U.S. v. Mussaleen

• Decision Date: 13 September 1994
• Docket Number: 1491,Nos. 1485,D,s. 1485
• Citation: 35 F.3d 692
• Parties: UNITED STATES of America, Appellee, v. Mohamad MUSSALEEN, also known as Johnny, and Sean Courtney McKinnon, Defendants-Appellants, Hubert Terence Gill, Defendant. ockets 93-1668, 93-1676.
• Court: U.S. Court of Appeals — Second Circuit

Page 692

35 F.3d 692

UNITED STATES of America, Appellee, v. Mohamad MUSSALEEN, also known as Johnny, and Sean Courtney McKinnon, Defendants-Appellants Hubert Terence Gill, Defendant.

Nos. 1485, 1491, Dockets 93-1668, 93-1676.

United States Court of Appeals Second Circuit.

Argued June 14, 1994.

Decided Sept. 13, 1994.

Douglas T. Burns, Asst. U.S. Atty., E.D.N.Y., Garden City, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., and Susan Corkery, Asst. U.S. Atty., Brooklyn, NY, of counsel), for appellee.

Chris P. Termini, Melville, NY, for defendant-appellant Mohamad Mussaleen.

Roger Bennet Adler, New York City, for defendant-appellant Sean Courtney McKinnon.

Before: McLAUGHLIN, JACOBS, Circuit Judges, and WEINSTEIN ^*, Senior District Judge.

JACOBS, Circuit Judge:

Defendants-appellants Mohamad Mussaleen and Sean Courtney McKinnon were convicted by a jury for participating in a scheme to smuggle a Guyanan citizen into the United States. They appeal from judgments entered on October 7, 1993, in the United States District Court for the Eastern District of New York (Mishler, J.), convicting them of violating 8 U.S.C. Sec. 1324(a)(1)(B), which prohibits moving or transporting a person knowing that the person is unlawfully in the United States, or in reckless disregard of that fact. McKinnon argues that he was deprived of a fair trial because (a) the court denied McKinnon's motion for a mistrial following testimony by the illegal alien that he carried a gun during the crime; (b) the court erroneously admitted testimony that he was the subject of an unrelated outstanding warrant; (c) his pretrial statement should have been excluded because it was the fruit of an unlawful arrest; and (d) his pretrial statement was improperly redacted in a way that distorted his role in the crime. In addition, both McKinnon and Mussaleen argue that (a) the district court erroneously refused to instruct the jury on a lesser-included offense; (b) Sec. 1324(a)(1)(B) is defective because it permits "reckless disregard" to satisfy the mens rea element of the crime; and (c) the district court committed sentencing errors. We affirm the judgments of conviction in all respects.

BACKGROUND

Parbattie Baichu, having failed to secure a visa allowing her to enter the United States from Guyana, began to explore other, illicit means of emigrating. She found a man in Guyana named Brockfoot, who for $10,500 agreed to arrange for her unlawful entry into the United States. Payment for this service was to be made in the United States by Parbattie's sister, Sandra Baichu, a permanent resident alien living in West Hempstead, New York. On May 23, 1992, Mussaleen telephoned Sandra, and told her that Brockfoot had instructed him to collect a $2,000 downpayment prior to Parbattie's arrival. Sandra delivered this downpayment to Mussaleen in the parking lot of a Sizzler restaurant in West Hempstead on June 23. McKinnon was standing nearby when the downpayment was made.

Parbattie arrived at John F. Kennedy Airport on June 30, 1992, and passed through customs using a false passport. McKinnon met her at the airport, and brought her to a car where Mussaleen was waiting. McKinnon then relieved Parbattie of the false passport and drove the group to Mussaleen's home. When Mussaleen called Sandra to collect the $8,500 balance, however, Sandra told him that she did not have the money. For three days, the defendants moved Parbattie from place to place, pressing Sandra to produce the $8,500 in exchange for her sister's release.

The day after Parbattie arrived at the airport, Sandra began to fear for her sister's safety and contacted the police, who installed a listening device on Sandra's phone. The following day, Sandra arranged to go to the parking lot of a Wendy's restaurant on Long Island, and deliver the money in return for her sister's freedom. Parbattie was brought to the appointed spot by defendant Hubert Gill. After Sandra arrived and met Gill, he was placed under arrest. Both Parbattie and an officer conducting surveillance saw McKinnon in the vicinity.

