US v. Mohammad Al-Suqi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00191-JCC-1 Copies to all parties and the district court/agency. [999411529].. [13-4830]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4830

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMMAD TAHER AL-SUQI,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:13-cr-00191-JCC-1)

Submitted:

July 24, 2014

Decided:

August 7, 2014

Before KEENAN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Alan D. Bowman, LAW OFFICE OF ALAN D. BOWMAN, Newark, New
Jersey, for Appellant. Dana J. Boente, United States Attorney,
Paul J. Nathanson, Jasmine H. Yoon, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mohammad Taher Al-Suqi was convicted, following a jury
trial, of nineteen counts of aiding in the preparation of a
false income tax return, 26 U.S.C. § 7206(2), two counts of
making

and

subscribing

§ 7206(1),

and

one

a

false

count

of

income

making

federal agent, 18 U.S.C. § 1001.
district

court

improperly

tax

a

return,

false

26

U.S.C.

statement

to

a

On appeal, he argues that the

admitted

evidence

that

he

created

false verifications of employment (“VOE”) and evidence from an
undercover Internal Revenue Service (“IRS”) investigation.

Al-

Suqi further asserts that the prosecutor’s reference to the VOEs
during

closing

argument

was

plainly

improper.

Finally,

he

contends that the district court erroneously relied on evidence
not proved at trial in assessing the tax loss attributable to
him for sentencing purposes.

Finding no error in the district

court’s rulings, we affirm.
First,
irrelevant

and

evidentiary
States v.

Al-Suqi

contends

unnecessary.

rulings

Benkahla,

for
530

We

abuse
F.3d

that

the

review

of

300,

a

VOE

evidence

district

discretion.
309

(4th

Cir.

See

was

court’s
United

2008).

A

district court abuses its discretion by acting “arbitrarily or
irrationally” in admitting evidence.
marks omitted).

2

Id. (internal quotation

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“Evidence

of

a

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crime,

wrong,

or

other

act

is

not

admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.”

Fed.

R.

Evid.

404(b)(1).

Such

evidence

may,

however, “be admissible for another purpose, such as proving
motive,

opportunity,

intent,

preparation,

plan,

knowledge,

identity, absence of mistake, or lack of accident.”
Evid. 404(b)(2).

Fed. R.

To be admissible under Rule 404(b), evidence

must be “(1) relevant to an issue other than character; (2)
necessary;

and

Evid. 403.

(3)

reliable,”

and

must

also

to

Fed.

R.

United States v. Siegel, 536 F.3d 306, 317, 319 (4th

Cir. 2008) (internal quotation marks omitted).
“damage

satisfy

a

defendant’s

case

is

not

a

Under Rule 403,

basis

for

excluding

probative evidence” because “[e]vidence that is highly probative
invariably

will

be

prejudicial

to

the

defense.”

United

States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).
We conclude that the district court did not abuse its
discretion when it admitted the VOE evidence.

Evidence that Al-

Suqi had prepared similar false documents for relatively meager
compensation was highly probative on the issue whether he acted
knowingly and without mistake in preparing the false returns
charged in the indictment, the central issue at trial.
the

VOEs

were

highly

relevant

3

and

significantly

aided

Thus,
the

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Government

in

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meeting

its

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burden

to

show

that

Al-Suqi

acted

willfully.
Next, Al-Suqi challenges the district court’s decision
to admit evidence recorded during an IRS undercover operation.
An

IRS

agent,

posing

preparation

business

during

time

the

as

a

seeking

period

when

submitted false tax returns.

taxpayer,
to

have

Al-Suqi

entered
a

tax

Al-Suqi’s

return

allegedly

tax

prepared

prepared

and

The district court concluded that

the recording and transcript of the meeting were intrinsic to
the charged offenses and admissible under Rule 403.
“Evidence

of

uncharged

conduct

is

not

other

crimes

evidence subject to Rule 404 if the uncharged conduct arose out
of the same series of transactions as the charged offense, or
. . . is necessary to complete the story of the crime on trial.”
United

States

v.

Basham,

561

F.3d

(internal quotation marks omitted).

302,

326

(4th

Cir.

2009)

Such intrinsic evidence is

“inextricably intertwined” with evidence of the charged offenses
and forms an integral part of the testimony concerning them.
United

States

v.

Lighty,

616

F.3d

321,

352

(4th

Cir.

2010)

(internal quotation marks omitted).
We conclude that the district court did not abuse its
discretion

in

admitting

the

challenged

evidence,

because

evidence was intrinsic to the charges in the indictment.

the
The

recording showed Al-Suqi preparing the undercover agent’s tax
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return in the same fraudulent manner that he prepared the tax
returns underlying the charges.

The meeting occurred during the

same time period that Al-Suqi was preparing the tax returns that
were the subject of the indictment.

While Al-Suqi’s case was

damaged by the incriminating recording and transcript, we cannot
say that he was unfairly prejudiced.

See Grimmond, 137 F.3d at

833.
Al-Suqi next contends that the prosecutor improperly
stated during closing argument that Al-Suqi deceived banks by
confirming the false information contained in the VOEs.

Because

Al-Suqi did not object to this statement at trial, we review for
plain error.

United States v. Umana, 750 F.3d 320, 351 (4th

Cir. 2014).
A defendant’s due process rights are violated by a
prosecutor’s closing argument when (1) the prosecutor’s remarks
were

improper,

defendant’s

and

substantial

denied a fair trial.
Al-Suqi

has

(2)

not

the

improper

rights

to

remarks

such

a

degree

Lighty, 616 F.3d at 359.

demonstrated

that

the

prejudiced
that

he

the
was

We conclude that

prosecutor’s

isolated

remark, which was supported by evidence adduced at trial, was
either improper or unfairly prejudicial.
Finally,

Al-Suqi

argues

that

the

district

erroneously calculated the tax loss attributable to him.

court
He

asserts that under Alleyne v. United States, 133 S. Ct. 2151
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(2013), the tax loss amount is an element of the crime that must
be submitted to the jury.
any

fact,

other

than

a

We disagree.
prior

Alleyne requires that

conviction,

that

increases

the

statutory minimum punishment is an element of the offense that
must be proved beyond a reasonable doubt.
2162-63.

133 S. Ct. at 2155,

The Supreme Court cautioned that its holding “does not

mean that any fact that influences judicial discretion must be
found by a jury.”

Id. at 2163.

was

to

relevant

only

determine

The tax loss calculation here
Al-Suqi’s

advisory

Guidelines

range and had no impact on any mandatory minimum sentence.
therefore

reject

Al-Suqi’s

challenge

to

the

tax

We
loss

calculation.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the material before this
Court and argument will not aid the decisional process.
AFFIRMED

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