US v. Amar Endri

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00044-LMB-1. Copies to all parties and the district court. [999949340]. [15-4470]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4470

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AMAR ENDRIS,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:15-cr-00044-LMB-1)

Argued:

September 23, 2016

Decided:

October 18, 2016

Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.
Jack Morgan,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender, Kevin R. Brehm, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant.
Dana J. Boente, United States Attorney, John T.
Gibbs, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Amar Endris of one count of possessing a
firearm with an obliterated serial number, in violation of 18
U.S.C. § 922(k). Endris appeals his conviction and sentence. For
the following reasons, we affirm.
I.
In early 2014, the FBI began investigating Amar Endris for
potential criminal offenses. 1 As part of its investigation, the
FBI used a confidential informant, Dylan Smith, 2 to make contact
with him. During the investigation, Endris remarked to Smith
that he wanted to find a firearm that the Government could not
trace; in response, the FBI instructed Smith to offer Endris a
gun from a man named “Paul.” Pursuant to these instructions,
Smith told Endris that he could buy a gun from “Paul” for $300.
Smith also told Endris that the serial number was scratched off
and

the

gun

was

thus

illegal

to

possess.

Endris

responded,

“we’ll talk, don’t, don’t tell me on the phone we’ll talk about
it when, we’ll talk about it.” 3 (J.A. 281). Endris asked if he

1

Because the jury found Endris guilty, “we recite the facts
. . . in the light most favorable to the government.” United
States v. McNeal, 818 F.3d 141, 146 n.3 (4th Cir. 2016).
2

Dylan Smith is a pseudonym. Smith testified under this
name at trial.
3

All recordings and texts are presented as they were at

trial.

2

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Smith

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could

meet

to

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discuss

the

purchase.

During

that

ensuing discussion, Endris told Smith he was willing to buy the
gun but was worried about the price. He later texted Smith to
say that he did not have $300, but to “[t]ell Paul to save it
doe I we’ll get it some other time.” (J.A. 126).
In early October, Endris informed Smith that he was leaving
the country with family to go to Ethiopia. 4 For the next two
months, during which Endris told Smith he was in Ethiopia, there
is

no

evidence

that

Endris

attempted

to

legally

purchase

a

firearm, and Smith made no mention of the gun from “Paul.”
On December 4, Endris sent Smith a Facebook message, asking
him, “Paul steel got the 17?” (J.A. 129). Three days later,
Endris sent another message asking, “Am good u talk to poul?”
(J.A.

130-31).

Endris

then

texted

Smith

several

days

later,

telling him he was back in the country and asking if Smith could
“please hit up Paul ASAP” so Endris could get the gun “this week
I needit.” (J.A. 132). On December 15, Smith told Endris that
Paul still had the gun and reminded him that the serial number
was scratched off. Endris replied, “no problem,” and “I want it
tomorrow or, or Wednesday.” (J.A. 306). Endris increased his

4

In fact, Endris remained in northern Virginia during this

time.

3

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urgency the next day, saying that he “need dat tmrw” and asked
if Paul had ammunition for the weapon. (J.A. 133).
Smith and Endris met “Paul” on December 17 in a shopping
center parking lot. Endris brought $300 with him and, after some
haggling, purchased a Glock handgun with a scratched off serial
number.

After

taking

possession

of

the

gun

Endris

was,

in

Smith’s opinion, as happy as a “child on Christmas,” (J.A. 137),
using a flashlight to examine it and asking if the gun “got
bodies on it,” (J.A. 83). Endris never asked for a receipt and
left the transaction with the gun.
The

FBI

promptly

arrested

Endris,

and

the

Government

charged him with one count of possession of a firearm with an
obliterated
trial,

serial

Endris

introducing

number,

moved

certain

in

in

violation

limine

recordings

to

keep

that

of
the

occurred

§

922(k).

Before

Government
prior

to

from
Smith

offering Endris the gun from “Paul.” The district court denied
the motion, concluding that, because Endris intended to raise an
entrapment

defense,

the

recordings

were

necessary

to

prove

predisposition.
Following a two-day trial, the jury convicted Endris of the
§

922(k)

violation.

While

awaiting

sentencing,

Endris

was

released to his parents’ care. This arrangement ended when his
parents

contacted

the

Probation

4

Office

and

said

they

were

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worried because they found pictures on Endris’ phone of Endris
posing with guns.
At sentencing, the district court expressed great concern
regarding Endris’ post-conviction activities. Accordingly, after
sentencing Endris to 30 months imprisonment, the court announced
special

conditions

for

his

supervised

release.

