U.S. v. Sdoulam, 03-3946.

• Decision Date: 02 March 2005
• Docket Number: No. 03-3946.,03-3946.
• Citation: 398 F.3d 981
• Parties: UNITED STATES of America, Appellee, v. Rady I. SDOULAM, also known as Rady I. Sduolam, also known as Roddy Ibrahim, also known as Rady A. Sdoulam, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

398 F.3d 981

UNITED STATES of America, Appellee, v. Rady I. SDOULAM, also known as Rady I. Sduolam, also known as Roddy Ibrahim, also known as Rady A. Sdoulam, Appellant.

No. 03-3946.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2004.

Filed: March 2, 2005.

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Counsel who presented argument on behalf of the appellant was James R. Wyrsch of Kansas City, MO. J. Justin Johnston of Kansas City appeared on the brief.

Counsel who presented argument on behalf of the appellee was Charles E. Ambrose, Jr., AUSA, of Kansas City, MO.

Before BYE, BOWMAN, and SMITH, Circuit Judges.

BOWMAN, Circuit Judge.

Rady I. Sdoulam was charged with conspiracy to distribute pseudoephedrine, then having reason to believe that such chemical would be used to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(c)(2) and 846, and with distribution of pseudoephedrine, then having reason to believe that such chemical would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2). A jury convicted Sdoulam of both of the charged offenses, and the District Court¹ sentenced Sdoulam to 108 months' imprisonment. Sdoulam now appeals both his convictions and his sentence. In challenging his convictions, Sdoulam asserts that the District Court erred in: (1) denying Sdoulam's motion to dismiss and motion for acquittal or a new trial on Count One of the indictment on the ground that Count One allegedly charged Sdoulam with conspiring to commit a negligent act, (2) admitting expert testimony of probability of guilt, (3) denying Sdoulam's motions for acquittal or a new trial on the ground that there is a variance between the conspiracy charged in the indictment and the evidence presented at trial, and (4) instructing the jury on "deliberate ignorance" and "permissive inference." For the reasons discussed below, we affirm Sdoulam's convictions. In challenging his sentence, Sdoulam argues that his Sixth Amendment rights were violated because the sentence was premised on facts found by the District Court, rather than the jury. Given the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), we remand for resentencing.

I.

Sdoulam is a lawful resident alien from Israel who has lived in the United States since 1996. While Sdoulam does not read or write English, he is proficient in spoken English.² In 1997, Sdoulam and a partner, Eiad Mousallet, purchased a Quick Stop convenience store in Kansas City, Kansas. The co-owners shared the operating duties of the store. In addition, Mousallet owned and operated a Quick Stop store in Grandview, Missouri.

The Federal Bureau of Investigation (FBI) began investigating the Quick Stop stores after the FBI received a tip from a former employee of the Kansas store that large quantities of pseudoephedrine products were being sold out of the store. Darlene Babcock reported that she had worked in the Kansas store in 1997 as a cashier and shelfstocker. During her employment, several wholesale venders brought products containing pseudoephedrine to the store. Sdoulam and Mousallet — whichever was on duty — would pay for the products with cash from their pockets, rather than follow the usual procedure of purchasing inventory with funds from the cash register. According to Babcock, Sdoulam and Mousallet generally stored pseudoephedrine products behind the counter rather than on the main sales floor. Babcock introduced Sdoulam and Mousallet to several methamphetamine manufacturers, or "cooks," who then came to the store and purchased large quantities of pseudoephedrine. Trial Tr. at 147. When both Sdoulam and Mousallet were present at the time that a cook came to buy pseudoephedrine, Sdoulam and Mousallet split the money from the sale. Babcock testified at trial that she was addicted to methamphetamine while employed at the Quick Stop and that she had multiple conversations with Sdoulam about methamphetamine during that time.

At the FBI's request, Babcock agreed to become a paid informant and to aid in the investigation of the Quick Stop stores. After making some preliminary telephone contacts with Sdoulam, Babcock went to the Kansas store on November 27, 2001. Babcock told Sdoulam that she knew someone who might like to purchase pseudoephedrine. Sdoulam gave her a box containing pseudoephedrine in sixty-milligram tablets and told her to show it to her friend as a sample of what Sdoulam could provide. On December 1, 2001, Babcock told Sdoulam that her friend was interested in purchasing pseudoephedrine products, but that he wanted to purchase in large quantities because "that stuff he does, you know, the meth, that takes a lot of those boxes to make that up." Trial Tr. at 301. On December 5, 2001, Babcock went to the Kansas store to purchase pseudoephedrine products, but, despite searching through boxes in the back room, Sdoulam was unable to find any pseudoephedrine to sell. On December 10, 2001, however, Sdoulam sold Babcock boxes of various cold medicines containing pseudoephedrine for $500.00 in cash.