A few days later, on July 5, 1992, Detective Dennis Barry and his partner visited McKinnon's home. Detective Barry told McKinnon that he was investigating a case involving the smuggling of Guyanan citizens into the United States. McKinnon agreed to accompany the detectives to the police station to answer questions about the case. At the police station, after waiving his Miranda rights, McKinnon made a statement regarding his knowledge of the overall smuggling scheme, the smuggling of Parbattie Baichu into the United States, and the efforts to obtain the agreed upon fee from Sandra. He specifically admitted driving Mussaleen to the Sizzler restaurant to pick up the $2,000 downpayment, driving to the airport to meet Parbattie, and driving her to various locations over the course of three days. McKinnon's statements were later reduced to a writing, which he signed. At trial, McKinnon's counsel argued that this conduct is consistent with providing lawful service as a driver for hire.

Mussaleen, McKinnon and Gill were indicted in January 1993 on charges of transporting Parbattie Baichu, "knowing and in reckless disregard of the fact" that she was in the United States illegally. The jury acquitted Gill, but convicted Mussaleen and McKinnon.

Judge Mishler imposed identical sentences of 14 months of imprisonment, three years of supervised release, and a $50 special assessment.

DISCUSSION

Mussaleen and McKinnon raise numerous claims of error. None justifies reversal or resentencing.

A. Improper Testimony

McKinnon argues that he was unfairly prejudiced by two statements made at trial, one by the victim, the other by the police officer who arrested McKinnon.

The district court cautioned Parbattie, at the outset of her testimony (and outside the presence of the jury), to make no reference to McKinnon's possession of a gun during the time he was transporting her. In open court, however, when the prosecutor invited her to expand on what Mussaleen had said during her confinement, Parbattie blurted out the non sequitur, "[McKinnon] was there with the gun." McKinnon moved for a mistrial. The district court denied the motion in light of the overwhelming evidence that the government was expected to produce, as well as the possibility that the testimony might be proper to rebut McKinnon's unfolding theory that he was simply a livery car driver on extended assignment. Although refusing to grant a mistrial, the district court gave the jury a curative instruction, explaining that the defendants were charged only with transporting a known illegal alien, and directed the jury to disregard Parbattie's unresponsive answer.

The second statement that McKinnon claims deprived him of a fair trial was made by Detective Barry. On cross-examination, defense counsel asked him whether he had an arrest warrant relating to the charged crime when he approached McKinnon at his home. Detective Barry replied, "We had a warrant for an unrelated matter." The district court denied defense counsel's motion to strike the answer, as well as the ensuing application for a mistrial. Defense counsel later insisted that the district court give a curative instruction. The court warned that such an instruction would only remind the jury of a warrant that defense counsel wanted forgotten, but gave it anyway.

Given the evidence against McKinnon, neither statement violated his right to a fair trial. Trial errors that do not affect the substantial rights of the defendant are harmless and do not compel the reversal of a criminal conviction. See United States v. Colombo, 909 F.2d 711, 713 (2d Cir.1990); Fed.R.Crim.P. 52(a). An error is harmless if the reviewing court is convinced that the error did not influence the jury's verdict. See id.; United States v. Castano, 999 F.2d 615, 618 (2d Cir.1993). In that determination, "[t]he strength of the government's case against the defendant is probably the most critical factor." Colombo, 909 F.2d at 714.

The evidence of McKinnon's guilt is solid. Parbattie testified that, when McKinnon met her at the airport, he took her forged passport before driving her to Mussaleen's home. She testified that McKinnon drove her from place to place for the next few days, and that he asked her at one point whether she "got through to her sister about the money." Witnesses placed McKinnon on the scene at several critical times in the course of the crime, as when (for example) Mussaleen collected the downpayment from Sandra Baichu, and when Gill attempted to exchange Parbattie for the balance of the fee. McKinnon's own pretrial statement revealed that he was aware of a conspiracy to charge a fee for arranging the illegal entry of Guyanans to the United States, and also corroborated much of the testimony given by other witnesses. Given the strength of this evidence, it is highly unlikely that either Parbattie's reference to a gun or Detective Barry's reference to an unrelated warrant influenced the jury's verdict. In any event, McKinnon's display of a gun to his passenger would have been admissible to rebut McKinnon's theory that she was an ordinary fare.

Moreover, the district court gave appropriate curative instructions following the blurted testimony of Sandra Baichu and Detective Barry. The Supreme Court has emphasized the normal assumption

that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming probability" that the jury will be unable to follow the court's instructions, Richardson v. Marsh, 481 U.S. 200, 208 [107 S.Ct. 1702, 1708, 95 L.Ed.2d 176] (1987), and a strong likelihood that the effect of the evidence would be "devastating" to the defendant, Bruton v. United States, 391 U.S. 123, 136 [88 S.Ct. 1620, 1628, 20 L.Ed.2d 476] (1968).

Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987). Even if the...