US v. Mohamed, 09-2349.

• Decision Date: 13 April 2010
• Docket Number: No. 09-2349.,09-2349.
• Citation: 600 F.3d 1000
• Parties: UNITED STATES of America, Appellee, v. Elias MOHAMED, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

600 F.3d 1000

UNITED STATES of America, Appellee, v. Elias MOHAMED, Appellant.

No. 09-2349.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2010.

Filed: April 13, 2010.

COPYRIGHT MATERIAL OMITTED

Robert D. Lewis, Davis, Lewis & Associates, Springfield, MO, argued, for appellant.

Randall D. Eggert, Asst. U.S. Atty., Springfield, MO, argued (Matt J. Whitworth, Acting U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before GRUENDER and SHEPHERD, Circuit Judges, and LANGE¹, District Judge.

LANGE, District Judge.

Elias Mohamed ("Mohamed") was convicted of conspiracy to commit mail fraud in connection with a scheme to obtain fraudulently Missouri commercial driver's licenses. Mohamed appeals the denial of his motion to suppress materials found in his possession during a traffic stop and challenges a verdict director instruction that included overt acts not specifically alleged in the indictment. For the reasons set forth below, we affirm.

I. Factual Background

On May 25, 2005, at 3:04 a.m., Minnesota State Patrol Corporal Robert Frisby ("Trooper Frisby") stopped a car driven by Mohamed for not having an operating light illuminating his rear license plate. During the initial interaction, Trooper Frisby asked Mohamed "what he was up to" and "where he was headed." In response, Mohamed explained that he was driving a borrowed car and returning to Kansas City after attending a funeral in Minneapolis. Mohamed told Trooper Frisby that the funeral had occurred earlier in the day, and after taking a nap, he had decided to return to Kansas City that night. During the conversation, Trooper Frisby noticed that some of the door panels on the inside of the car were loose, that Mohamed seemed more nervous than would be considered normal, that his breathing was heavier and deeper, and that his nervousness "remained elevated or slightly increased the longer the stop went."

At 3:11 a.m., roughly seven minutes into the traffic stop, Trooper Frisby completed the warning ticket and told Mohamed he was "good to go." Trooper Frisby acknowledged in his testimony that the reason for the stop had been completed. However, as Mohamed got out of the patrol car, Trooper Frisby asked whether Mohamed had any drugs, weapons, or money in the car. Mohamed told him "no," but was unable to make eye contact and instead looked toward his car. Trooper Frisby then asked Mohamed for consent to search the car. Mohamed said that he would prefer not to allow Trooper Frisby to search the car. Trooper Frisby told Mohamed that he had reasonable suspicion to run a drug dog around the car. Trooper Frisby testified that his reasonable suspicion arose from the loose panels in the car, Mohamed's explanation of his travel purpose, his level of nervousness, and his inability to sit still or maintain eye contact.

At 3:16 a.m., approximately five minutes after the stop had been completed, Trooper Frisby began walking the dog around the car. The canine search was completed within thirty-five seconds. The dog alerted to the car. About twelve minutes elapsed between the time Trooper Frisby initially stopped Mohammed's car at 3:04 a.m. and the time the dog made the positive identification. Following the dog's alert, Trooper Frisby concluded that he now had probable cause to search the car for controlled substances. Trooper Frisby found marijuana seeds inside the car and documents pertaining to Missouri commercial driver's licenses inside the trunk.

On September 20, 2006, Mohamed was charged with conspiracy to commit mail fraud. In the Overt Acts portion of Count 1 charging conspiracy to commit mail fraud, paragraph 35 alleged that Mohamed directed students to Ernest White ("White"), another alleged co-conspirator, knowing White would provide students with fraudulently obtained Missouri commercial driver's licenses by and through the use of the mail.

After he was indicted, Mohamed moved to suppress any evidence obtained from the May 25, 2005 search of his car, claiming that the search violated his rights under the Fourth Amendment. The Magistrate Judge² held a suppression hearing and, on October 23, 2007, entered a report and recommendation to deny the motion to suppress, concluding that the continued detention following the completion of the purpose of the stop was de minimis. On November 9, 2007, the district court³ adopted the report and recommendation.

