USA v. Aquil Alkufi
Filing
OPINION filed: We AFFIRM the convicitons and Aoun's sentence and VACATE Alkufi's sentence and REMAND for resentencing. Decision not for publication. Martha Craig Daughtrey, Circuit Judge; John M. Rogers, Circuit Judge; and Helene N. White, (authoring), Circuit Judge. [14-1834, 14-2313]
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 1
NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0061n.06
Nos. 14-1834/14-2313
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AQUIL ALKUFI and IBRAHIM AOUN,
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
)
FILED
Feb 01, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: DAUGHTREY, ROGERS, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Following a jury trial, Defendants-Appellants
Aquil Alkufi and Ibrahim Aoun were convicted of firearm and controlled substances offenses.
The district court sentenced Alkufi to eighty-four months’ imprisonment and Aoun to
360 months’ imprisonment.
Both Defendants appeal their convictions and sentences.
We
AFFIRM the convictions and Aoun’s sentence and VACATE Alkufi’s sentence and REMAND
for resentencing.
I.
BACKGROUND
On January 25, 2013, Detroit police executed a search warrant at 6135 Stahelin Street
(Stahelin House). Then-Sergeant Tharadrous White (White) had the first line of sight into the
house during the search and immediately saw Aoun running “full strength” up the stairs carrying
a green, cloth bag. (PID 573–74, 577.) Once police entered the house, they “cleared” the second
floor, where they found Aoun. (PID 712–13.) Later, officers searched Aoun and found he had
$660 in cash.
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 2
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
Officers later recovered a green lunch bag from a “crawl space” on the second floor of
the house, which White identified as the bag he had seen Aoun carrying. (PID 585, 661.) The
bag contained 1) a loaded Smith & Wesson .38-caliber revolver, 2) 393.5 pills marked “Watson
540,” 3) 133 pills marked “Watson 853,” 4) twelve pills marked “Watson 3203,” and 5) two
additional pills. Lab tests revealed all the pills marked “Watson” were dihydrocodeinone and
one pill found was amphetamine. An officer testified that the quantity of pills found was
consistent with distribution, and that “[t]he gun was inside the bag next to the pills possibly for
protection,” which was consistent with narcotics trafficking. (PID 706–07.)
In the downstairs, front bedroom, officers found 1) a loaded, semi-automatic handgun on
the bed, 2) “numerous empty, plastic vials with white tops,” and 3) a digital scale. (PID 625–26,
630.) Officers testified that the types of vials found were commonly used to package high-end
marijuana and that they often found firearms inside the houses at which they executed search
warrants for narcotics because drug traffickers often armed themselves to guard against
robberies. No fingerprints were found on the firearms recovered at the Stahelin House.
Police found several other persons on the first floor of the house, including two women,
three men, and a small child. Officers testified that they found no weapons or large sums of cash
on any of these persons. Although no one present claimed the house as their residence, White
testified that the house did not appear to be vacant. Police also found an “aggressive pit bull”
locked in the basement, which Aoun said was his. (PID 715.)
Following the Stahelin House search, Detroit police involved the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) in the case and obtained an arrest warrant for Aoun on
March 12, 2013. After an ATF source told him Aoun was at a house located at 6352 Auburn
Street (Auburn House), agent Richard Jury (Jury) observed the location for about three hours.
-2-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 3
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
During that time, he saw sixty-eight vehicles arrive at the Auburn House, make contact with
someone at the location, and depart within approximately thirty seconds to three minutes. He
testified that in his experience, this was a “clear sign of narcotics trafficking.” (PID 794.)
Officer James Wiencek (Wiencek) also watched the house from about 10:00 or 10:30 PM until
1:00 AM and observed twenty-five or thirty persons arrive separately and either meet someone
on the porch or go inside; they stayed for an “average of 45 seconds to two and a half minutes,”
which he testified was consistent with narcotics trafficking. (PID 958–59.) After Jury confirmed
that Aoun was still there, police entered the house to arrest Aoun around 1:10 AM.
When police arrived, there were seven persons in or just outside the house; someone on
the porch ran inside the house and officers followed him. Officers testified that the house
appeared to be vacant—that is, it was in disrepair, there were very few pieces of furniture and
they were in poor condition, the kitchen had no refrigerator or utilities, several of the kitchen
cabinets had been ripped off, there was no food, and there appeared to be no running water.
Two officers testified that they saw Aoun throw a plastic bag out a second-floor window.
The bag was later found to contain multiple individual containers that collectively contained
approximately forty-two grams of marijuana. In the room where officers found Aoun, they also
found $962 in a hole in the wall.
Sergeant Jeffrey Pacholski (Pacholski) testified that when he reached the second floor of
the Auburn House, he heard officers outside shouting, and then saw Alkufi “div[e]” back into the
house through the window carrying a black grocery-style bag. (PID 870–72.) Inside the bag,
officers found a loaded 9-millimeter Sig Sauer semi-automatic handgun, two loaded Ruger semiautomatic handguns, an unloaded .357 magnum revolver, two additional Ruger magazines, and a
holster, in which one of the Rugers was found. When police searched Alkufi’s person, they
-3-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 4
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
found a key to the front door and $526 in cash. Jury also testified that no one else present had a
key to the house and that police found ten photographs of Alkufi in a bedroom on the second
floor.
Officers testified that they found drugs in several rooms of the Auburn House and
throughout the property. In the basement, they found a plastic bag containing over 600 pills in a
number of pill bottles; some of the pills had markings such as “DAN 5513,” “Watson 540,” and
“Watson 3202.” Wiencek testified that the packaging and quantity of pills was “indicative of
street-level sales.”
(PID 978–79.)
Lab tests revealed these pills to be dihydrocodeinone
(162 pills), amphetamine (52 pills), carisoprodol, or Soma (176 pills), and alprazolam, or Xanax
(281 pills). Officers also found a one-gallon Ziploc bag in the mailbox “containing small plastic
vials containing suspected marijuana,” (PID 803, 898); they testified that the vials were similar
to those they had seen used in drug sales in the neighborhood, and that the way the marijuana
was packaged was consistent with distribution. In the kitchen, officers found a digital scale and
a plastic vial containing marijuana. Jury testified that it was “extremely common” to find a
digital scale “in proximity to the sale of narcotics,” and that the vials were similar to those
recovered at the Stahelin House. (PID 805, 809–10.) Officers also found a bag of marijuana on
the living-room floor.
Police found additional firearms and ammunition at the house, including fifty .22-caliber
rounds in the basement, a loaded 12-gauge shotgun in the yard, and another unloaded firearm
that “look[ed] like a Tommy gun, assault rifle” in the backyard.
(PID 926–28, 966–67.)
No usable fingerprints were found on any of the firearms recovered at the Auburn House.