Condition

4

provides that “[t]he defendant shall not utilize any computer or
internet

services

to

access

information

regarding

firearms,

soldiers of fortune, or any type of violence.” (J.A. 539).
II.
On appeal, Endris challenges: (1) the admission of three
recordings

under

Rule

404(b);

and

(2)

Condition

4

of

his

supervised release. 5 We address these issues in turn.
A.
Rule 404 generally prohibits evidence of other crimes or
bad

acts

to

prove

the

defendant’s

character

and

conduct

in

accordance with his character. See Fed. R. Evid. 404(b)(1). Such
5

Endris also challenges the sufficiency of the evidence
against him, arguing that the Government failed to prove
predisposition. When, as here, entrapment is submitted to the
jury, Endris’ guilty verdict “comprehends a finding of no
entrapment” and we can “overturn this determination only if no
rational trier of fact could have found predisposition beyond a
reasonable doubt, viewing the evidence in the light most
favorable to the prosecution.” United States v. Jones, 976 F.2d
176, 180 (4th Cir. 1992). Applying this standard, we have
reviewed this claim and find it to be without merit because a
rational juror could have found predisposition.

5

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evidence, however, may be admissible “for another purpose, such
as

proving

motive,

opportunity,

intent,

preparation,

plan,

knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b). “Rule 404(b) is viewed as an inclusive
rule, admitting all evidence of other crimes or acts except that
which tends to prove only criminal disposition.” United States
v. Young, 248 F.3d 260, 271 (4th Cir. 2001) (internal quotation
marks omitted). “To be admissible under Rule 404(b), evidence
must

be

(1)

relevant

to

an

issue

other

than

character;

(2)

necessary; and (3) reliable.” United States v. Siegel, 536 F.3d
306, 317 (4th Cir. 2008) (internal quotation marks omitted).
Additionally, evidence should be excluded under Rule 404(b) if
its probative value is substantially outweighed by its unfair
prejudice to the defendant. United States v. Johnson, 617 F.3d
286,

296–97

(4th

Cir.

2010).

We

review

the

district

court’s

admission of evidence under Rule 404(b) for abuse of discretion.
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
As noted, Endris moved in limine to suppress three audio
recordings

of

conversations

mentioning

the

gun

with

the

that

occurred

obliterated

prior

serial

to

Smith

number.

The

conversations occurred on August 5, August 19, and August 26.
On August 5, Endris told Smith about a recent encounter
with an acquaintance:

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Endris: Remember that Spanish dude from the first
time? . . . I went up to him, uh. I was, I was
chillin’ with him on, on Sunday, He, and uh, uh, he,
I, I was talking to him. I told you his people are
like the cartel and stuff. So I asked him, um, do you
know anybody with guns and stuff. He’s like yah but he
said for uh new ones it’s gonna be expensive. Clean
ones, but for dirty, dirty ones it will be cheaper.
Smith: Yeah, of course dirty ones will be cheaper.
(J.A. 594).
Next,

on

August

19,

Endris

and

Smith

discussed

the

possibility of using a gun to rob Endris’ khat dealer:
Endris: You wanna try and do it?
Smith: I mean if you make up a plan and it’s straight
enough my brother.
Endris: It is. It’s good.
Smith: I might be down.
Endris: Akh, here’s the thing. You got to. I won’t
Smith: You just got to make sure the plan is
Endris: What do you think about ski masks or not? What
if, what if we go there, like, the first thing we do
is have ski masks and go in there? That's hot?
(J.A. 597).
Finally, on August 26, Endris discussed wanting to find
someone to buy a gun for him:
Endris: But what I want to do, I want to find somebody
that’s 21 that I trust and shit that’s cool and I
wanna give them the money and I wanna go to the store
with them and I want them to buy it.
(J.A. 599).

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The
because

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district
Endris

conversations

court

intended
were

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denied
to

Endris’

raise

“necessary”

an

to

motion,

ruling
defense,

entrapment

show

that

that
the

Endris

“had

a

predisposition to obtain an unlawful weapon.” (J.A. 15).
In United States v. McLaurin, 764 F.3d 372, 380 (4th Cir.
2014),

we

held

that

“there

is

no

doubt

that

proving

predisposition is one of the purposes for which bad-act evidence
may

be

admissible.”

Because

predisposition

was

a

“broad

concept,” a “broad swath of evidence, including aspects of the
defendant’s character and criminal past, is relevant to proving”
it.

Id.

at

381.

Thus,

when

a

defendant

raises

entrapment,

“‘prior bad acts relevant to a defendant’s predisposition to
commit a crime are highly probative and can overcome the Rule
404(b) bar.’” Id. (quoting United States v. Van Horn, 277 F.3d
48, 57 (1st Cir. 2002). To be admissible under Rule 404(b) to
prove predisposition, the past conduct need not be identical to
the crime charged. Rather, the conduct need only be “similar
enough and close enough in time to be relevant to the matter at
issue. Id. at 382 (internal quotation marks omitted).
Applying
conversations

McLaurin,
were

we

offered

find
for

no

abuse

the

of

discretion.

