U.S. v. Sultan

• Decision Date: 10 June 1997
• Docket Number: No. 96-20483,96-20483
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohammed SULTAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 321

115 F.3d 321

43 U.S.P.Q.2d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Mohammed SULTAN, Defendant-Appellant.

No. 96-20483.

United States Court of Appeals,

Fifth Circuit.

June 10, 1997.

Paula Camille Offenhauser, Assistant U.S. Attorney, David R. Millard, III, Houston, TX, for Plaintiff-Appellee.

Sandra L. Morehead, Joel M. Androphy, Berg & Androphy, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DUHE, BENAVIDES and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Mohammed Sultan ("Sultan") appeals his conviction on counterfeit trafficking charges under the Trademark Counterfeiting Act of 1984, codified at 18 U.S.C. § 2320 (" § 2320"). His main argument is that the evidence was insufficient to sustain his conviction. In addition, he asserts that the district court erred in computing his sentence, failing to suppress statements he made while in "constructive" custody, and failing to exclude expert witnesses from the courtroom during live testimony. For the following reasons, we reverse Sultan's conviction, vacate his sentence, and order his immediate release from custody.

BACKGROUND

Sultan owned an auto parts surplus warehouse in Houston, Texas. He started the business in 1988, and named it Multiple Auto Parts Industries ("MAPI"). Sultan was an authorized General Motors ("GM") warehouse distributor ("WD") who bought parts from GM and other suppliers, then resold those parts overseas to Saudi Arabian customers. Sultan moved into a warehouse at 6546A Petropark ("Petropark") in early 1992. Sultan shared warehouse space with Garbis Jerjerian ("Jerjerian"), another auto parts dealer, at the Petropark location. ¹ Jerjerian operated Sarine Corporation ("Sarine") from that same warehouse. The businesses were kept separate and merely run out of the In April 1993, Sultan moved out of the Petropark warehouse into another warehouse on Highway Six ("Highway Six") in Houston. In late April of 1994, Sultan was notified that an alarm had gone off at the Petropark warehouse. Although he no longer occupied that space, he was still listed as a person to contact in the event the system went off. When Sultan arrived at Jerjerian's Petropark warehouse, he found customs Agents in the process of executing a warrant. The agents discovered approximately one million dollars worth of counterfeit auto parts and thousands of documents evidencing counterfeiting activity in the warehouse. They also found a back room in the warehouse where evidence of counterfeiting activity was present. The evidence showed that counterfeit GM markings were being applied to auto parts, and then placed in counterfeit GM boxes. Sultan was not permitted to enter the warehouse, but he willingly spoke with agents at the scene and answered their questions. Sultan claims that at one point, he thought the agents had finished asking him questions, but that he was stopped and told to exit his car when he tried to leave. He was never read his Miranda rights.

same building, although Sultan bought a large amount of merchandise from Jerjerian.

In May 1994, suspecting that Sultan was counterfeiting auto parts, GM conducted an audit of MAPI. The contract between all WDs and GM entitled GM to conduct an audit of the WD's business at any time. The GM investigators confiscated several parts and boxes to examine whether they were counterfeit or not. None of Sultan's parts, however, were counterfeit. In September 1994, Customs Agents executed a search warrant at Sultan's warehouse on Highway Six. Sultan called his attorney, but his attorney was unable to be present at the search. The attorney told Sultan not to answer any questions, and told the agents not to ask his client any questions. The agents questioned Sultan anyway, and he answered those questions. Consistent with the GM audit, the agents did not find any counterfeit auto parts in Sultan's warehouse.

In the meantime, evidence was uncovered that Jerjerian obtained remanufactured auto parts ² from several companies, including Eveready Carburetor, AES and FASA, and would then alter the parts by changing the serial numbers, repainting them or relabeling them to look like new GM parts. He would then repackage them in counterfeit GM packaging and boxes ³ and resell the parts as genuine GM parts.

Sultan and Jerjerian were indicted for violating 18 U.S.C. § 2320(a), which prohibits trafficking in counterfeit goods. Jerjerian fled the country before trial and was never tried. Sultan was charged with six counts of trafficking in counterfeit goods for several shipments of auto parts he made to Saudi Arabia between April 1993 and April 1994, and one count of aiding and abetting Jerjerian with marketing counterfeit goods. Sultan was convicted on all counts. Sultan was sentenced to 30 months' imprisonment per count, with the sentences to run concurrently. He was also ordered to pay restitution, a special assessment, and the costs of his imprisonment and supervised release. Sultan appeals from that judgment.