In addition to Alkufi and Aoun, there were five persons at the house when police arrived,
including Durgham Alfadhili (Alfadhili), who was also present when police searched the
-4-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 5
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
Stahelin House. None of the other persons were found with illegal narcotics or firearms in their
possession. Nobody in the house admitted living there. Officers found in the house a manila
envelope with Alfadhili’s medical records, as well as mail addressed to four persons who were
not present.
Both Aoun and Alkufi were arrested at the Auburn House. Aoun was charged with:
1) one count of possession with intent to distribute controlled substances in violation of 21 USC
§§ 841(a), (b)(1)(C), (b)(1)(E) (Count One, relating to the Stahelin House); 2) two counts of
maintaining places for purposes of distributing controlled substances in violation of 21 U.S.C.
§ 856(a)(1) (Count Two for the Stahelin House and Count Six for the Auburn House); 3) two
counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Three for
the Stahelin House and Count Seven for the Auburn House); 4) two counts of possession of a
firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A) (Count Four
for the Stahelin House and Count Eight for the Auburn House); and 5) conspiracy to possess
with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a), (b)(1)(D), and
846 (Count 5, relating to the Auburn House). Counts Five, Six, and Eight also charged Alkufi.
Several counts charged Alkufi and Aoun with aiding and abetting each other, including Count
Six, maintaining a place (Auburn House) for the purpose of distributing controlled substances.
Alkufi spoke to police following his arrest. At trial, Jury testified that Alkufi told him
that he sold pills, carried a gun for protection, and that one of the Rugers found at the Auburn
House belonged to him. Jury also testified that Alkufi denied selling pills from the Auburn
House and stated he never sold marijuana, but admitted selling pills from a Metro PCS store.
When asked whether he had asked Alkufi about “any guns that were found in the house at
6352 Auburn Street that night,” Jury replied, “Yes. Task Force Officer Wiencek asked Aquil
-5-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 6
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
Alkufi, stated to him that you guys have guns because selling drugs is dangerous, to protect
yourself, protect the money, protect the drugs, and Aquil Alkufi said, yes, sir, and he also said
that it’s part of the game.” (PID 818.)
The government also introduced evidence at trial about two incidents that occurred in
April 2012.
Officer Brian Headapohl (Headapohl) testified that on April 16, 2012, after
receiving a “police run” that persons were selling narcotics, he and a partner went to a vacant
house on Forrer Street (Forrer House), located in the same neighborhood of Detroit as the
Auburn and Stahelin Houses. (PID 750–52.) There, he found Aoun in a room upstairs, putting a
bag into a vent in the floor. Another person was hiding in the closet. The bag contained what
Headapohl suspected to be marijuana, twenty-two 500-milligram pills marked “Watson 540,”
and 162 325-milligram pills marked “Watson 538.” Headapohl also found clear plastic vials
with white caps, which looked like those found in the Stahelin House, and which were similar to
those he had seen used to package marijuana in other narcotics-trafficking cases. Once at the
police station, Headapohl recovered $437 from Aoun.
Later, Hopp testified that on April 11, 2012, he executed a search warrant at a house at
6797 Montrose (Montrose House), also in the same neighborhood of Detroit, where officers
found six or seven men inside the house, including Alkufi and Aoun. In the living room, police
found marijuana and a bag with approximately eleven pill bottles containing pills, and in one of
the bedrooms they recovered “15 live 30/30 rifle rounds.” (PID 932.) During the search,
officers recovered $906 from Alkufi and $759 from Aoun. Hopp also recovered “[s]even clear
plastic tubes with white tops” containing what he believed to be marijuana, weighing twentythree grams, and a total of 566 pills, including 214 marked “DAN 5513,” twenty marked
“Watson 853,” and 138 marked “Watson 503.” (PID 983–85.) Hopp did not see Aoun in direct
-6-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 7
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
possession of either the drugs or ammunition at the Montrose House. Neither Alkufi nor Aoun
was found in the room with the ammunition and no firearms were recovered at the house.
The jury found Aoun and Alkufi guilty on all counts. The court sentenced Alkufi to
twenty-four months’ imprisonment each for conspiracy to possess with intent to distribute
controlled substances and maintaining a place for the purpose of distributing controlled
substances, to run concurrently, and to the sixty-month minimum for possession of a firearm in
furtherance of drug trafficking in violation of § 924(c), to run consecutive to the other counts.
The court sentenced Aoun to 360 months’ imprisonment: sixty months and 300 months under
§ 924(c)’s consecutive mandatory minimums and one day and time served on all other counts.
II.
EVIDENTIARY CHALLENGES
We review the district court’s evidentiary rulings for abuse of discretion. United States v.
Freeman, 730 F.3d 590, 595 (6th Cir. 2013). “An abuse of discretion occurs when a district
court relies on clearly erroneous findings of fact, improperly applies the law or uses an erroneous
legal standard.” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005). “[W]e will leave
rulings about admissibility of evidence undisturbed unless we are left with the definite and firm
conviction that the [district] court . . . committed a clear error of judgment in the conclusion it
reached.” United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004). “‘Even when the district
court has abused its discretion in admitting evidence, we do not reverse a conviction if the error
is harmless.’” Freeman, 730 F.3d at 595 (quoting United States v. Lopez-Medina, 461 F.3d 724,
741 (6th Cir. 2006)). To establish harmless error on a non-constitutional issue, “the government
must show by a preponderance of the evidence that the error did not materially affect the
verdict.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015).
-7-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 8
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
A. Evidence of Firearm Operability
Aoun argues the district court abused its discretion in prohibiting him from introducing
evidence that the .38 Smith & Wesson seized at the Stahelin House was inoperable. The district
court excluded this evidence on the ground that operability of the firearm was not relevant.
At trial, Aoun noted for the record that he had intended to introduce 1) a March 2013
government report indicating that the .38 Smith & Wesson was inoperable, 2) an examination of
the gun by an ATF agent in February 2014 indicating that “after three tries of pulling back the
hammer and pulling the trigger it was possible to cause the hammer to strike the mechanism to
result in an explosion of the primer,” and 3) testimony from a retired Michigan State Police
firearms examiner, who had examined the gun and would testify that the gun had been altered,
and that due to a defect, “it would be necessary to handle [it], at best, with two hands,” to fire it.
(PID 915–17.)
Aoun first argues that the question whether a weapon fits the legal definition of “firearm”
is an issue of fact that the district court may not take away from the jury. The statute defines
“firearm,” in relevant part, as “any weapon (including a starter gun) which will or is designed to
or may readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C.
