United States v. Brika

Decision Date27 July 2005
Docket NumberNo. 02-4329.,No. 04-3982.,02-4329.,04-3982.
Citation416 F.3d 514
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ahmed BRIKA, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Kevin M. Schad, Schad & Cook, Indian Springs, Ohio, for Appellant. Kevin W. Kelley, United States Attorney, Columbus, Ohio, for Appellee.

ON BRIEF:

Kevin W. Kelley, Salvador A. Dominguez, United States Attorneys, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; and CLELAND, District Judge.*

OPINION

BOGGS, Chief Judge.

Defendant-Appellant Ahmed Brika was tried for conspiracy to commit a kidnapping offense and for using a telephone to extort money in exchange for the release of a kidnapped person. The jury found him guilty of the second offense, but was unable to reach a verdict on the first, as to which the judge declared a mistrial. He was then sentenced to twenty years in prison. Brika appeals his conviction and sentence, claiming that: (1) the judge improperly instructed the jury; (2) venue was improper; (3) the judge erred in refusing to admit documentary evidence that Brika offered and in permitting the Government to use documentary evidence to impeach a defense witness on cross-examination; (4) the judge erroneously failed to hold a hearing to decide a factual dispute over the contents of the record; and (5) the judge's use of his own factual findings under the United States Sentencing Guidelines (USSG) as a basis for mandatory enhancement of Brika's sentence was unconstitutional. We affirm the conviction but vacate the sentence and remand for resentencing.

I

Mohammed Bousfiha, the kidnapping victim, came to the United States from his native Morocco in 1988, becoming an American citizen in 1995. He settled in Columbus, Ohio, where he was joined by his four brothers. Within several years of his arrival, Mohammed had started his own business, running first a group of parking lots and later leasing gas stations from BP. Some of his brothers were also involved in his business ventures.

In the late 1990s, Mohammed married Latifa Brika, a Moroccan citizen who is the sister of Defendant Ahmed Brika. The couple separated in 1999 and divorced in 2000. During their marriage, however, Defendant Brika would spend a great deal of time at Mohammed's home and businesses. The Bousfihas testified that while Mohammed was married to Latifa, Brika sometimes lived with the couple for weeks at a time. They also testified that Mohammed gave Brika money and sent him to "BP School," a five-day program run by BP for prospective owners of BP gas stations. Furthermore, according to the Bousfiha brothers, Brika held no job during this period, and he never owned a gas station. However, according to the testimony of Brika's friends and relations, Brika only lived with Mohammed for one week, he received little or no money from the Bousfihas, and he bought the BP station from Mohammed and operated it for approximately one year.

On June 4, 2001, Mohammed, who was visiting Morocco, was kidnapped and held for over a week in a remote location by a group of Moroccan kidnappers. He claims that on the second day of his captivity, Brika, whom he recognized only by voice because he was blindfolded, came to where he was being hidden and threatened him. The same day Brika, who had also been visiting Morocco, left the country and returned to the United States.

Beginning on June 7, 2001 and continuing for the duration of Mohammed's captivity, the Bousfiha brothers received multiple phone calls from both the kidnappers in Morocco and Brika in Milwaukee. The kidnappers and Brika demanded $312,000 for Mohammed's release, representing the sum Brika claims Mohammed owed him. Following the advice of the FBI, the Bousfihas told the kidnappers and Brika that they had raised the money. Brika arranged for one of the Bousfiha brothers to drive to Indiana to deliver the cash. Immediately after the exchange was made, the FBI captured Brika. When the kidnappers did not hear from Brika, they grew anxious. The Bousfihas convinced them that Brika had taken the money and absconded and was not going to pay them. The kidnappers thereupon negotiated a separate ransom of $35,000 for Mohammed and released him on June 13.

A two-count indictment charged Brika with conspiracy to commit a kidnapping offense, in violation of 18 U.S.C. § 1203, and with using a telephone to extort money in exchange for the release of a kidnapped person, in violation of 18 U.S.C. § 875. At trial, the defense portrayed Brika as an opportunist who heard about the kidnapping and took advantage of it to try to get the Bousfihas to pay a debt that he alleged Mohammed owed to him. The strategy was apparently successful, because the jury hung on the conspiracy charge. The jury's inability to arrive at a verdict caused the judge to deliver two Allen charges during the four days of deliberation.

