United States v. Muslim

• Decision Date: 25 November 2019
• Docket Number: No. 16-4304,16-4304
• Citation: 944 F.3d 154
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Shahid Hassan MUSLIM, a/k/a Sharp, a/k/a Sean Williams, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

944 F.3d 154

UNITED STATES of America, Plaintiff - Appellee,

v.Shahid Hassan MUSLIM, a/k/a Sharp, a/k/a Sean Williams, Defendant - Appellant.

No. 16-4304

United States Court of Appeals, Fourth Circuit.

Argued: September 20, 2019

Decided: November 25, 2019

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge Richardson joined.

WYNN, Circuit Judge:

Defendant Shahid Hassan Muslim appeals decisions of the U.S. District Court of Western North Carolina related to his trial, conviction, and sentence. Defendant raises eight grounds on appeal: (1) the district court erred in denying his motion to continue trial; (2) the court erred in conducting a morning session of trial in Defendant’s absence; (3) the court erred in admitting expert testimony without undertaking analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; (4) the court erred in denying Defendant’s right to testify at his trial; (5) the court erred in instructing the jury on a count; (6) the court erred in denying a post-trial motion to withdraw as counsel; (7) the court erred in applying four sentencing enhancements; and (8) there was a complete miscarriage of justice.

We affirm the district court on all issues.

I

Defendant operated a prostitution ring between at least 2010 and continuing through November 2013, when he was arrested. He was indicted on ten counts. The charges included kidnapping, sex trafficking, and sexual exploitation of a child. After a week-long trial, a jury found him guilty on all ten counts. The court sentenced Defendant to three terms of life imprisonment, as well as seven shorter terms, all to be served concurrently. This appeal followed, raising numerous challenges.

II

A

Defendant first argues that the district court wrongly denied a motion to continue his trial. "We review the denial of a motion for a continuance for abuse of discretion." United States v. Copeland , 707 F.3d 522, 531 (4th Cir. 2013). A district court abuses its discretion "when its denial of a motion for continuance is ‘an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.’ " Id. (quoting Morris v. Slappy , 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) ). "[E]ven if such an abuse [of discretion] is found, the defendant must show that the error specifically prejudiced h[is] case in order to prevail." Id. (alterations in original) (quoting United States v. Williams , 445 F.3d 724, 739 (4th Cir. 2006) ).

Here, Defendant’s motion to continue—the fourth such motion—came two days before the start of trial, which was scheduled for August 5, 2014. The district court denied the motion, stating, "This case was peremptorily set. It has been on the docket for a long time. I’m not inclined to continue this case." J.A. 105. Indeed, the previous motion to continue, which the parties had filed jointly over two months prior, had specified a trial date of August 5, 2014. Dist. Ct. ECF No. 33. Laying out the reasons to continue, that joint motion had stated, among other things, that the case was complex, that there was a great deal of discovery, that the parties expected the trial to last over a week, and that the Government would be bringing witnesses from Washington, D.C., Florida, Texas, and California. At that time, defense counsel had needed more time to locate experts, research legal issues, and conduct plea negotiations.

Defendant’s motion on appeal repeated arguments from the previous motion. The case was complex and had voluminous discovery. Counsel again needed more time to locate experts, research legal issues, and conduct plea negotiations. Compare Dist. Ct. ECF No. 33 ¶ 14 with Dist. Ct. ECF No. 56 ¶ 15. Counsel also cited "unexpected time drains" with other clients over the preceding two weeks. J.A. 89. However, counsel did not explain why the "unexpected time drains" and the additional discovery interfered with the preceding months of preparations. Nor did he identify any expert witness he proposed to locate, much less show he could obtain their attendance if the continuance were granted. See United States v. Clinger , 681 F.2d 221, 223 (4th Cir. 1982) (listing elements a party usually must prove when seeking a continuance to secure the attendance of a witness). Nor did he address why he failed to file the motion at an earlier date. See United States v. LaRouche , 896 F.2d 815, 824 (4th Cir. 1990) ("The later that a motion for a continuance is made, the more likely it is made for dilatory tactics; hence, it is less likely that the district court arbitrarily denied the continuance.").

