U.S. v. Shukri

• Decision Date: 15 March 2000
• Docket Number: No. 99-2473,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,99-2473
• Citation: 207 F.3d 412
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA,, v. Wahid SHUKRI,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 412

207 F.3d 412 (7th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. Wahid SHUKRI, DEFENDANT-APPELLANT.

No. 99-2473

U.S. Court of Appeals, Seventh Circuit

Argued January 4, 2000

Decided March 15, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 14--David H. Coar, Judge. [Copyrighted Material Omitted] Joel R. Levin (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Linda M. Stojkovich (argued), Seiden & Associates, Chicago, IL, for Defendant-Appellant.

Before Cudahy, Kanne and Diane P. Wood, Circuit Judges.

Kanne, Circuit Judge.

Wahid Shukri was arrested and convicted for his participation in a string of cartage thefts. He now presents two issues on appeal. First, he argues that the district court wrongly denied his motion in limine to exclude inculpatory hearsay evidence under Rule 804 (b)(3) of the Federal Rules of Evidence. Second, he argues that his trial counsel was so incompetent that he was denied the right to effective assistance of counsel as guaranteed by the Sixth Amendment. The district court properly admitted the inculpatory hearsay statements despite Shukri's motion in limine, and Shukri's counsel was not constitutionally defective. We affirm Shukri's conviction.

I. History

During the winter of 1997-98, the FBI tracked a string of merchandise thefts around the Chicago suburbs, including the theft of a trailer load of Black and Decker appliances from a lot in Alsip, Illinois, on January 5, 1998. Luckily for law enforcement, the trailer was equipped with a tracking device, and the FBI traced the device to nearby Orland Park, Illinois. The tracking device led the FBI to a neighborhood filled with storage warehouses, so the FBI spent several days canvassing the area in search of the trailer. The FBI checked every warehouse except one guarded by a particularly recalcitrant custodian who refused to permit them entry. Having found nothing inside the other warehouses in the vicinity, the FBI scouted the perimeter of the unsearched warehouse awaiting the arrival of the thieves, who the FBI predicted would return to reclaim their loot. Shortly thereafter, on January 7, 1998, Wahid Shukri and his associates Jihad Kartoum and Abed Burkan appeared on the scene.

When the FBI spotted them, Shukri and his friends were feverishly loading a rental truck with Black and Decker appliances stored in the warehouse. Upon further investigation, the FBI discovered that the threesome possessed 1,900 cartons of stolen merchandise, worth more than $100,000, comprising goods taken in four separate thefts during the previous two months. Plastic shrink wrapping and product labels were strewn all about the warehouse, and Shukri had $2,800 cash in his wallet. FBI agents arrested Shukri, Kartoum and Burkan for possession of stolen merchandise.

During interrogation, Shukri waived his Miranda rights and immediately pointed the finger at Kartoum and Burkan. He insisted that his complicity was limited to assisting them move the merchandise from the warehouse to their truck. Kartoum and Burkan, he claimed, arrived earlier that day at his store in Chicago and abruptly asked him for help moving some "stuff." Eager to assist, Shukri left his store and accompanied them to several storage facilities, including one at which Shukri proffered his driver's license to rent a space under his name. Shukri admitted that he had a "bad feeling" and knew that the "stuff" was stolen merchandise because Kartoum told him that the police were interested in inspecting the warehouse and they had to hide the goods immediately.

Shukri and Kartoum were released on bond on January 13, 1998, and Burkan was released on bond on April 9, 1998. During this pretrial release, Kartoum and Burkan wasted little time returning to cartage theft, now without Shukri's participation, and stole three new loads of merchandise. On May 7, 1998, the FBI arrested Kartoum and Burkan again, along with Naser Al-Qaisi, Kartoum's brother-in-law. Although Shukri was uninvolved, Al-Qaisi made several post-arrest statements to the FBI probative of Shukri's involvement in the thefts leading up to his January 7 arrest.

First, Al-Qaisi said that Kartoum confided to him that Kartoum and Burkan had been stealing goods and storing them in the Orland Park warehouse, and that Shukri had purchased stolen merchandise from Kartoum, including paper products seized by the FBI on January 7, 1998. Kartoum admitted that he, Burkan and Shukri were trying to remove the stolen goods from the Orland Park warehouse and avoid police discovery when the trio was arrested. Second, Al-Qaisi testified that he had listened to Kartoum and Burkan discuss whether they should reimburse Shukri for the stolen goods that Shukri had bought from them but were seized by the FBI on January 7.