permissible

purpose

The
of

predisposition and were necessary to offset Endris’ entrapment
defense. Moreover, the August 5th and August 26th conversations
relate

to

Endris’

continuing

efforts
8

to

obtain

a

firearm

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illegally, while the August 19th conversation shows that Endris
had a plausible use for an untraceable firearm. 6
We also find that the probative value of the conversations
is not substantially outweighed by the risk of unfair prejudice.
The evidence is prejudicial to Endris’ entrapment defense, “just
as all evidence suggesting guilt is prejudicial to a defendant,”
United States v. Williams, 445 F.3d 724, 730 (4th Cir. 2006),
but “[t]hat kind of general prejudice . . . is not enough to
warrant exclusion of otherwise relevant, admissible evidence,”
Siegel, 536 F.3d at 319.
B.
Endris
release.

also

We

challenges

review

the

Condition

imposition

4

of

of

his

supervised

a

supervised

release

condition for abuse of discretion. United States v. Holman, 532
F.3d 284, 288 (4th Cir. 2008). After Endris’ conviction, he was
remanded into his parents’ custody pending sentencing. During
the time between conviction and sentence, his parents contacted
the

Probation

custody

because

Office
of

and

asked

disturbing

that

images

they
they

take

Endris

discovered

on

into
his

phone: photographs of him posing with guns. In addition, before
6

While these conversations are admissible individually,
their admissibility is underscored when viewed cumulatively. See
Bourjaily v. United States, 483 U.S. 171, 179-80 (1987) (“The
sum of an evidentiary presentation may well be greater than its
constituent parts.”).

9

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sentencing,

a

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neuropsychological

evaluation

concluded

that

Endris has Autism Spectrum Disorder. 7
In

light

of

these

post-conviction

developments

and

the

district court’s concern that the “combination of severe mental
illness and weapons is deadly,” (J.A. 524), the court noted that
Endris requires a “very strict regime of supervised release” to
“avoid a tragedy down the road,” (J.A. 525). To that end, the
court explained that it was adding a “very strict restriction
on” Endris’ “use of computer and the Internet,” and that Endris
could have “absolutely no communication about guns or any type
of

weapon

publication

or

any

doing

kind
with

of
—

soldiers
having

to

of

fortune,

do

with

any

kind

violence.”

of

(J.A.

527). 8 The court also prohibited Endris from possessing “any type
of weapon, that includes knives, nunchucks, any kind of weapon
at all.” (J.A. 529). Endris indicated that he understood each of
these conditions. Endris’ attorney objected to the “violence”
condition,

and

the

court

responded

that

it

would

leave

the

7

As explained in the evaluation, Autism Spectrum Disorder
“consists of two major components: 1) Persistent deficits in
social communication and social interaction across multiple
context; and 2) Restricted, repetitive patterns of behavior,
interests, or activities.” (J.A. 558).
8

The judgment sheet memorialized this condition as stating
that Endris “shall not utilize any computer or internet services
to access information regarding firearms, soldiers of fortune,
or any type of violence.” (J.A. 539).

10

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condition because “if there’s a problem . . . if the Probation
Office thinks there’s been a violation, we’ll address it at that
point,

but

I

want

it

made

clear

that

[Endris]

needs

to

be

extremely conservative as to what sites he decides to go visit
when he’s on the internet.” (J.A. 533).
A district court is empowered to impose special conditions
on supervised release so long as the condition is “reasonably
related” to the 18 U.S.C. § 3553(a) factors and involves “no
greater deprivation of liberty than is reasonably necessary.”
United

States

(internal

v.

Armel,

quotation

585

marks

F.3d

182,

omitted).

186

The

(4th

Cir.

relevant

2009)

statutory

factors include the following: the nature and circumstances of
the offense, the history and characteristics of the defendant,
and the need to protect the public. 18 U.S.C. § 3583(d)(1). A
district

court

has

“broad

latitude”

in

imposing

special

conditions. United States v. Dotson, 324 F.3d 256, 260 (4th Cir.
2003).
Under the particular facts of this case, we believe the
restriction is reasonably related to at least two sentencing
goals:

protection

characteristics
reference

to

of

of
the

“violence”

the

public

defendant.
is

and
Endris

overbroad

and

the

history

argues
may

that

land

him

and
the
in

violation of his supervised release for any number of innocuous

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activities. However, when read in the context of this case, we
find the “violence” reference permissible.
“Conditions . . . may afford fair warning even if they are
not precise to the point of pedantry. In short, conditions of
[supervised

release]

can

be

written—and

must

be

read—in

a

commonsense way.” United States v. Paul, 274 F.3d 155, 166-67
(5th Cir. 2001) (internal quotation marks omitted). Here, the
court made clear throughout sentencing its concern with Endris’
fascination with guns and criminal plots and, in its reasoned
view, determined that strict conditions were needed to protect
not only the public but also Endris. The reference to “violence”
is not free-standing; instead, it is tied to Endris’ use of the
internet

and

aimed

at

a

very

specific

concern

and

potential

harm: to prevent him from examining firearms and other weapons
and soldiers of fortune. We therefore find the district court
did not abuse its discretion in imposing Condition 4.
III.
For the foregoing reasons, we affirm Endris’ conviction and
sentence.
AFFIRMED

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