§ 921(a)(3)(A). However, this Circuit has previously held that “a firearm need not be operable to
satisfy the definition of firearm for purposes of 18 U.S.C. § 924(c).” United States v. Bandy, 239
F.3d 802, 805 (6th Cir. 2001); see also United States v. Mack, 258 F.3d 548, 552 (6th Cir. 2001);
United States v. Yannott, 42 F.3d 999, 1006 (6th Cir. 1994). Even if “the operation of a weapon
may be relevant to whether it is designed to expel a projectile by the action of an explosive,”
United States v. Counce, 445 F.3d 1016, 1018 (8th Cir. 2006) (per curiam), Aoun’s evidence did
not show that the .38 Smith & Wesson was not designed to operate as a firearm, only that it did
-8-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 9
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
not perform that function well. Moreover, “[a] jury can reasonably conclude that a weapon is
capable of firing a projectile, or at least that it had been designed for that purpose, where the jury
has the actual weapon before it and there is testimony that the weapon was loaded when it was
recovered by the police.” United States v. Morris, 533 F. App’x 538, 545 (6th Cir. 2013) (citing
United States v. Forrest, 402 F.3d 678, 686–87 (6th Cir. 2005)). Thus, the district court did not
err in excluding the evidence on this basis.
Next, Aoun argues that operability of the .38 Smith & Wesson is relevant to whether he
possessed it in furtherance of drug trafficking in violation of § 924(c). To prove a violation of
§ 924(c), “and specifically the in furtherance element, the government must show a specific
nexus between the gun and the crime charged.” United States v. Brown, 732 F.3d 569, 576
(6th Cir. 2013) (citation and internal quotation marks omitted).
That is, the firearm must
“advance, promote, or facilitate the crime.” United States v. Paige, 470 F.3d 603, 609 (6th Cir.
2006) (citation omitted). “To determine whether this specific nexus exists, we consider six
factors—the Mackey factors—first adopted in United States v. Mackey, 265 F.3d 457, 462
(6th Cir. 2001) . . . to help distinguish possession in furtherance of a crime from ‘innocent
possession of a wall-mounted antique or an unloaded hunting rifle locked in a cupboard.’”
Brown, 732 F.3d at 576 (citation omitted).
First, “[i]n order for the possession to be in
furtherance of a drug crime, the firearm must be strategically located so that it is quickly and
easily available for use.” Mackey, 265 F.3d at 462. “Other factors that may be relevant . . .
include whether the gun was loaded, the type of weapon, the legality of its possession, the type
of drug activity conducted, and the time and circumstances under which the firearm was found.”
Id.
-9-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 10
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
Assuming, arguendo, that Aoun’s evidence was relevant to whether he used the firearm
in furtherance of drug trafficking and should have been admitted, any error in excluding this
evidence was harmless. Aoun argues the exclusion materially affected the verdict because the
government presented no direct evidence to support the § 924(c) charge and because the
evidence would have shown the gun was so difficult to operate that he could not have used it in
furtherance of a drug crime. Aoun relies on United States v. Leary, 422 F. App’x 502, 511
(6th Cir. 2011), where the court held that evidence that firearms were found in the same closet as
drugs was insufficient to convict Leary of possessing a firearm in furtherance of drug trafficking.
In Leary, however, the firearms were found in a duffel bag in the closet and were not “easily
within [defendant’s] reach.” 422 F. App’x at 513. Here, in contrast, the evidence strongly
suggests the firearm was found in a crawl space because Aoun was able to quickly put it there
when police arrived. Moreover, in Leary, there was little other evidence to support the charge,
including no evidence of sale or manufacture of drugs within the apartment and a relatively small
quantity of drugs. See id.
Here, there was ample evidence that Aoun possessed a firearm in furtherance of drug
trafficking. White testified that when police arrived at the Stahelin House, he saw Aoun quickly
run up the stairs with a bag, which was later found to contain the .38 Smith & Wesson,
supporting that the firearm was located in a place where Aoun could easily access it. Moreover,
Aoun’s possession of the firearm was illegal and officers testified that the quantity of pills found
in the bag with the firearm was consistent with distribution. Further, the firearm fit into what
officers described as a lunch bag, suggesting it was a “small weapon that is easily transported or
concealed on the body, making it more likely to be used ‘in furtherance’ of a drug crime than
would be, for example, a rifle.” United States v. Gill, 685 F.3d 606, 611 (6th Cir. 2012).
-10-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 11
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
Other evidence that establishes a “specific nexus” was also present here—the firearm was found
in close proximity to drugs and the cash on Aoun’s person, see United States v. Penney, 576 F.3d
297, 315 (6th Cir. 2009); the government introduced testimony that drug dealers “often carry
guns to protect themselves and their drugs,” see United States v. Street, 614 F.3d 228, 236
(6th Cir. 2010); and Aoun was found in close proximity to the drugs, money, and firearm,
see United States v. Beals, 698 F.3d 248, 270–71 (6th Cir. 2012); United States v. Whitehead,
415 F.3d 583, 590 (6th Cir. 2005). Although alone, the mere presence of a firearm where drugs
are found or generalized testimony that drug traffickers often use firearms is not sufficient to
establish a “specific nexus,” see Mackey, 265 F.3d at 461; see also United States v. Nance, 40 F.
App’x 59, 67 (6th Cir. 2002), harmless-error review requires the court to consider the evidence
on the record as a whole, United States v. Branham, 97 F.3d 835, 851 (6th Cir. 1996). Viewed in
light of the record as a whole, the evidence Aoun wished to present would not have materially
affected the verdict and therefore any error in its exclusion was harmless.
B. Montrose House Evidence
Alkufi argues the district court abused its discretion in admitting testimony about the
Montrose House that he contends was improper character evidence under Federal Rule of
Evidence 404. The government contends we should review Alkufi’s challenge for plain error
because Alkufi did not object to the evidence at trial. Because Alkufi’s challenge fails under
either standard, we need not decide whether he adequately preserved the issue for appeal. 1
1
Although Alkufi did not object at trial when this evidence was introduced, Aoun filed a
motion in limine to exclude evidence about uncharged conduct (including the incidents at the
Montrose and Forrer Houses) on the grounds the evidence violated Federal Rules of Evidence
403 and 404(b). Thus, the district court addressed this issue in ruling on Aoun’s motion.
-11-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 12
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
Federal Rule of Evidence 404(b) prohibits introduction of “[e]vidence of a crime, wrong,
or other act . . . 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). However, “[t]his
evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. 404(b)(2).
We use a three-tiered analysis to review evidentiary rulings in the 404(b) context:
(1) we first review for clear error a district court’s determination that the “other
act” took place, (2) we then conduct a de novo review of the district court’s legal
determination that the evidence was admissible for a proper purpose, and (3) we
review for abuse of discretion the district court’s determination that the probative
value of the other acts evidence is not substantially outweighed by its unfairly
prejudicial effect.
United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006) (citation and internal quotation marks
omitted); see also United States v. Olive, 804 F.3d 747, 754 (6th Cir. 2015); United States v.
Clay, 667 F.3d 689, 694 (6th Cir. 2012).2
1. Evidence the Act Occurred
First, we look to whether “there is sufficient evidence to support a finding by the jury that
the defendant committed the similar act.” United States v. Yu Qin, 688 F.3d 257, 262 (6th Cir.