In addition, during jury deliberations, the jury sent the judge numerous questions. Rather than bring the jury back into the courtroom each time, the judge, after consultation with counsel about his instruction and with their permission to use this approach, would go into the jury room with the court reporter and instruct the jury. Counsel never objected to this procedure.

Brika was found guilty on the second count, using a telephone to extort money, and the judge declared a mistrial on the first count, conspiracy to kidnap. In this timely appeal, Brika makes six arguments. He first challenges the district judge's modification of the standard Allen charge, claiming that the modified charge was coercive. Second, he asserts that the judge's instruction of the jury in the jury room violated his right to be present and his right to be represented by counsel during a critical stage of the trial. Third, Brika argues that venue was improper in the Southern District of Ohio because he made all of the extortionate phone calls not only outside that district but even outside Ohio. Fourth, he objects to the judge's decision to disallow, on the grounds of lack of foundation, evidence he offered, yet to allow evidence offered by the prosecution to impeach a defense witness during cross-examination. Next, he contends that the judge erred in not holding an evidentiary hearing to decide a factual dispute about an omission in the record. Last, he objects to the use of a USSG cross-reference and other enhancements not found by the jury to increase his sentence.

II

An Allen charge is a supplementary instruction given to a deadlocked jury to try to move it toward unanimity. Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Brika claims that the judge twice gave improperly and prejudicially modified Allen charges to the jury: once informally when he went into the jury room to speak to the jurors, and a second time when he brought the jury into the courtroom and gave a formal charge. These charges raise slightly different questions, and need to be evaluated under different standards of review, so they will be treated separately, beginning with the formal charge.

Courts usually review the decision to give an Allen charge for abuse of discretion. United States v. Frost, 125 F.3d 346, 373 (6th Cir.1997). However, Brika does not appeal the decision to give the charge, but only the language used. While Brika's attorney did "generally resist[] the delivery of [the formal] Allen Charge," United States v. Giacalone, 588 F.2d 1158, 1167 (6th Cir.1978), he neither made a formal objection to the decision to give the charge, nor did he object to the modifications the judge made to the content of the charge, even after the judge asked for objections. Under this circumstance, we review for plain error. Ibid.; United States v. Clinton, 338 F.3d 483, 487 (6th Cir.2003) (reviewing modifications made to the standard text of the charge for plain error because "there was no objection to the Allen charge at trial"); Fed.R.Crim.P. 52(b). The court will reverse for plain error only if it determines "(1) that an error occurred, (2) that it was plain and (3) so seriously affected the defendant's substantial rights (4) that it called into question the fairness, integrity, or public reputation of the proceedings." Clinton, 338 F.3d at 487. A modified Allen charge is erroneous if, "`in its context and under all the circumstances, [the charge] ... was coercive.'" United States v. Aloi, 9 F.3d 438, 443 (6th Cir.1993) (quoting Williams v. Parke, 741 F.2d 847, 850 (6th Cir.1984) (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965))).

The judge twice called the jury into the courtroom and gave it a formal Allen charge. On the afternoon of the second full day of jury deliberation, the jury sent its second note of the day to the judge indicating lack of unanimity on Count 1, the conspiracy charge. The judge then brought the jury into the courtroom and delivered an Allen charge that exactly followed Sixth Circuit Pattern Jury Instruction § 9.04 (1991 ed.).1 Neither counsel objected to this charge.

The following day, shortly before lunch and in response to another note from the jury indicating that it was "hung" and that certain jurors felt "their conscience will [not] allow them" to change their votes, the judge brought the jury into the courtroom and gave a second formal Allen charge. This time, however, he modified the charge in two ways. First, he added a preamble to the charge as follows:

I am going to emphasize to you this is a modified Allen charge because I am going to break what is set forth by the instructions and emphasize that neither the Court nor any of the parties to this case wish you to reach any kind of compromise verdict. We all would reiterate that you have to make your verdict your verdict and that we don't expect nor would the Court have you trade...

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