USA v. Marwan Abuhasan

Filing

UNPUBLISHED OPINION FILED. [10-40029 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 12/13/2010 for Appellant Marwan M. Abuhasan [10-40029]

USA v. Marwan Abuhasan: 10-40029 Case

Document: 00511300728 Page: 1 Date Filed: 11/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40029 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A R W A N M. ABUHASAN, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-530-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* A t a border checkpoint, Marwan M. Abuhasan, a citizen of Jordan, was fo u n d with nearly 400 kilograms of marijuana in the trailer of his truck. He was c o n v ic t e d by a jury of possessing with intent to distribute more than 100 k ilo g r a m s of marijuana and falsely representing that he was a citizen of the U n ite d States. He challenges his convictions, arguing that the evidence was in s u ffic ie n t to establish that he knew the marijuana was in the trailer and that h e misrepresented his citizenship.
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He also argues that there was a fatal

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-40029 Document: 00511300728 Page: 2 Date Filed: 11/22/2010 No. 10-40029 v a r ia n c e between the indictment and the Government's proof on the falser e p r e s e n t a t io n -o f-c itiz e n s h ip count. B e c a u s e Abuhasan properly preserved his sufficiency-of-the-evidence a r g u m e n t by moving for a judgment of acquittal at the close of the Government's c a s e and at the close of all the evidence, our review is de novo. See United States v . Shum, 496 F.3d 390, 391 (5th Cir. 2007). We will uphold the jury's verdict if a reasonable trier of fact could conclude from the evidence that the Government e s t a b lis h e d all of the elements of the offense beyond a reasonable doubt. United S ta te s v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). The evidence, both direct a n d circumstantial, is viewed in the light most favorable to the jury's verdict. United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995). The jury may c h o o s e any reasonable construction of the evidence, and we accept the credibility d e c is io n s that support the verdict. United States v. Mata, 491 F.3d 237, 242 (5th C ir . 2007). However, we will reverse if the evidence equally or nearly equally p r o v id e s circumstantial support theories of innocence and guilt. United States v . Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). A b u h a s a n attacks the credibility of the Government's witnesses, faulting t h e m for failing to record interviews with Abuhasan and to obtain a written s t a t e m e n t from him. However, the jury was responsible for determining the w e ig h t of the evidence and the credibility of the witnesses and was entitled to c r e d i t the testimony of the Government's witnesses over Abuhasan's own t e s t im o n y . See United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994). Border Patrol agents and Immigration and Customs Enforcement agents t e s t ifie d that Abuhasan changed his story regarding the loading of the trailer a n d whether he or the workers at the loading dock sealed the trailer. Inconsistent statements to law enforcement officials constitute evidence of guilt. United States v. Cano-Guel, 167 F.3d 900, 905 (5th Cir. 1999). Moreover, other c ir c u m s t a n t ia l evidence supported the drug conviction. Video confirmed that no m a r iju a n a was loaded into the trailer with the legitimate cargo and Abuhasan 2

Case: 10-40029 Document: 00511300728 Page: 3 Date Filed: 11/22/2010 No. 10-40029 h a d control of the trailer from the time it left the loading dock until the m a r iju a n a was found, making it less likely that a third party secreted the drugs in the trailer. A package of seals nearly identical to the seal given to Abuhasan b y the warehouse employees was found in the truck and one of those seals was m is s in g , which could create an inference that the seals were intended for use in d r u g smuggling. Abuhasan became nervous when agents questioned him about n a m e s stored in his mobile phones, and Abuhasan's log books contained false e n tr ie s. The amount--nearly 400 kilograms--and value--$701,000--of the

m a r iju a n a also supports the conclusion that Abuhasan knew the marijuana was in the trailer because the jury could reasonably have inferred that he would not h a v e been entrusted with such extremely valuable cargo without his knowledge. See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). Abuhasan p o in ts to other evidence that he says could support a conclusion that a third p a r ty secreted the marijuana in the trailer unbeknownst to him, but for a jury t o convict, the evidence does not have to rule out every possible theory of in n o c e n c e or be incompatible with every conclusion other than guilt. United S t a t e s v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). The jury was free to reject A b u h a s a n 's theory. Moreover, the Border Patrol agent's testimony that

A b u h a s a n falsely represented his citizenship, credited by the jury, was sufficient t o support the conviction for misrepresenting himself as a U.S. citizen. A s for the variance claim, the indictment alleges that Abuhasan falsely r e p r e s e n t e d that he was a U.S. citizen at the Falfurrias, Texas, checkpoint, but t h e proof at trial showed that he made the statement at the checkpoint in Sarita, T e x a s . Abuhasan did not preserve the error in the district court because he did n o t object; thus, we review for plain error. See United States v. Ratner, 502 F.2d 1 3 0 0 , 1302-03 (5th Cir. 1974). Abuhasan, though, cannot succeed because the p la c e where he made the false statement was extraneous to the offense; thus, t h e r e was no error, plain or otherwise. To secure a conviction, the Government is not required to prove irrelevant or nonessential facts recited in the indictment 3

Case: 10-40029 Document: 00511300728 Page: 4 Date Filed: 11/22/2010 No. 10-40029 a s long as it proves other facts that are charged and that satisfy the essential e le m e n t s of the crime. United States v. Robinson, 974 F.2d 575, 578 (5th Cir. 1 9 9 2 ). Here, the place where Abuhasan made his false statement is not an e le m e n t of the crime. See 18 U.S.C. § 911; United States v. Harrell, 894 F.2d 1 2 0 , 126 & n.2 (5th Cir. 1990). It was sufficient that the Government prove, as i t did, that Abuhasan falsely declared that he was a U.S. citizen to the Border P a t r o l agent. T h e judgment of the district court is AFFIRMED.

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