2012) (quoting Huddleston v. United States, 485 U.S. 681, 685 (1988)). This requirement was
satisfied by the testimony of two officers about the Montrose House incident. See United States
v. Sandoval, 460 F. App’x 552, 562 (6th Cir. 2012) (“‘[T]he testimony of a single witness is
2
Although there is some disagreement in this Circuit about whether the three-tiered
standard of review conflicts with the general use of an abuse-of-discretion standard to review
evidentiary rulings, see Clay, 667 F.3d at 694; id. at 702 (Kethledge, J., dissenting), we have
noted that “the three-part test and the abuse of discretion standard ‘are not in fact inconsistent,
because it is [an] abuse of discretion to make errors of law or clear errors of factual
determination.”’ United States v. Richardson, 597 F. App’x 328, 332 (6th Cir. 2015) (quoting
United States v. Bell, 516 F.3d 432, 443 (6th Cir. 2008)).
-12-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 13
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
sufficient for a reasonable jury to conclude that the defendant committed the prior acts.’”)
(quoting United States v. Johnson, 458 F. App’x 464, 470 (6th Cir. 2012)).
2. Purpose of Evidence
“In determining whether the proffered evidence is admissible for a legitimate purpose, it
must be probative of a material issue other than character.” United States v. Hardy, 643 F.3d
143, 150 (6th Cir. 2011). This standard is met “if (1) the evidence is offered for a permissible
purpose, (2) that purpose is in issue, and (3) if probative to the purpose for which it is offered.”
Id. at 150–51(citing United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003)).
The government introduced evidence about the Montrose House to show Alkufi’s intent
and plan, which is a permissible purpose under Rule 404. Fed. R. Evid. 404(b)(2). Further,
“where the crime charged is one requiring specific intent, the prosecutor may use 404(b)
evidence to prove that the defendant acted with the specific intent.” United States v. Johnson,
27 F.3d 1186, 1192 (6th Cir. 1994); see also United States v. Carter, 779 F.3d 623, 625 (6th Cir.
2015). Alkufi was charged with conspiracy to possess with intent to distribute controlled
substances, which is a specific-intent crime. United States v. Merriweather, 78 F.3d 1070, 1078
(6th Cir. 1996). This Circuit “has ‘repeatedly recognized that prior drug-distribution evidence is
admissible [under Rule 404(b)] to show intent to distribute.’” Hardy, 643 F.3d at 151 (citing
cases); see also Clay, 667 F.3d at 695; Bell, 516 F.3d at 443.
Alkufi argues that his intent was not “in issue” because he admitted to selling pills at
Metro PCS and only denied selling them at the Auburn House and in conspiracy with Aoun.
However, this argument demonstrates that as to a conspiracy to distribute controlled substances
at the Auburn House, Alkufi’s intent was at issue. Further, where a defendant pleads not guilty
to a charge requiring specific intent, “he put[s] his general intent and specific intent at issue,”
-13-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 14
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
regardless whether he advances a defense on the issue of intent at trial. See United States v.
Lattner, 385 F.3d 947, 957 (6th Cir. 2004); see also United States v. Jenkins, 593 F.3d 480, 485
(6th Cir. 2010). Thus, Alkufi’s intent was “in issue” at trial.
We next consider whether the evidence offered was probative of intent, that is, “whether
the evidence relates to conduct that is ‘substantially similar and reasonably near in time’ to the
specific intent offense at issue.” Yu Qin, 688 F.3d at 263 (quoting United States v. Haywood,
280 F.3d 715, 721 (6th Cir. 2002)). To be probative of intent, the prior act need not “be identical
in every detail” to the charged offense. Perry, 438 F.3d at 648 (citation and internal quotation
marks omitted). However, in drug-distribution cases, this Circuit has “only found . . . [past
distribution] evidence probative of present intent . . . when the prior [acts] were part of the same
scheme or involved a similar modus operandi as the present offense.” See Carter, 779 F.3d at
627 (quoting Bell, 516 F.3d at 443–44). “[T]o hold otherwise would be to ‘employ[ ] the very
kind of reasoning—i.e., once a drug dealer, always a drug dealer—which 404(b) excludes.’” Id.
(quoting Bell, 516 F.3d at 443–44).
Relying on Clay, 667 F.3d at 689, Alkufi argues the Montrose House incident is too
unrelated and far apart in time to be probative of his intent with respect to the Auburn House.
However, Alkufi’s reliance on Clay is misplaced. In Clay, this court held that evidence that
defendant had assaulted someone in 2006 was inadmissible to prove intent to cause serious
bodily harm to a different person in a 2007 carjacking because “[t]he two offenses at issue—
assault and carjacking—are too unrelated and too far apart in time to be probative of whether
Clay had the specific intent to do harm to [the victim].” 667 F.3d at 696. Here, the incidents at
issue were closer in time and bear more similarity than did the offenses in Clay. In both
incidents, Alkufi was found with a large amount of cash on his person in a house where a
-14-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 15
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
considerable quantity of drugs was recovered.
Further, the offenses occurred in the same
neighborhood and with some of the same people, including Aoun.
The evidence is thus
probative of whether Alkufi and Aoun intended to conspire to distribute controlled substances at
the Auburn House.
3. Balancing Probative Purpose and Prejudicial Effect
Finally, we must decide whether the district court abused its discretion in determining
that the prejudicial effect of this evidence did not outweigh its probative value. This court
considers four factors when making this determination: “(1) whether other act evidence was
unduly prejudicial; (2) the availability of other means of proof; (3) when the other acts occurred;
and (4) whether the district court gave a limiting instruction.” United States v. Brown, 147 F.3d
477, 483 (6th Cir. 1998). “We grant the district court ‘very broad’ discretion in determining
whether the danger of undue prejudice outweighs the probative value of the evidence.” United
States v. Poulsen, 655 F.3d 492, 509 (6th Cir. 2011) (citation and internal quotation marks
omitted); see also Yu Qin, 688 F.3d at 261.
Relying on Jenkins, 593 F.3d at 480, Alkufi argues that the similarity between the
Montrose and Auburn House incidents renders this evidence “highly prejudicial.” (See Alkufi
Br. 20–21; Alkufi Reply Br. 3–4.) In Jenkins, the court held that evidence of defendant’s eightyear-old conviction of possession with intent to distribute marijuana was inadmissible to show
intent to distribute marijuana, crack cocaine, and powder cocaine in 2006 because its prejudicial
effect outweighed its probative value. 593 F.3d at 484–86. There, however, the only similarity
between the offenses was possession with intent to distribute marijuana and the location, and the
court found the probative value of the evidence “microscopic at best” in light of the
overwhelming other evidence of intent presented at trial, leading the court to conclude that this
-15-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 16
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
evidence was “merely piling on.” See id. at 484–86. Here, the incidents at the Montrose and
Auburn Houses were more similar—that is, they occurred in the same neighborhood with some
of the same persons and involved substantially similar circumstances—and are therefore more
probative of a pattern or scheme. Additionally, although the Montrose House incident occurred
eleven months prior to the Auburn House search, this court has “previously held that evidence of
an eight-year-old prior drug transaction is not too remote to be admitted as evidence of intent in a
later drug trafficking prosecution.” United States v. Love, 254 F. App’x 511, 516 (6th Cir. 2007)
(citing United States v. Matthews, 440 F.3d 818, 830 (6th Cir. 2006) and United States v.
