U.S. v. Karam
| Decision Date | 21 November 1994 |
| Docket Number | Nos. 93-2603,93-2604 and 93-3297,s. 93-2603 |
| Citation | 37 F.3d 1280 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nafez Anthony KARAM, also known as Tony Karam, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George Antoun HARO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antoine Youssef EL HANI, also known as Tony El Hani, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alan D. Margoles, St. Paul, MN, argued for Karam.
Virginia G. Villa, Minneapolis, MN, argued, for Haro.
Susan G. James, Montgomery, AL, argued, for El Hani.
Jeffrey S. Paulsen, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.
Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.
Antoine Youssef El Hani ("Tony El Hani") was convicted by a jury of aiding and abetting the distribution of heroin in violation of 21 U.S.C Sec. 841(a)(1) and conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846. George Antoun Haro ("Haro") was convicted by a jury of distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1) and conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846. Nafez Anthony Karam ("Tony Karam") pleaded guilty to one count of possession with intent to distribute heroin and to one count of possession with intent to distribute cocaine, both in violation of 21 U.S.C. Sec. 841(a)(1). The appellants appeal from their convictions and sentences. We affirm the judgments of the district court. 1
Viewing the evidence in the light most favorable to the verdicts, a reasonable jury would have been justified in finding the following:
The appellants were members of a heroin distribution ring in the Minneapolis-St. Paul ("Twin Cities"), Minnesota, area. Tony El Hani, the chief operator of the ring, obtained large quantities of heroin to be distributed in the Twin Cities area. Raffoul El Hani, Tony El Hani's brother, was in charge of the day-to-day operations of the heroin ring until he fled the country shortly before he was indicted. Raffoul El Hani set up a local network of distributors who stored the heroin at stash houses and later delivered it to regular El Hani customers. The El Hanis paid the distributors a commission of $100-300 for each seven-gram ( 1/4 ounce) baggie of heroin they distributed.
One of these distributors was appellant George Haro. Haro confessed to law enforcement officers that Raffoul El Hani enlisted his services as a distributor for the organization. Under his arrangement with the El Hanis, Haro would sell heroin packages to El Hani customers and deliver the money to the El Hanis, who in turn paid him a $100 commission for each seven-gram package he sold. His profits as a six-month distributor for the El Hanis totaled approximately $14,000. At the time of his arrest, Haro possessed $1,400 in cash.
Haro was introduced to Mary Gaona, who was already a regular El Hani heroin customer. Gaona subsequently became a frequent purchaser from Haro. Gaona in turn enlisted the assistance of various "helpers" who distributed the heroin to local drug users. These "helpers" included Jason Johnson and Paul Bender.
Gaona implicated Tony El Hani as the key player in the distribution ring. After she was arrested, Gaona informed police that she acquired heroin on a daily basis from El Hani distributors, including Haro. Gaona told authorities that she originally met Tony El Hani at a party and shortly thereafter began purchasing cocaine from him. Tony El Hani also introduced her to another source named "Jerry," with whom she made other drug acquisitions.
Tony Karam was also a distributor for the El Hani organization. Karam's customers included Gaona. Karam's criminal activities were uncovered when Paul Bender was arrested for selling heroin to a federal agent in a controlled buy. Bender cooperated with law enforcement officers and told them that he was distributing the heroin for Gaona and that one of her sources was a Lebanese male named "Tony." Bender said he sometimes met "Tony" at the Sun Ray Shopping Center to pick up heroin for delivery to Gaona. Officers arrested Karam after a controlled buy with Bender. Karam told authorities he was recruited by Raffoul El Hani to work for the El Hani organization as a distributor. Evidence was also introduced at trial that on one occasion Karam acquired heroin from Raffoul El Hani and was told to make the check payable to Tony El Hani.
In addition to procuring heroin for local distribution, Tony El Hani supervised the storage of heroin at various "safe houses." Among these "safe houses" he used were his own residence and a cabin in his girlfriend's name. When agents searched both premises, they discovered various items of drug dealing paraphernalia containing traces of heroin.
Tony El Hani conducted several heroin transactions himself. He sold heroin to Joseph Lopez on several occasions and also to a relative named Rick George. He made payments in heroin (instead of cash) to Neil Rodrique for construction work. Tony El Hani became intensely involved in the day-to-day operations of the network after Raffoul El Hani left the country for Lebanon in 1992. When Tony El Hani was arrested, he possessed approximately $3,000 in cash.