In January 2002, undercover agent Jay Oliver began accompanying Babcock to the Kansas store. On January 18, 2002, Sdoulam sold Oliver forty-seven boxes of nasal decongestant containing pseudoephedrine. Oliver asked Sdoulam if, in the future, he could obtain sixty-milligram tablets, rather than thirty-milligram tablets, explaining that it "[t]akes too many [thirty-milligram tablets] to cook." Trial Tr. at 709. On February 8, 2002, Oliver returned to the Kansas store. Sdoulam offered to sell him sixty boxes of pseudoephedrine products from behind the front counter. These boxes contained thirty-milligram tablets, and Oliver again told Sdoulam that he would rather purchase sixty-milligram tablets. Sdoulam went to his minivan in the store parking lot and retrieved a brown bag containing blister packs of sixty-milligram pseudoephedrine tablets, which had been removed from their original retail packaging and had no instructions for consumer use. Oliver paid Sdoulam $500.00 for fifty-two of the blister packs. In negotiating the price, Sdoulam noted that he had to "split [the money] with my buddy." Id. at 694-95; Exh. 60. Oliver's next visit to the Kansas store was on March 1, 2002. Mousallet was on duty. Oliver asked Mousallet if any pseudoephedrine was available. Mousallet told Oliver to return to the store at 3:00 p.m., when Sdoulam was scheduled to work. Oliver returned shortly before 3:00 p.m., and, although Sdoulam had not yet arrived, Mousallet sold him twenty-four boxes of sixty-milligram antihistamine tablets containing pseudoephedrine for $140.00 in cash. Sdoulam arrived as Oliver was leaving, and Oliver observed Mousallet hand Sdoulam the cash. Oliver told the two owners that he would return in a few days to purchase additional pseudoephedrine. Oliver next spoke with Sdoulam on March 19, 2002. Sdoulam told Oliver that he was out of pseudoephedrine but suggested that they meet at a Home Depot parking lot two days later for the exchange of additional pseudoephedrine. On March 21, 2002, Sdoulam met Oliver at the Home Depot parking lot and sold Oliver thirty-six boxes of pseudoephedrine products for $360.00 in cash.

A second investigation related to the sale of pseudoephedrine at the Quick Stop stores was conducted by the Overland Park, Kansas Police Department (OPPD). On December 26, 2001, OPPD police arrested Christopher Queen and Nancy Queen for shoplifting thirteen boxes of cold medicines containing pseudoephedrine from a Target store. Upon searching the Queens' car in the Target parking lot, police found a paper bag containing forty-six additional boxes of various pseudoephedrine products. After being transported to the police department, Mr. Queen called the Kansas Quick Stop in an attempt to obtain bond money. At trial, Mrs. Queen testified that she and her husband had been stealing and providing to Mousallet 100-150 boxes of pseudoephedrine products per week since late fall 2001. The Queens delivered the pseudoephedrine products to Mousallet at a number of locations, including the Kansas and Missouri Quick Stop stores. Upon receipt, Mousallet would place the pseudoephedrine products either in the back rooms of the stores, behind the front counters, or in his car.

FBI agents arrested Sdoulam and Mousallet on April 23, 2002. Mousallet's car was searched and five boxes of pseudoephedrine products were found in a paper bag in the trunk. Sdoulam's minivan was searched and eighty-two blister packs of pseudoephedrine products, removed from their retail packaging, were found in a paper bag in the van.

Sdoulam was brought to trial on May 12, 2003. At the close of the evidence, the jury convicted Sdoulam of distributing and conspiring (with Mousallet, Mr. Queen, and Mrs. Queen) to possess and distribute pseudoephedrine, while having reason to believe the pseudoephedrine would be used to manufacture methamphetamine.³ At the sentencing hearing, the District Court found that the amount of pseudoephedrine involved in the offenses was at least 300 grams but less than 1 kilogram, resulting in a base offense level of 34 under the Federal Sentencing Guidelines. The District Court then enhanced Sdoulam's base offense level by two points because the District Court determined that Sdoulam obstructed justice by perjuring himself while testifying under oath during the trial. Pursuant to the Guidelines, the District Court sentenced Sdoulam to 108 months in prison.⁴

II.

Sdoulam first argues on appeal that his motion to dismiss Count One of the indictment should have been granted because Count One charges him with "conspir[ing] to commit a negligent act, which is a legal impossibility." Appellant Brief at 41. We review the District Court's decision on the sufficiency of the indictment de novo. See United States v. Ferro, 252 F.3d 964, 965-66 (8th Cir.2001), cert. denied, ...