Persinger, 83 F. App’x 55, 59 (6th Cir. 2003)).
Alkufi also argues this evidence was prejudicial because the district court did not give a
contemporaneous limiting instruction. However, Alkufi did not request a contemporaneous
limiting instruction at trial. “The duty to provide an instruction . . . arises only ‘upon [the]
request’ of one of the parties.” United States v. Fraser, 448 F.3d 833, 839 n.3 (6th Cir. 2006)
(citation omitted). Indeed, we have previously held that a district court did not err where it did
not provide a contemporaneous limiting instruction for 404(b) evidence, but later did so during
the jury charge. See United States v. Waggoner, 207 F. App’x 576, 580 (6th Cir. 2006); United
States v. Johnson, No. 98-3183, 2000 WL 712385, at *9 (6th Cir. 2000). Here, the jury was
instructed on the admissibility of “other acts” evidence the day before hearing testimony about
the Montrose House incident.
Although this limiting instruction was made specifically in
reference to Aoun and the Forrer House incident, the jury was still instructed that it could only
consider “other acts” as they related to defendant’s intent or plan.
Since the court again
instructed the jury about this evidence during the jury charge—this time as to both defendants—
the failure to give a contemporaneous limiting instruction does not render this evidence unduly
-16-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 17
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
prejudicial. Therefore, the district court did not err in admitting testimony about the Montrose
House incident.
III.
CONFRONTATION CLAUSE CHALLENGE
This court generally reviews Confrontation Clause challenges de novo. United States v.
Ford, 761 F.3d 641, 652 (6th Cir. 2014). “However, when a defendant fails to object on
Confrontation Clause grounds at trial, we review the claim for plain error.” Id. (citing United
States v. Martinez, 588 F.3d 301, 313 (6th Cir. 2009)); see also United States v. Cromer, 389
F.3d 662, 672 (6th Cir. 2004). The government argues plain-error review applies because Aoun
did not timely object at trial to testimony regarding Alkufi’s statements. Aoun argues that he did
timely object, and therefore a de novo standard of review applies. We need not resolve this issue
because we find Aoun’s claim fails under either standard.
The Sixth Amendment guarantees a criminal defendant the right “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. This includes the right to cross-examine
witnesses regarding testimonial statements used against a defendant at trial. See Crawford v.
Washington, 541 U.S. 36, 59 (2004). Where defendants are tried jointly, the prosecution may
introduce the statement of a nontestifying codefendant only against the defendant who made the
statement and only where the statement does not “facially incriminate[]” the other defendant.
See Richardson v. Marsh, 481 U.S. 200, 207–08 (1987); United States v. Vasilakos, 508 F.3d
401, 407 (6th Cir. 2007). This principle stems from the Supreme Court’s decision in Bruton v.
United States, 391 U.S. 123, 124, 137 (1968), where it held that introduction into evidence of a
nontestifying codefendant’s confession that named Bruton violated Bruton’s Sixth Amendment
right to confrontation even though the jury was instructed not to consider it as evidence against
Bruton, observing, “there are some contexts in which the risk that the jury will not, or cannot,
-17-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 18
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
follow instructions is so great, and the consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be ignored.” Id. at 135.
Aoun argues that Jury’s testimony that “Wiencek asked Aquil Alkufi, stated to him that
you guys have guns because selling drugs is dangerous, to protect yourself, protect the money,
protect the drugs, and Aquil Alkufi said, yes, sir, and he also said that it’s part of the game,”
violated his rights under the Confrontation Clause because, from the question asked, and in the
context of evidence presented at trial, “you guys” could only be interpreted to include Aoun and
Alkufi.
However, a nontestifying codefendant’s statement must do more than incriminate by
implication to violate the Confrontation Clause.
Cases interpreting Bruton have found no
Confrontation Clause violation where a nontestifying codefendant’s statement is redacted to omit
any reference to the defendant and implicates the defendant only when linked to other evidence
presented at trial. See Richardson, 481 U.S. at 207–08 (limiting Bruton’s holding to situations
where statement facially incriminates the other defendant, and not to those where a statement
“became [incriminating] only when linked with evidence introduced later at trial”); Ford,
761 F.3d at 654; United States v. Winston, 55 F. App’x 289, 293–95 (6th Cir. 2003). Indeed, this
Circuit has held that “introduction of a declarant-codefendant’s self-incriminating, extra-judicial
statement, in a joint trial, where the defendant’s name is redacted and a neutral term is
substituted, avoids any Sixth Amendment or Bruton violation.” Vasilakos, 508 F.3d at 408.
Aoun relies on United States v. Schwartz, 541 F.3d 1331 (11th Cir. 2008) and United
States v. Ramirez-Perez, 166 F.3d 1106 (11th Cir. 1999), for the proposition that a nontestifying
codefendant’s statement can violate the Confrontation Clause by “linking [the] defendant by
implication.” (Aoun Br. 24.) However, the statement at issue in Schwartz was more directly
-18-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 19
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
incriminating than the phrase “you guys,” because it named a company of which Schwartz was
President. See Schwartz, 541 F.3d at 1333, 1351. The court found the statement “powerfully
incriminat[ing]” because it “compelled an inference that Schwartz directed [his company]” to
take the actions mentioned in the statement. See id. at 1351. Moreover, the court observed that
“[a]ny doubt that the limiting instructions were ineffective was erased when the prosecutor, in
his closing argument, expressly linked Schwartz to the companies named in [the] statement.”3
Id. And Ramirez-Perez sheds no light on whether a Bruton violation occurred because there, the
government conceded that there was a Bruton violation and the court therefore proceeded to
determine whether the error was harmless. See Ramirez-Perez, 166 F.3d at 1109–10.
The law is clear that introduction into evidence of a nontestifying codefendant’s
statement does not violate the Confrontation Clause where it does not name the defendant, and
implicates him only in light of other evidence presented at trial. See Richardson, 481 U.S. at
207–08; Ford, 761 F.3d at 654. Although some redacted statements may still violate Bruton
where the redactions make clear a specific name was omitted, see Gray v. Maryland, 523 U.S.
185, 188, 192 (1998) (“Redactions that simply replace a name with an obvious blank space or a
word such as ‘deleted’ or a symbol or other similarly obvious indications of alteration, . . . leave
statements that, considered as a class, so closely resemble Bruton’s unredacted statements that
. . . the law must require the same result.”), or where the statement itself contains information
that makes it obvious any redacted name is the defendant’s, see United States v. Macias,
387 F.3d 509, 519 (6th Cir. 2004) (finding Bruton violation where redacted statement “referred
directly to ‘subject two,’ who resides on Quest Drive”), neither is the case here. Alkufi’s
3
Although Aoun argues the prosecutor in his case used Jury’s testimony about Alkufi’s
statements against him in its closing argument, that claim is unsupported by the record.