We hold that the trial court was within its discretion to deny the motion to continue. And because there was not an abuse of discretion, we will not discuss the question of prejudice.

B

Defendant’s next challenge concerns his absence at a single morning session of his week-long trial. We review a district court’s decision to "proceed with a trial when the defendant is absent" for abuse of discretion, and the "district court’s factual findings will not be disturbed unless clearly erroneous." United States v. Camacho , 955 F.2d 950, 953 (4th Cir. 1992). Violations stemming from a defendant’s absence from the courtroom are subject to a harmless error analysis. United States v. Harris , 814 F.2d 155, 157 (4th Cir. 1987).

The Fifth Amendment "guarantees a defendant the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings, while Rule 43 [of the Federal Rules of Criminal Procedure] enshrines an even broader right to be present." United States v. Runyon , 707 F.3d 475, 517 (4th Cir. 2013) (citation and internal quotation marks omitted). However, a defendant may waive his right to be present if he is voluntarily absent "without compelling justification" after the trial begins. United States v. Rogers , 853 F.2d 249, 252 (4th Cir. 1988). The right "cannot cursorily, and without inquiry, be deemed by the trial court to have been waived simply because the accused is not present when he should have been." Id. (quoting United States v. Beltran-Nunez , 716 F.2d 287, 291 (5th Cir. 1983) ). And, the court should make efforts to ascertain the defendant’s location and reason for absence, as well as the "likelihood the trial could soon proceed with the defendant, the difficulty of rescheduling and the burden on the government." Id.

Trial began as scheduled on August 5 and Defendant was present for the entirety of the first two days. On the third day of trial, however, at the start of the morning session, Defendant was absent. The district court was advised that, early that morning, Defendant reported experiencing "some type of seizure activity." J.A. 660. Medical staff at the jail examined him, noted he had no seizure history and appeared to have no seizure activity, and suggested he was malingering. After the medical staff evaluated Defendant, he was taken to the courthouse, where, according to the marshal, he lay on the floor passively refusing to come to court. Defendant’s counsel went to him to explain the court intended to rule he was waiving his right to be present. Upon returning, counsel indicated that Defendant seemed to have made a slight head movement in response to counsel’s attempt to communicate. The court then made a finding that Defendant was voluntarily absenting himself from the proceedings. Even after that announcement, the district court judge used an audio-video connection set up in Defendant’s cell to make a personal attempt to communicate with Defendant. After having spent an hour addressing Defendant’s absence, the court finally ended the inquiry and resumed the trial without him physically present. The trial remained available to Defendant in the holding cell via the audio-video connection. In the afternoon, Defendant rejoined the proceedings in the courtroom.

Unlike in cases in which this Court concluded that the district court summarily assumed that the defendant waived his right to be present, the district court here made repeated efforts to ascertain Defendant’s status and ensure Defendant’s presence. See Camacho , 955 F.2d at 954–55 (concluding that the district court abused its discretion in determining that the defendant had voluntarily absented himself from trial where a serious snowstorm made it likely that the defendant was delayed in traffic); Rogers , 853 F.2d at 252 (concluding that the district court abused its discretion where it merely "inquired of defense counsel regarding [the defendant’s] whereabouts, but did nothing else"). We therefore conclude the district court did not abuse its discretion in proceeding with the trial in Defendant’s absence.

C

Defendant also appeals the district court’s denial of a motion to exclude the expert testimony of software quality assurance engineer Daniel Magdael. We review a district court’s decision to admit expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), for abuse of discretion.

Belville v. Ford Motor Co. , 919 F.3d 224, 232 (4th Cir. 2019). "A district court abuses its discretion if it makes an error of law or clearly erroneous factual finding." Id. Such rulings are "entitled to great deference." NCO Fin. Sys., Inc. v. Montgomery Park, LLC , 918 F.3d 388, 396 (4th Cir.), as amended (Mar. 15, 2019). Where the alleged error was harmless, we may affirm without determining if the district court improperly admitted the testimony. United States v....