Columbus to Morocco. He was convicted of using a telephone to extort money in exchange for the release of a kidnapped person, in violation of 18 U.S.C. § 875. The jury could not reach a verdict on another count—conspiracy to commit hostage-taking, in violation of 18 U.S.C. § 1203—and a mistrial was declared on that count. The district court originally sentenced Brika to 240 months of imprisonment.

In a prior appeal, we affirmed Brika's conviction on the § 875(a) violation but remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Brika, 416 F.3d 514 (6th Cir.2005). On remand, the district court sentenced Brika to a lesser term, 156 months of imprisonment. Brika now appeals his lower sentence. We affirm.

I

The following facts primarily are derived from our previous opinion affirming Brika's conviction. Mohammed Bousfiha, the kidnapping victim, came to the United States from his native Morocco in 1988, becoming an American citizen in 1995. He settled in Columbus, Ohio, where he was joined by his four brothers. Within several years of his arrival, Bousfiha had started his own business, running first a group of parking lots and later leasing gas stations from BP. Some of his brothers were also involved in his business ventures.

In the late 1990s, Bousfiha married Brika's sister. The couple separated in 1999 and divorced in 2000. During their marriage, however, Brika spent a great deal of time at Bousfiha's home and businesses. Brika sometimes lived with the couple for weeks at a time. Bousfiha also gave Brika money and sent him to "BP School," a five-day program run by BP for prospective owners of BP gas stations.

On June 4, 2001, Bousfiha, who was visiting Morocco, was abducted by three women and held for over a week in a remote location by a group of Moroccan kidnappers. He claims that on the second day of his captivity, Brika, whom he recognized only by voice because he was blindfolded, came to where he was being hidden and threatened him. That same day, Brika, who also had been visiting Morocco, left that country. He arrived in New York on June 6, 2001, according to his Moroccan passport, which was stamped on that date by American immigration officials. He then traveled from New York to Milwaukee, by way of Cincinnati.

Beginning on June 7, 2001 and for the duration of Bousfiha's captivity, Bousfiha's brothers received multiple phone calls from both the kidnappers in Morocco and from Brika in Milwaukee. The kidnappers and Brika demanded $ 312,000 for Bousfiha's release, representing the sum Brika claims Bousfiha owed him. Following the advice of the FBI, the Bousfihas told the kidnappers and Brika that they had raised the money. Brika arranged for one of the Bousfiha brothers to drive to Indiana to deliver the cash. Immediately after the exchange was made, the FBI captured Brika. When the kidnappers did not hear from Brika, they grew anxious. The Bousfihas convinced them that Brika had taken the money and absconded and was not going to pay them. The kidnappers thereupon negotiated a separate ransom of $35,000 and released Bousfiha on June 13.

A two-count indictment charged Brika with conspiracy to commit hostage-taking, in violation of 18 U.S.C. § 1203,1 and with using a telephone to extort money in exchange for the release of a kidnapped person, in violation of 18 U.S.C. § 875(a). At trial, the defense portrayed Brika as an opportunist who heard about the kidnapping and took advantage of it to try to get the Bousfihas to pay a debt that he alleged Mohammed Bousfiha owed to him. The strategy may have been at least partly successful, because the jury hung on the conspiracy charge. Brika was found guilty on the second count, using a telephone to extort money, and the judge declared a mistrial on the first count.

In Brika's first appeal, we affirmed his convictions, rejecting various alleged grounds of trial-court error. Brika, 416 F.3d at 517. However, we remanded the case for resentencing in light of Booker. Id. at 531. On remand, the district court relied on the same enhancements to Brika's sentence that it relied upon when it originally sentenced Brika. Those enhancements gave Brika a guidelines range of 262 to 327 months.2 After considering that range and mitigating evidence Brika presented, the district court sentenced Brika to 156 months of imprisonment.

II

We first address Brika's non-constitutional challenges to various guidelines enhancements. Brika argues that the district court erred by finding him criminally responsible for a kidnapping offense; that the district court ignored our court's prior mandate; and that the district court erred by relying on unreliable evidence at sentencing. Each of these claims lacks merit.

A

Brika first argues that the district court erred in determining that he was criminally responsible for a kidnapping offense, such that the higher base offense level for kidnapping would apply by cross-reference. Because a determination of criminal responsibility is a mixed question of law and fact, we review it de novo. See United States v. Whited, 473 F.3d 296 (6th Cir.2007). Facts employed by the district court to decide criminal responsibility are reviewed for clear error. United States v. Gates, 461 F.3d 703, 709 (6th Cir.2006).

Brika was convicted for using a telephone to extort money in exchange for the release of a kidnapped person, in violation of 18 U.S.C. § 875(a). USSG § 2A4.2 applies to that offense and carries a base offense level of 23. That provision also contains the following cross-reference provision: "If the defendant was a participant in the kidnapping offense, apply § 2A4.1 (Kidnapping, Abduction, Unlawful Restraint)." Section 2A4.2's application note defines a "participant" as a person "criminally responsible" for the kidnapping offense, even though that person need not have been convicted of kidnapping. To determine criminal responsibility, we apply the federal kidnapping statute, 18 U.S.C. § 1201, which provides, inter alia:

§ 1201. Kidnapping

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when— (1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;

. . . .

shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

Applying that statute, the facts in this record show, by a preponderance of the evidence, see Gates, 461 F.3d at 708, that Brika was criminally responsible for the kidnapping. His conduct satisfies both actus reus elements of the offense. He (1) seized, kidnapped, abducted, or carried away Bousfiha and (2) held him for ransom or reward. As noted by the district court on resentencing, there is ample evidence in the record that Brika paid the three women who abducted Bousfiha; that he otherwise led the group that secured Bousfiha's detention; that he visited and confronted Bousfiha in person in Morocco while Bousfiha was being detained; that Bousfiha heard Brika's voice while being held; that Brika sought ransom from the victim's family by telephone; and that Brika otherwise exercised authority over those who kidnapped and held the victim. The district court found those facts, and they are not clearly erroneous. They show by a preponderance of the evidence that Brika's conduct satisfies the two actus reus elements of § 1201.

Both of the statute's Commerce-Clause-based jurisdictional elements, see United States v. Lopez, 514 U.S. 549, 562-63, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), are also satisfied here, although only one is required. Bousfiha was transported in foreign commerce when he was kidnapped and detained in Morocco. Brika traveled in foreign commerce when he flew to Morocco in furtherance of the offense and then reentered the United States. He traveled in interstate commerce when he flew from New York to Cincinnati to Milwaukee, and then again when he drove to Indiana. Brika also, as a necessary condition of his § 875(a) conviction, used a means or instrumentality of interstate or foreign commerce (a telephone) in committing...

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