United States v. Ayoub, 070317 FED6, 15-1712

Docket Nº:15-1712, 15-1761, 15-2278
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MOHAMED AYOUB, MOHAMED FARAJ, and FOUAD FARAJ, Defendants-Appellants.
Judge Panel:BEFORE: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.
Case Date:July 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MOHAMED AYOUB, MOHAMED FARAJ, and FOUAD FARAJ, Defendants-Appellants.

Nos. 15-1712, 15-1761, 15-2278

United States Court of Appeals, Sixth Circuit

July 3, 2017

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Mohamed Faraj, along with several of his cohorts, operated a marijuana and prescription-drug enterprise in the Dearborn and Warrendale neighborhoods of Detroit, Michigan. Beginning in 2009, the venture spanned five years and involved a rotating cast of players. In 2013, the government indicted eight individuals in connection with the operation on drug conspiracy-related charges and numerous convictions followed. Now before the court are the appeals of three of the conspiracy's key members: Mohamed Faraj-"Mojo" as he was called-was the group's founder and ring leader; Fouad Faraj owned the "safe house" and primary headquarters of the organization; and Mohamed Ayoub served as "street captain" in the conspiracy's later life. All three defendants were convicted under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846 of conspiracy to distribute controlled substances, and Mohammed Faraj was convicted of engaging in a continuing criminal enterprise under 21 U.S.C. § 848 and use of a communication facility in facilitating the commission of a violation of the Controlled Substances Act under 21 U.S.C. § 843(b)(3). They raise various claims on appeal challenging evidentiary rulings, the sufficiency of the evidence to sustain their convictions, and the calculation of their resulting sentences. For the reasons set forth below, we affirm the district court on all counts as to Mohamed Faraj and Mohamed Ayoub. We affirm Fouad Faraj's conviction, but vacate his sentence and remand his case for resentencing.

I.

FACTUAL AND PROCEDURAL BACKGROUND

This drug conspiracy began in 2009 when Mojo enlisted his childhood friend Hafez Hammoud to assist him in selling marijuana and prescription drugs. The pair used Fouad's home on Rutherford Street in Warrendale as the hub of their operations, which worked like this: Mojo received orders from customers on a designated drug phone and directed them to Fouad's house for pick-up. Mojo then alerted Hammoud of incoming buyers, and Hammoud approached the vehicles and completed the sales.

Approximately two months into their endeavors, Mojo and Hammoud decided to professionalize their operations. First, they upgraded to selling "kush, " a more lucrative and potent strain of marijuana. Second, they began packaging the kush in glass vials, rather than plastic baggies, in order to better preserve the kush and enhance its display quality. Originally purchased from a smoke shop down the street, and later ordered in bulk directly from the manufacturer, Thornton Plastics, these glass vials became the signature of their operation. As customers and profits began to grow, Mojo and Hammoud expanded their crew by hiring three 13-to-17-year-old kids from the block-"Moley, " "Peanut, " and "AK"-to be their "drug runners." The operation also needed more space. While Fouad's home on Rutherford was still the group's headquarters, during late 2009 and early 2010 they began utilizing vacant homes on the street for packaging and selling purposes, including a second home owned by Fouad.

Continuing to grow in numbers, the group began to find a routine. Their products included vials of marijuana, "eighths, " which contained larger quantities of the drug sold in baggies, and prescription drugs, such as Vicodin. The marijuana was packaged at night in preparation for the next day's sales. Workers sold continuously, seven days a week, from 9 a.m. until 2 a.m., and utilized tally sheets to track their sales. Hammoud accumulated the drug proceeds from workers and reported to Mojo nightly, who divided the spoils-typically between $3, 000 and $4, 000 per day-keeping the largest cut for himself. Fouad also received a portion of these daily proceeds in exchange for allowing the group to use his home as its headquarters and for the supervisory role he played in the enterprise.

While Fouad's home offered shelter from police detection, Mojo armed his workers with weapons, stashed throughout the block, to protect them from rival drug dealers. Mojo ensured that his enterprise monopolized the neighborhood and ordered workers to verbally or physically assault others who attempted to encroach on their territory or threaten to reveal their operations to police. For example, in May 2010, Mojo ordered Hammoud to assault a local homeless man, Mahmoud Harajli, after it was rumored that Harajli was informing on the organization to police.

In the spring and fall of 2010, after a series of arrests and an increased police presence on Rutherford Street, Mojo and his crew embarked on a series of relocations around Dearborn and Warrendale, utilizing a pub a few blocks away as a front for sales, and later selling out of their cars and occupying vacant homes in the area. They returned to Rutherford for short intervals during this transitory period, although they began using the alleyway behind the street to consummate sales, rather than the front of Fouad's home. Even with this added element of covertness, however, Fouad was uneasy about the conspiracy's continued use of his home as its headquarters, and he demanded a bigger cut of the drug proceeds if the operation was to remain there. Mojo refused, instead moving the group's distribution point to his own apartment on Greenview Avenue in Warrendale.

It was at this point that the group's composition began to change as well. Hammoud took a year hiatus, and when he returned, Mohamed Ayoub had assumed his role of "street captain, " overseeing worker operations and collecting drug proceeds for Mojo. The group returned to Rutherford Street one final time in late 2011, this time using Fouad's second-and vacant- home as the front for its operations. The March 2012 arrest of Hammoud, however, signaled the beginning of the end for Mojo's enterprise. Police had been gathering information on this group over the years, executing search warrants, confiscating marijuana and weapons, and arresting and charging many of the conspirators with possession-related crimes. However, when Hammoud decided to cooperate in late 2012, the police were finally able to build a comprehensive case that culminated in a search of Mojo's and Fouad's homes in August 2013. At Mojo's, the police found plastic baggies, packaged and unpackaged marijuana, and a phone bill linking him to the conspiracy's drug phone. At Fouad's, police recovered $16, 896 in cash and a loaded firearm.

On July 31, 2013, a grand jury indicted Mojo and Fouad on several counts, and a few months later, on November 13, a second grand jury charged Ayoub. Mojo and Fouad were charged with engaging in a continuing criminal enterprise, 21 U.S.C. § 848(a) & (c). All three defendants were charged with conspiracy to distribute controlled substances, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), 846, and with possession of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c). Mojo was also charged with use of a communication facility in facilitating the commission of a violation of the Controlled Substance Act, 21 U.S.C. § 843(b).

In late October through November 2013, Mojo, Fouad, and Ayoub were tried together to a jury. The trial lasted four weeks and involved over 70 witnesses and 300 exhibits. After nine days of deliberations, the jury found all three defendants guilty of conspiring to distribute controlled substances. Mojo and Fouad were also found guilty of operating a criminal enterprise, but Fouad was later acquitted of this charge after the trial judge granted a Rule 29 motion in his favor. Fouad and Ayoub were acquitted of the firearm charge, and the jury was unable to reach a verdict on that charge as to Mojo. Finally, Mojo was convicted for the use of a phone in connection with a violation of the Controlled Substances Act.

II.

EVIDENTIARY CHALLENGES

On appeal, defendants challenge various evidentiary rulings. First, Mojo and Ayoub argue that the district court erred in denying their motion to recall Hammoud, the government's witness, so that they could cross-examine him about a recent domestic violence allegation. Second, Mojo claims that out-of-court statements made by Mahmoud Harajli were improperly admitted as excited utterances and infringed on his rights under the Confrontation Clause of the Sixth Amendment. Third, Fouad alleges that the admission of evidence of his failure to file tax returns constituted improper character evidence. We affirm the decisions of the trial court as to each of defendants' challenges.

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