-19-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 20
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
statement did not name Aoun directly, but implicated him by reference to other evidence from
which the jury could infer that he was one of the “guys.” In Vasilakos, we noted that because
there were multiple codefendants, the statements did not necessarily incriminate a single
codefendant. 508 F.3d at 408. Similarly, although Aoun was Alkufi’s only codefendant, the jury
heard testimony that five other persons were present at the Auburn House when police arrived.
Moreover, the government did not attempt to use this statement against Aoun at trial. Thus,
although Alkufi’s statement implicates Aoun when considered with other evidence presented at
trial, this is not a case where a codefendant’s statement alone powerfully incriminates the
defendant and cannot be cured by a jury instruction. Accordingly, the statement did not violate
Aoun’s Sixth Amendment rights.
IV.
SUFFICIENCY OF THE EVIDENCE
Alkufi argues the evidence was insufficient to convict him of any of the offenses. Aoun
challenges the sufficiency of the evidence for his convictions of maintaining a place for purposes
of distributing controlled substances at the Stahelin and Auburn Houses. When reviewing a
challenge to sufficiency of the evidence “we determine ‘whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United States v. Russell, 595 F.3d
633, 644 (6th Cir. 2010) (quoting United States v. Kone, 307 F.3d 430, 433 (6th Cir. 2002)).
“This Court may reverse the jury’s verdict only if it finds that the judgment is not supported by
substantial and competent evidence, whether direct or wholly circumstantial, upon the record as
a whole.” United States v. Hall, 549 F.3d 1033, 1040 (6th Cir. 2008).
-20-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 21
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
A. Alkufi: Conspiracy to Distribute Controlled Substances
To establish the elements of a conspiracy under 21 U.S.C. § 846, “the government must
prove, beyond a reasonable doubt, (1) an agreement to violate drug laws, (2) knowledge and
intent to join the conspiracy, and (3) participation in the conspiracy.” United States v. Caver,
470 F.3d 220, 232–33 (6th Cir. 2006) (citation and internal quotation marks omitted). To show
an agreement to violate drug laws, “the government need not prove the existence of a formal or
express agreement among the conspirators. Even a tacit or mutual understanding among the
conspirators is sufficient.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (internal
citation omitted). “Indeed, the existence of a conspiracy may be inferred from circumstantial
evidence that can reasonably be interpreted as participation in a common plan.” United States v.
Wheaton, 517 F.3d 350, 364 (6th Cir. 2008) (citation and internal quotation marks omitted).
Alkufi argues there is insufficient evidence to prove he conspired to possess or distribute
marijuana. However, the Second Superseding Indictment charged Alkufi with conspiracy to
possess with intent to distribute marijuana and a number of other controlled substances that were
found at the Auburn House. “It is settled law that an offense may be charged conjunctively in an
indictment where a statute denounces the offense disjunctively. Upon the trial, the government
may prove and the trial judge may instruct in the disjunctive form used in the statute.” United
States v. McAuliffe, 490 F.3d 526, 534 (6th Cir. 2007) (citation and internal quotation marks
omitted). The court instructed the jury in the disjunctive at trial. Alkufi further argues that
negating his participation in a conspiracy to distribute marijuana affects the convictions because
the government “used the marijuana to convict.” (Alkufi Reply Br. 1.) However, the record
does not support that the government used only marijuana to convict, or even that it focused on
marijuana more than other controlled substances found at the Auburn House.
-21-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 22
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
To the extent Alkufi intended to challenge his conviction of conspiracy to distribute
controlled substances generally—rather than only with respect to marijuana—his claim still fails.
Two officers testified that over the course of about 2 1/2 to 3 hours, activity consistent with drug
trafficking occurred at the Auburn House. Once inside, officers found a large quantity of pills
and marijuana, which they testified was consistent with distribution, as well as other indicia of
trafficking such as vials and a digital scale. Further, officers found a key to the house in Alkufi’s
pocket and numerous photos of him in the house, which belies his claim that he was “merely
present,” and indeed suggests he knew about and agreed to the trafficking.
See Wheaton,
517 F.3d at 364 (finding evidence linking defendant to location where drugs were sold relevant
to conspiracy charge). The jury also could have inferred participation from the fact that Alkufi
was found with a bag of firearms at the Auburn House, and later admitted one of them was his
and acknowledged to officers that using guns to protect drugs was “part of the game,” which
suggests he “took proactive steps to ensure the continued success of the conspiracy.” See United
States v. Smith, 609 F. App’x 340, 344 (6th Cir. 2015).
Alkufi’s argument that the government did not show he had a relationship, let alone
agreement, with Aoun, is not supported by the record. Evidence showed Alkufi and Aoun had
been found eleven months earlier in a house in the same neighborhood with a large quantity of
drugs, where both were in possession of large sums of cash. Moreover, at the Auburn House,
Alkufi was found in possession of $526 in cash, a bag of firearms, and a key to the house, all of
which suggest he agreed to participate in drug trafficking at the house. Thus, there was sufficient
evidence from which a jury could conclude beyond a reasonable doubt that Alkufi conspired to
sell controlled substances at the Auburn House.
-22-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 23
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
B. Maintaining a Place for Purposes of Distributing Controlled Substances
Both Alkufi and Aoun challenge their convictions of maintaining a place for purposes of
distributing controlled substances in violation of 21 U.S.C. § 856(a)(1). To prove a violation of
this section, “the government must prove beyond a reasonable doubt that [a defendant]
(1) knowingly, (2) maintained any place, whether permanently or temporarily, (3) for the
purpose of distributing a controlled substance.” Russell, 595 F.3d at 644. In order to satisfy the
purpose element, “the government need only prove that the defendant’s drug-related purpose for
maintaining a premises be ‘significant or important.’” Id. at 643.
As to the “maintaining” element, “it is not necessary that the defendant lease or own the
home.” Id. at 644. “Acts that evidence ‘maintenance’ are ‘such matters as control, duration,
acquisition of the site, renting or furnishing the site, repairing the site, supervising, protecting,
supplying food to those at the site, and continuity.’” Id. (quoting United States v. Clavis,
956 F.2d 1079, 1091 (11th Cir. 1992)).
“A variety of factual scenarios may amount to
‘maintaining’ a drug house under § 856(a), . . . [including where a person] owns or rents
premises, or exercises control over them, and for a sustained period of time, uses those premises
to manufacture, store, or sell drugs, or directs others to those premises to obtain drugs.” United
States v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008) (citing cases). “[W]hether a defendant has
‘maintained’ a place is necessarily a fact-intensive issue that must be resolved on a case-by-case
basis.” United States v. Payton, 636 F.3d 1027, 1043–44 (8th Cir. 2011) (quoting United States
v. Morgan, 117 F.3d 849, 857 (5th Cir. 1997)).