At trial, co-conspirator White testified that he helped individuals pass the Missouri commercial driver's license examination by providing students at South Central Career Center ("SCCC"), a third-party tester under contract with the State of Missouri to administer the skills test, with answers to the written portion under the guise of translation services. White testified that in 2003 he met Osman Abdullahi ("Abdullahi"). Abdullahi operated a business named "Translation Station," where he provided translation services to students taking the written test. He informed White that he provided answers to the students together with translation services. White helped students pass the skills portion of the test by bribing one of SCCC's third-party testers, Orbin May ("May"), to assure the students passed the driving portion of the test.

White identified Mohamed as one of Abdullahi's business associates. White testified that Mohamed knew about the arrangement between White and May and that Mohamed continued to send students to White to help them pass the commercial driver's license skills test. White testified that Mohamed and Abdullahi referred between 80 and 120 students to White.

The government also provided testimony of Abdu Mohamed Osman ("Osman"). Osman testified that Mohamed sold him a Missouri commercial driver's license form D3R for $900. Osman identified the D3R found in the trunk of Mohamed's vehicle by Trooper Frisby as a document that he purchased from Mohamed to obtain a commercial driver's license. The D3R form which Osman purchased from Mohamed indicated that he had taken the skills test at SCCC and that the test was administered by May.

Ahmed Muhidin Sharif ("Sharif"), who received assistance in obtaining his Missouri commercial driver's license from Abdullahi, testified that he directed a student to Mohamed to obtain a commercial driver's license. Sharif stated that the student left with Mohamed and then returned two hours later with a completed commercial driver's license skills document showing that he had passed the skills test.

The government introduced records of Mohamed's cell phone use as evidence of the mail fraud conspiracy. The records showed that the cell phone number that Mohamed had provided to Trooper Frisby had been used in numerous telephone contacts with May, White, and Abdullahi during the time of the conspiracy. FBI Agent Clayton Bye interviewed Mohamed after his arrest and testified that Mohamed told him that he knew Abdullahi and White. Mohamed denied having translated for them or possessing any papers that would help a person fraudulently to obtain a commercial driver's license.

At trial, the district court gave a verdict director instruction, instruction 21. Paragraph 4 of jury instruction 21 stated that one element that the government must prove in order for the defendant to be found guilty is that:

"While the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more of the following acts for the purpose of carrying out or carrying forward the agreement or understanding:

a. assisted in providing translation services which actually fraudulently provided the correct answers to the Missouri CDL written test in order to allow the student to then take the CDL driving test to obtain a Missouri CDL;

b. directed persons seeking to obtain CDL licenses to co-defendant Ernest White, knowing that White would obtain these CDL licenses in an illegal manner by fraudulent means through his relationship with codefendant Orbin May;

c. with other persons sold outdated versions of the Missouri CDL driving exam forms without the person purchasing the form actually having taken the Missouri CDL driving test."

On January 7, 2009, a jury found Mohamed guilty of conspiracy to commit mail fraud. He was sentenced on May 28, 2009, and filed a notice of appeal on June 7, 2009.

II. Standard of Review

With regard to a district court's ruling on a motion to suppress, we review the findings of fact for clear error and the legal conclusions de novo. United States v. Pena-Ponce, 588 F.3d 579, 583 (8th Cir.2009). We review the district court's jury instructions for an abuse of discretion. United States v. Lewis, 593 F.3d 765, 771 (8th Cir.2010). In this review, we must analyze whether the instructions, taken as a whole, and viewed in light of the evidence and applicable law, fairly and accurately submitted the issues in the case to the jury. United States v. Rehak, 589 F.3d 965, 972 (8th Cir.2009); United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000).

III. Discussion

A. Fourth Amendment Issues

Mohamed concedes that Trooper Frisby lawfully stopped his car based on probable cause. Failing to have his license plate illuminated is a traffic violation, albeit minor, and therefore establishes probable cause for initially stopping Mohamed. See United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998); Minn.Stat. § 168.12 (2009). A positive identification by a dog during a canine search following a lawful stop of a vehicle provides probable cause that drugs are present in the vehicle, thereby justifying a search of the vehicle. See United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir.1994) (en banc). Therefore, because the initial stop by Trooper Frisby and the ultimate search of the vehicle were both lawful, the evidence obtained from the search will be suppressed only if the continued detention of Mohamed, from the time the purpose of the stop was completed to the time of the canine search, was...