On March 3, 1993, the government filed a seven-count superseding indictment in the District of Minnesota against Tony El Hani, Raffoul El Hani, Tony Karam, George Haro Mary Gaona, and Jason Johnson. Tony El Hani was charged with aiding and abetting the distribution of heroin and conspiracy to distribute heroin. Karam was charged with possession with intent to distribute heroin, possession with intent to distribute cocaine and conspiracy to distribute heroin. The remaining defendants were charged with distribution of heroin along with conspiracy to distribute heroin.
Karam pleaded guilty to the two possession with intent to distribute charges. He was sentenced to 72 months of imprisonment after the district court granted the government's combined U.S.S.G. Sec. 5K1.1 and Title 18 U.S.C. Sec. 3553(e) motion for a downward departure. Tony El Hani and Haro went to trial and were convicted by the jury. Haro was found guilty of distribution of heroin and conspiracy to distribute heroin and was sentenced to two concurrent terms of 78 months. Tony El Hani was convicted of aiding and abetting the distribution of heroin and conspiracy to distribute heroin and sentenced to 240 months. All three appeal.
Karam challenges only his sentence. In a plea agreement, Karam and the government agreed that Karam's base-offense level was 26, that he was entitled to a three-level reduction for acceptance of responsibility, that the government would move for a downward departure below the ten-year statutory mandatory minimum 2 and recommend a sentence of 72 months of imprisonment, and that the remaining conspiracy charge would be dismissed.
Paragraphs 40 and 41 of the presentence report ("PSR") indicated that Karam should be held responsible for an additional 280 grams of heroin that he distributed during the conspiracy which increased the base-offense level two levels to 28. With the three level reduction for acceptance of responsibility, an adjusted offense level of 25 was proposed by the presentence investigator. The district court found the adjusted offense level to be 25 and Karam's criminal history category to be III. The district court observed that the identified guideline range was 70-87 months, but that there was an overriding 120-month statutory minimum. The court then granted the government's substantial assistance motion, departed below the statutory minimum, and imposed a sentence of 72 months, which is the sentence the parties agreed would be recommended by the government.
Karam argues that the district court erred in determining his sentence by considering drug quantities in the dismissed count of the indictment. He claims that absent the erroneously considered quantity of drugs, his adjusted offense level would be level 23 (instead of level 25) with a range of 57-71 months. However, the defendant was indisputably subject to the statutory mandatory minimum of ten years contained in 21 U.S.C. Sec. 841(b)(1)(B). That statute trumped any guideline determination based on quantity. Karam received a substantial downward departure below the otherwise applicable statutory mandatory minimum sentence. The extent of such a departure is unreviewable on appeal. See United States v. Albers, 961 F.2d 710, 712 (8th Cir.1992).
Karam's argument suffers from an even more fundamental defect. He made no objection to the presentence report's counting of the additional 280 grams of heroin. When asked by the district judge at the sentencing hearing, "Is there anything else you would like to say at all about that [PSI] report or anything else you would like to say at all about what is going to happen here this morning, either on behalf of your client or otherwise about the sentencing guidelines, whatever?", Karam's counsel replied, (Karam Sentencing Tr. at 2) (emphasis added). When the court made its findings of fact it stated: "There being no objections to the factual statements contained in the presentence investigation report, the court does adopt those statements as its findings of fact." (Id. at 8). In the probation officer's addendum to the presentence report dated May 25, 1993, he reported to the court in advance of the sentencing hearing that "In a telephone conversation on May 24, 1993, counsel for the defendant indicated that he had no objections or proposed amendments to the presentence investigation report." Having failed to object...
To continue reading
Request your trial
-
US v. Schultz
...46 F.3d 730, 734 (8th Cir.1995) (findings of fact with respect to denial of reduction reviewed for clear error); United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994) (same), cert. denied sub nom. El Hani v. United States, ___ U.S. ___, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995); United St......
-
US v. Finn
...agreement on the defendant's guilt with respect to a particular offense." United States v. Street, supra, quoting United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). Here, the Defendants argue that each of the chall......
-
U.S. v. Yielding
...closely tracks limiting instructions that we have approved for an identical purpose, see Nattier, 127 F.3d at 658; United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994), and it was sufficient to resolve any potential duplicity concerns by requiring the jury to agree unanimously on a par......
-
US v. Prentice
...of a nonunanimous jury verdict inherent in a duplicitous count may be cured by a limiting instruction."), citing United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995); see also, United States v. Pierce, 479 F.3d 546, ......