-23-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 24
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
1. Aoun: Stahelin House
Aoun challenges only the second element, arguing that there was insufficient evidence to
find him guilty of maintaining the Stahelin House because the evidence establishes only that he
was present when officers searched the house.
The government offers the following from which the jury could have concluded that
Aoun “maintained” the Stahelin House. First, although not dispositive, Aoun was present at the
house during a search for narcotics, suggesting he had some connection to the house.
See Russell, 595 F.3d at 645. But see Payton, 636 F.3d at 1043 (“A defendant’s mere presence
during a police search of a residence is insufficient to sustain a conviction under § 856(a)(1).”).
Additionally, Aoun possessed a firearm and had an “aggressive pit bull” in the basement,
indicating he took steps to protect the house. See Russell, 595 F.3d at 645; see also Clavis,
956 F.2d at 1091. Moreover, he knew where a crawl space was located and had a dog in the
basement, suggesting he was more than a “casual visitor.” See United States v. Verners, 53 F.3d
291, 296 (10th Cir. 1995); see also Morgan, 117 F.3d at 856–57 (finding relevant that the
defendant’s personal items were found at the location and that he stored items in non-common
areas of the house). Finally, when police arrived, Aoun ran with the pills and was the only
person with a large sum of cash in his possession, suggesting he had a supervisory role in the
drug distribution. Russell, 595 F.3d at 644; Clavis, 956 F.2d at 1091.
Relying on Clavis, 956 F.2d at 1090–91, Aoun contends that evidence that a defendant
may have regularly used the premises as a site from which to distribute drugs is not sufficient to
show that he “maintained” the house for that purpose. However, in Clavis, the court noted that
individual acts of sale by co-conspirators alone were insufficient to support the “maintenance”
element of § 856(a)(1). See id. at 1091. Although there was less evidence of sustained use in the
-24-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 25
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
instant case than in some others, there was evidence from which jurors could have concluded that
Aoun’s connection to the house was more substantial, including that he knew where a crawl
space was located, had a dog in the basement, and appeared to be the only person in control of
the drugs. Further, although sustained use is certainly an important factor, the statute states that
the place may be maintained “permanently or temporarily,” 21 U.S.C. § 856(a)(1), and Aoun
cites no authority—and we are aware of none—to support that there is a minimum amount of
time a defendant must maintain a place in order to be convicted under this statute. Based on the
record as a whole, a reasonable jury could have concluded beyond a reasonable doubt that Aoun
“maintained” the Stahelin House for purposes of drug trafficking.
2. Auburn House
a. Alkufi
Alkufi argues that because the evidence is insufficient to prove he conspired to possess
and distribute marijuana, it is also insufficient to sustain his conviction under § 856 for
maintaining a place for purposes of distributing controlled substances, which is dependent on the
underlying drug-trafficking conviction.
Since his only argument is based on insufficient
evidence to support the drug-trafficking conviction—for which we determined there was
sufficient evidence—this claim must fail.
However, even if we construe Alkufi’s argument to independently challenge this
conviction, that claim would also fail. There was testimony that when police arrived at the
Auburn House, Alkufi had a key to the front door, a bag containing four firearms, and $526 in
cash, from which the jury could reasonably conclude that he knew about the drug activity
occurring in the house. Moreover, Alkufi was the only person found with a key to the front door,
and ten photos of him were found in the house, suggesting that he “maintained” the house. As to
-25-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 26
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
purpose, “the government need only prove that the defendant’s drug-related purpose for
maintaining a premises be ‘significant or important.’” Russell, 595 F.3d at 643. Officers
testified that they observed activity consistent with drug trafficking at the house, and once inside
found a large quantity of pills and marijuana, firearms, and indicia of drug sales. The officers
also testified that the house appeared to be vacant, with no food or running water, and very little
furniture—that is, it did not appear to have any other purpose. Based on this evidence, a
reasonable jury could have concluded beyond a reasonable doubt that Alkufi maintained the
Auburn House for purposes of drug trafficking.
b. Aoun
The government argues that Aoun’s conviction on Count Six—maintaining the Auburn
House for purposes of distributing controlled substances—is adequately supported by evidence
that he possessed marijuana there (and threw it out the window); he and the marijuana were in
proximity to $962 in cash; and the pills in the basement “bore the same markings as the Vicodin
pills recovered from his drug houses on Montrose, Forrer, and Stahelin.” (Gov’t Br. 14–15.)
Although this provides little evidence that Aoun “maintained” the house, the jury was instructed
that it could find Aoun guilty of aiding and abetting Alkufi in maintaining the house for purposes
of distributing controlled substances. “In order to aid or abet another to commit a crime, a
defendant must in some way associate himself with the venture such that his participation is
intended to bring about the crime or make it succeed.” United States v. Clark, 928 F.2d 733, 736
(6th Cir. 1991). Under 18 U.S.C. § 2, “[a] defendant can be convicted as an aider and abettor
without proof that he participated in each and every element of the offense.” Rosemond v.
United States, 134 S. Ct. 1240, 1246 (2014) (quotation omitted). However, “an aiding and
-26-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 27
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
abetting conviction [also] requires . . . a state of mind extending to the entire crime,” not merely
a “different or lesser offense.” See id. at 1248 (emphasis added).
As discussed, there was sufficient evidence that Alkufi maintained the Auburn House for
purposes of drug trafficking. Although Aoun argues there was insufficient evidence that he
engaged in drug trafficking in the house, the record reflects otherwise. More than one officer
testified that he saw Aoun throw a plastic bag out a window, and that the bag was later found to
contain individual plastic vials of marijuana that officers testified were consistent with drug
trafficking. Further, Aoun was found in close proximity to $962 in cash, and the pills found in
the basement were similar to those found at the Stahelin, Montrose, and Forrer Houses. Thus,
the jury could have concluded that he participated in drug trafficking at the Auburn House.
As to whether Aoun intended to aid Alkufi in maintaining the house, the Supreme Court
has “previously found [the] intent requirement satisfied when a person actively participates in a
criminal venture with full knowledge of the circumstances constituting the charged offense.”
Rosemond, 134 S. Ct. at 1248–49. Thus, “for purposes of aiding and abetting law, a person who
actively participates in a criminal scheme knowing its extent and character intends that scheme’s
commission.” Id. at 1249. Here, a reasonable jury could have concluded from Aoun’s presence
in the house for several hours, participation in drug activity, and evidence that he had previously
been found in a similar situation with Alkufi at the Montrose House that he had full knowledge
of the scheme and intended to contribute to its success. Thus, there was sufficient evidence to
support the conviction on the basis that Aoun aided and abetted Alkufi in maintaining the
Auburn House for purposes of distributing controlled substances.