STANDARD OF REVIEW

We review a challenge to the sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We affirm if a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Id. "If a reasonable jury would doubt whether the evidence proves an essential element, [this court] must reverse." U.S. v. Onick, 889 F.2d 1425, 1428 (5th Cir.1989). All credibility determinations and reasonable inferences are to be resolved in favor of the jury's verdict. U.S. v. Nguyen, 28 F.3d 477, 480

(5th Cir.1994). Thus, we do not concern ourselves with the correctness of the jury verdict; rather, we must determine whether the finding of guilt is reasonable under all the circumstances. Jackson, 443 U.S. at 318-319, 99 S.Ct. at 2788-89.

DISCUSSION

The government bases its case on an inferential chain of events, from the purchase of remanufactured and new non-GM auto parts to the alleged sale of counterfeit GM auto parts to customers in Saudi Arabia. It is undisputed that Sultan was in the business of selling auto parts and that he was engaging in such activities at all times relevant to this appeal. Sultan argues, however, that the government has not proven that the parts he sold were counterfeit or that, if they were, he knew they were counterfeit. We need not address Sultan's first contention because we conclude that, after a thorough review of the record, the government failed to prove beyond a reasonable doubt that Sultan knew he was purchasing and selling counterfeit parts.

At the outset, we note that in a case such as this--based wholly on circumstantial evidence--we cannot indulge unreasonable inferences to bridge gaps in the government's case. Our review is limited to "whether the jury made a rational decision, not whether its verdict was correct on the issue of guilt or innocence." United States v. Dean, 59 F.3d 1479, 1484 (5th Cir.1995). "However, we must reverse a conviction if the evidence construed in favor of the verdict 'gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.' " Id. (citing United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995)).

To prove a violation of 18 U.S.C. § 2320(a), the government must establish that: (1) the defendant trafficked or attempted to traffic in goods or services; (2) such trafficking, or the attempt to traffic, was intentional; (3) the defendant used a counterfeit mark on or in connection with such goods or services; and (4) the defendant knew that the mark so used was counterfeit. The term "traffic" means to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent so to transport, transfer or dispose of. 18 U.S.C. § 2320(d)(2). A "counterfeit mark" is defined as a spurious mark used in connection with trafficking that is identical or indistinguishable from a registered trademark and the use of which is likely to confuse, cause mistake, or deceive. 18 U.S.C. § 2320(d)(1)(A)(i), (ii) and (iii). ⁴

Section 2320(a) has two mental state requirements: "first, that the defendant 'intends' to traffic in goods or services, and second, that he or she 'knows' that the goods or services are counterfeit." United States v. Baker, 807 F.2d 427, 429 (5th Cir.1986) (quoting S.Rep. No. 526, 98 Cong., 2d Sess. 11 (1984), reprinted in 1984 U.S.Code Cong. & Ad.news 3627, 3637). Because the fact of shipment is not in controversy we need only address Sultan's knowledge as it relates to the purchase and subsequent shipment of the parts purchased from Jerjerian.

The government's proof of Sultan's knowledge primarily rests on six points: (1) the jury could have reasonably concluded that Sultan's personality type would have put him on notice of the counterfeiting; (2) Sultan made inconsistent and untruthful statements; (3) Sultan was shown a counterfeit GM bag by Jerjerian; (4) Sultan shared warehouse space with Jerjerian when counterfeiting activity was taking place; thus, he must have seen signs of counterfeiting; (5) Sultan was an experienced WD, who was aware of industry practices regarding the acquisition and pricing of GM parts; and (6) as a WD, Sultan was familiar with GM practices regarding its

packaging. We address each of these theories in turn.

1. Sultan's Personality

The government contends that Sultan's attention to detail and his penchant for thriftiness should have put him on notice that the parts he received, at the prices he paid, were counterfeit. Because of this personality trait, argues the government, the jury could have inferred Sultan knew about the counterfeiting. Rodney Kinghorn, senior administrator of investigations for GM, testified that during his audit of...