On May 28, 1998, a federal grand jury indicted Shukri, Kartoum and Burkan on three counts of receipt of stolen property in violation of 18 U.S.C. sec. 371, and one count of conspiracy to receive and possess stolen property in violation of 18 U.S.C. sec. 659. On October 14, 1998, the grand jury returned a superseding indictment adding three counts of receipt of stolen property against Burkan and Kartoum relating to their arrest on May 7, 1998. Kartoum fled the country sometime in October 1998, and Burkan pleaded guilty to conspiracy on December 3, 1998.

Meanwhile, Shukri waived his right to a jury trial, pleaded not guilty to the charges against him and proceeded to trial on January 27, 1999. Since Kartoum had fled the country and was unavailable to testify at trial, the government moved in limine to admit Al-Qaisi's hearsay testimony regarding Kartoum's statements under Rule 804(b)(3) of the Federal Rules of Evidence. Shukri responded with his own motion in limine to bar admission of Al-Qaisi's testimony. Shukri's counsel admitted that Kartoum's remarks to Al-Qaisi were statements against Kartoum's penal interest, but contended that the statements lacked "corroborating circumstances" and thus did not qualify for the hearsay exception under Rule 804(b)(3). The district court denied Shukri's motion in limine and admitted Al-Qaisi's testimony at trial.

During Shukri's bench trial, Shukri's counsel did not object when the government asked Shukri several times on cross-examination if Shukri had asked Kartoum why they had to move the merchandise posthaste on January 7. After Shukri testified that the $2,800 cash in his wallet at the time of his arrest was unrelated to the stolen merchandise, the government asked whether Shukri had $2,800 in his pocket at that moment. Shukri's counsel again did not object. On February 1, 1999, the district court convicted Shukri of conspiracy and three counts of possession of stolen property, and sentenced him to five months imprisonment and three years supervised release. Shukri now appeals.

II. Analysis

Shukri presents two claims on appeal: (1) the district court erred by denying his motion in limine to bar Al-Qaisi's testimony; (2) he was denied his right to effective assistance of counsel under the Sixth Amendment.

A. Shukri's Motion in Limine and Rule 804(b)(3)

Shukri and the government agree that Kartoum's statements are hearsay statements admitted for the truth of the matter asserted, and hearsay statements are inadmissible as a general rule under Rule 802 of the Federal Rules of Evidence. See Fed. R. Evid. 802. However, Rule 804(b)(3) permits admission of a hearsay statement "which was at the time of its making... so far tended to subject the declarant to civil or criminal liability... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Fed. R. Evid. 804(b)(3). For the Rule 804(b)(3) exception to apply, the proponent of an inculpatory hearsay statement must show that (1) the declarant is unavailable to testify at trial; (2) the statement was against the declarant's penal interest; and (3) corroborating circumstances bolster the statement's trustworthiness. See American Auto. Accessories, Inc. v. Fishman, 175 F.3d 534, 540 (7th Cir. 1999); United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990). We review the district court's decision to admit hearsay testimony under Rule 804(b)(3) for abuse of discretion. See United States v. Amerson, 185 F.3d 676, 681 (7th Cir. 1999).¹

Shukri acknowledged that Kartoum fled the country before trial and was unavailable to testify himself. Furthermore, Shukri admitted in his motion in limine that Kartoum's statements were "most definitely against Kartoum's penal interest." Indeed they were, because Kartoum discussed his intimate knowledge of and involvement in the multiple thefts for which both he and Shukri were arrested. See United States v. York, 933 F.2d 1343, 1361 (7th Cir. 1991) (holding that statements demonstrating inside knowledge of the crime are against penal interest); see also United States v. Barone, 114 F.3d 1284, 1297 (1st Cir. 1997).

Although Shukri's counsel unequivocally waived the argument that Kartoum's statements were not against penal interest, Shukri insists that waiver does not apply to him on appeal because his trial lawyer acted without consulting him and he personally would not have agreed. Shukri cites for support a line of cases which hold that certain personal rights can be waived only with the knowing and personal approval of the defendant himself. See, e.g., United States v. Elkins, 176 F.3d 1016, 1021 (7th Cir. 1999) (waiver of right to plead not guilty); United States v. Robinson, 8 F.3d 418, 421 (7th Cir. 1993) (waiver of jury trial); United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir. 1997) (waiver of right to counsel). Shukri, however, provides no convincing reason that arguments under Rule 804(b)(3) are analogous to, and ought to be included among, the few fundamental rights for which a defendant himself must waive...