-27-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 28
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
C. Alkufi: Possession of a Firearm in Furtherance of Drug Trafficking
Alkufi next argues that the evidence was insufficient to show he possessed a firearm in
furtherance of drug trafficking in violation of § 924(c).4 The Second Superseding Indictment
charged Alkufi with possession of a firearm in furtherance of, inter alia, maintaining a place for
purposes of distributing controlled substances. As discussed, there is sufficient evidence to
establish that Alkufi committed the underlying offense.
Alkufi contends that only his statement to Jury tied his firearms to a drug-trafficking
offense, and because he admitted selling pills only at Metro PCS, there was no evidence
connecting his firearm to drug trafficking. However, the record belies this claim. Alkufi was
found in possession of four firearms, three of which were loaded, as well as $526 in cash, in a
house where officers testified that drug activity was taking place and large quantities of pills and
marijuana were found, along with other indicia of trafficking such as a digital scale and vials.
There was also sufficient evidence from which the jury could have concluded beyond a
reasonable doubt that Alkufi possessed a firearm in furtherance of drug trafficking. As discussed
supra, to prove a violation of § 924(c), “the government must show a specific nexus between the
gun and the crime charged.” Brown, 732 F.3d at 576. Factors bearing on this analysis include
whether the firearm was strategically located, “whether the gun was loaded, the type of weapon,
the legality of its possession, the type of drug activity conducted, and the time and circumstances
4
Alkufi argues in his brief that the evidence is insufficient to show he possessed a
firearm in furtherance of a marijuana-trafficking conspiracy. However, the Second Superseding
Indictment did not charge Alkufi with possession of a firearm specifically in furtherance of a
marijuana-trafficking conspiracy. Rather, it charged Alkufi with possession of a firearm in
furtherance of either possession with intent to distribute a controlled substance or maintaining a
place for the purpose of distributing controlled substances. Because Alkufi’s arguments
challenge the nexus between his firearm and any drug-trafficking offense, we address those
arguments here.
-28-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 29
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
under which the firearm was found.” Mackey, 265 F.3d at 462. Jury testified that Alkufi
admitted that he had a gun to protect himself, his drugs, and his money. The jury was not
required to accept Alkufi’s later qualification that he only sold pills from a different location.
Moreover, Alkufi was found in possession of four firearms, three of which were loaded. Officers
testified that the activity they observed at the house indicated drugs were being sold, and once
inside they found large quantities of pills and marijuana and other indicia of drug trafficking.
Thus, there was sufficient evidence for the jury to convict Alkufi of possession of a firearm in
furtherance of a drug-trafficking crime.
V.
SENTENCING CHALLENGES
A. Aoun
The district court sentenced to Aoun to 360 months’ imprisonment based on consecutive
mandatory minimum sentences for two violations of 18 U.S.C. § 924(c).
§§ 924(c)(1)(A)(1), (c)(1)(C)(i), (c)(1)(D)(ii).
See 18 U.S.C.
Aoun argues these mandatory consecutive
minimum sentences violate the separation-of-powers doctrine because they allow prosecutors—
via their charging decisions—to determine the sentence, rather than judges. This Circuit has
already rejected the arguments Aoun now makes. In United States v. Cecil, 615 F.3d 678, 695–
96 (6th Cir. 2010), we held “the separation-of-powers doctrine provides no comfort for those
seeking additional judicial discretion in the sentencing context” because “Congress has the
power to define criminal punishments without giving the courts any sentencing discretion.”
See also United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008) (rejecting argument “that a
statutory mandatory sentence violates the separation of powers doctrine because mandatory
minimums unconstitutionally shift sentencing discretion away from the courts to prosecutors”).
More recently, this court also rejected a separation-of-powers challenge to consecutive
-29-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 30
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
mandatory minimum sentences under § 924(c). United States v. Richardson, 793 F.3d 612, 632
(6th Cir. 2015). Since the precedent established in these cases is binding on this panel, Aoun’s
challenge to his sentence fails.
B. Alkufi
Alkufi challenges the procedural reasonableness of his sentence.
A sentence is
procedurally erroneous when a district court “fails to calculate the Guidelines sentencing range,
improperly applies the Guidelines or otherwise calculates the incorrect Guidelines sentencing
range, treats the Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors,
selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen
sentence.” United States v. Garcia, 758 F.3d 714, 724 (6th Cir. 2014). “While the district court
need not explicitly reference each of the section 3553(a) factors, there must still be sufficient
evidence in the record to affirmatively demonstrate the court’s consideration of them,” United
States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006), and “[the court’s] decision should be
sufficiently detailed . . . to permit meaningful appellate review,” Martinez, 588 F.3d at 325
(citation and internal quotation marks omitted).
Alkufi did not object to the procedural reasonableness of his sentence before the district
court. Although this would ordinarily subject Alkufi’s claim to plain-error review, we review his
sentence for abuse of discretion because the district court failed to ask the parties at the close of
sentencing “whether they ha[d] any objections to the sentence just pronounced that ha[d] not
-30-
Case: 14-1834
Document: 44-1
Filed: 02/01/2016
Page: 31
Nos. 14-1834/14-2313
United States of America v. Alkufi, et al.
previously been raised,” in accordance with United States v. Bostic, 371 F.3d 865 (6th Cir.
2004). See United States v. Batti, 631 F.3d 371, 379 n.2 (6th Cir. 2011).5
Alkufi argues his sentence is procedurally unreasonable because the district court failed
to (1) calculate the Guidelines range, (2) make findings under § 3553(a), and (3) address Alkufi’s
mitigation arguments. The government concedes that Alkufi’s sentence should be vacated and
remanded for resentencing because the district court did not provide a sufficient explanation for
the sentence pursuant to § 3553(a).6
VI.
CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and Aoun’s sentence and
VACATE Alkufi’s sentence and REMAND for resentencing.
5
The district court asked only “And do you have something you’d like to say?” which is
not sufficient to meet the requirement under Bostic. See Batti, 631 F.3d at 379 n.2 (holding that
“[a]nything else concerning sentence?” was insufficient to meet the Bostic requirement).
6
The government does not concede Alkufi’s other two arguments. As the government
notes, Alkufi’s first claim has no merit because the district court did calculate the Guidelines
range by stating that it found the offense level, the criminal history category, and the calculation
from the PSR accurate. Moreover, defense counsel explicitly acknowledged at the sentencing
hearing that the presentence report scored the offenses for Counts Five and Six at 18 to 24
months and said it was “an appropriate scoring of the guideline.” (PID 1177–78.) In his third
argument, Alkufi lists issues he raised at sentencing that the district court failed to consider as
1) severe mental handicap, 2) strong family support, and 3) peripheral role in the offense.
The government contends Alkufi never argued to the district court that he had a peripheral role in
the offense. However, Alkufi argued at sentencing that he was merely present at the house
during the search. Thus, we do not agree that Alkufi failed to raise this challenge at sentencing.
-31-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?