United States v. Moton
| Decision Date | 02 March 2020 |
| Docket Number | No. 18-40884,18-40884 |
| Citation | 951 F.3d 639 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Mohamed Ebrahim Salim MOTON, also known as Mohamed Moton Salim, also known as Salim Moton, Defendant - Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Seth Christian Gagliardi, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Stephen W. Byrne, Corpus Christi, TX, for Defendant-Appellant.
Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
Convicted of two counts of possession with intent to distribute a synthetic cannabinoid and sentenced to concurrent terms of 186 months in prison followed by 36 months of supervised release, Mohamed Ebrahim Salim Moton contests the sufficiency of the evidence to prove he had the requisite mens rea, the drug quantity used to calculate his base offense level, and a sentencing enhancement for maintaining drug premises. We affirm.
Moton, a native and citizen of India, came to the United States as a tourist in October 2014, but within two years, he was packaging a synthetic cannabinoid for two men he met at his mosque. In 2016, the Houston Police Department received a tip regarding narcotics activity at a storage facility. Observing a man unloading boxes from a blue minivan into a storage unit flagged by the facility’s manager, police followed and stopped him for a traffic violation. Moton was the driver. Identity in hand, police began surveilling Moton. They watched him load boxes from the storage unit into his minivan and drive to a gas station a few miles away, where he deposited a box and two black trash bags into a dumpster. After Moton drove off, police recovered the box and trash bags, which contained materials often used to produce synthetic cannabinoids: baggies, loose leaves, receipts for acetone, a box for a digital scale, a package for a respirator, bottles of Tasty Puff flavoring, and labels advertising the flavor and potency of the synthetic cannabinoid. The bag’s contents tested positive for synthetic cannabinoid.
The police continued to surveil Moton as he regularly visited other storage facilities and a house on Mulholland Drive in southwest Houston (the "House"). Moton was the only person who police saw visiting the House. Moton regularly dropped off trash bags at storage units for pick up by Moton’s co-defendant, Ataru Rahman Malik. Officers saw Moton put black trash bags in the trunk of Malik’s unattended car and immediately leave. They observed Malik return to his car and transfer the bags to a vehicle driven by another of Moton’s co-defendants. Officers conducted a traffic stop of the vehicle, confiscating 800 baggies of synthetic cannabinoids.
Officers arrested Moton at the House. With unfurnished rooms and empty kitchen cabinets, the House was no home. It was a large-scale manufacturing lab: chemical flavoring was stored in a bedroom, containers of acetone were in the garage, and tubs filled with packaged synthetic cannabinoids were in the backroom. Fans blew chemical odors out of the chimney, and a machine was used to seal the packaged drugs. The officers also found approximately 580 pounds of synthetic cannabinoids, as well as Moton’s utility bill for the House.
With the help of an Urdu-speaking interpreter, police advised Moton of his rights and interviewed him. Moton then described the process for delivering synthetic cannabinoids to storage units, explaining that he was paid by cash left for him in the units. On searching the units, including one listed in Moton’s name, police found materials used to produce synthetic cannabinoids.
Moton testified at trial that he mixed artificial flavoring with dry green leaves, estimating that he had packaged between 75,000 and 200,000 bags. While each contained 10 grams of the dried leaves, he denied knowing that the leaves contained synthetic cannabinoids or that any aspect of the business was illegal, saying that his difficulty with English left him unaware that the business was illegal.
At the close of evidence, Moton unsuccessfully moved for a judgment of acquittal. The jury found him guilty of two counts of possession with intent to distribute synthetic cannabinoids and not guilty on the remaining conspiracy charge.
In calculating Moton’s base offense level under the Sentencing Guidelines, the presentence report ("PSR") attributed to him (1) $107,940.00 in drug proceeds discovered in Malik’s safety deposit box and (2) 434,319.50 grams of cannabinoids seized at different locations. The drug proceeds and seized cannabinoid totaled to 2,593,119.50 grams of synthetic cannabinoid. Using an unstated multiplier, the PSR converted this figure to 409,274 kilograms of marijuana, which has a base offense level of 38.1 The PSR then added a two-level enhancement under § 2D1.1(b)(12) of the Guidelines for maintaining premises for the purpose of manufacturing or distributing a controlled substance analogue. With a total offense level of 40 and a criminal history category of I, the advisory Guidelines range of imprisonment was 292 to 365 months, capped by statute at 240 months.2 Varying downward, the district court sentenced Moton to concurrent terms of 186 months of imprisonment and concurrent three-year terms of supervised release. Moton timely appealed.
Moton raises three issues on appeal. He argues that there was insufficient evidence of the requisite mens rea, that the district court miscalculated his base offense level under the Sentencing Guidelines, and that the court erred in applying the sentencing enhancement for maintaining a drug premises.
Moton argues that the Government failed to prove that he had the requisite mens rea. Moton preserved his challenge, and we review the sufficiency of the evidence de novo , "view[ing] all evidence, whether circumstantial or direct, in the light most favorable to the Government with all reasonable inferences to be made in support of the jury’s verdict."3 We are to uphold the jury’s verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."4 "The weight and credibility of the evidence are the sole province of the jury."5
The Controlled Substances Act ("CSA") makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances.6 "The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially similar to those listed on the federal controlled substance schedules and then instructs courts to treat those analogues, if intended for human consumption, as controlled substances listed on schedule I for purposes of federal law."7
The Government must establish that the defendant "knew he was dealing with a controlled substance."8 When the substance is an analogue, "that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity."9 A defendant’s knowledge can be established in one of two ways:
First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance—that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.10
Under the first method, the Government must prove that the defendant knew the drug was some controlled substance. To prove the defendant’s knowledge, the Government need not introduce direct evidence; circumstantial evidence may suffice.11 It is for the jury "to determine whether the circumstantial evidence proves that the defendant knew that the substance was a controlled substance under the CSA or Analogue Act."12 Circumstantial evidence establishing knowledge might include "a defendant’s concealment of his activities, evasive behavior with respect to law enforcement, knowledge that a particular substance produces a ‘high’ similar to that produced by controlled substances, and knowledge that a particular substance is subject to seizure at customs."13 The jury was so instructed, without objection from Moton.
The jury had more than enough circumstantial evidence to convict Moton.14 He worked in a house that police described as "[a] full-blown manufacturing lab for synthetic cannabinoids." He admitted to police that he had operated out of another house, but relocated after a neighbor asked about Moton’s suspicious activities. He left trash bags filled with synthetic drugs in storage units and, on at least one occasion, in the trunk of an unattended vehicle. And to dispose of evidence, he drove three to five miles from a storage facility to a gas station instead of using the storage facility’s own dumpster. We hold that there was sufficient evidence to sustain the jury’s finding that Moton acted with the requisite mens rea.
When, as here, a defendant has preserved a sentencing error, we review the district court’s factual findings for clear error and its application of the Sentencing Guidelines de novo .15 Even if an error is established, it must be disregarded "if it is harmless, i.e., if it does not affect substantial rights."16 On clear error review, the Government has the burden to prove the error is harmless.17
Under the Sentencing Guidelines, a defendant’s base offense level reflects the offense of conviction and other "relevant conduct."18 "Relevant conduct" includes a defendant’s "acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction."19 Although only criminal conduct is relevant, the conduct need not have resulted in a conviction.20 For a drug...
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