United States v. Elias Mohamed

Filing

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 09-2349
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United States of America,
Appellee,
v.
Elias Mohamed,
Appellant.

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* Appeal from the United States
* District Court for the
* Western District of Missouri.
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Submitted: January 15, 2010
Filed: April 13, 2010
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Before GRUENDER and SHEPHERD, Circuit Judges, and LANGE1, District Judge.
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LANGE, District Judge.
Elias Mohamed (“Mohamed”) was convicted of conspiracy to commit mail
fraud in connection with a scheme to obtain fraudulently Missouri commercial
driver’s licenses. Mohamed appeals the denial of his motion to suppress materials
found in his possession during a traffic stop and challenges a verdict director
instruction that included overt acts not specifically alleged in the indictment. For the
reasons set forth below, we affirm.

1

The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, sitting by designation.

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I. Factual Background
On May 25, 2005, at 3:04 a.m., Minnesota State Patrol Corporal Robert Frisby
(“Trooper Frisby”) stopped a car driven by Mohamed for not having an operating light
illuminating his rear license plate. During the initial interaction, Trooper Frisby asked
Mohamed "what he was up to" and "where he was headed." In response, Mohamed
explained that he was driving a borrowed car and returning to Kansas City after
attending a funeral in Minneapolis. Mohamed told Trooper Frisby that the funeral had
occurred earlier in the day, and after taking a nap, he had decided to return to Kansas
City that night. During the conversation, Trooper Frisby noticed that some of the door
panels on the inside of the car were loose, that Mohamed seemed more nervous than
would be considered normal, that his breathing was heavier and deeper, and that his
nervousness “remained elevated or slightly increased the longer the stop went.”
At 3:11 a.m., roughly seven minutes into the traffic stop, Trooper Frisby
completed the warning ticket and told Mohamed he was “good to go.” Trooper Frisby
acknowledged in his testimony that the reason for the stop had been completed.
However, as Mohamed got out of the patrol car, Trooper Frisby asked whether
Mohamed had any drugs, weapons, or money in the car. Mohamed told him “no,” but
was unable to make eye contact and instead looked toward his car. Trooper Frisby
then asked Mohamed for consent to search the car. Mohamed said that he would
prefer not to allow Trooper Frisby to search the car. Trooper Frisby told Mohamed
that he had reasonable suspicion to run a drug dog around the car. Trooper Frisby
testified that his reasonable suspicion arose from the loose panels in the car,
Mohamed’s explanation of his travel purpose, his level of nervousness, and his
inability to sit still or maintain eye contact.
At 3:16 a.m., approximately five minutes after the stop had been completed,
Trooper Frisby began walking the dog around the car. The canine search was
completed within thirty-five seconds. The dog alerted to the car. About twelve
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minutes elapsed between the time Trooper Frisby initially stopped Mohammed’s car
at 3:04 a.m. and the time the dog made the positive identification. Following the
dog’s alert, Trooper Frisby concluded that he now had probable cause to search the
car for controlled substances. Trooper Frisby found marijuana seeds inside the car
and documents pertaining to Missouri commercial driver’s licenses inside the trunk.

On September 20, 2006, Mohamed was charged with conspiracy to commit
mail fraud. In the Overt Acts portion of Count 1 charging conspiracy to commit mail
fraud, paragraph 35 alleged that Mohamed directed students to Ernest White
(“White”), another alleged co-conspirator, knowing White would provide students
with fraudulently obtained Missouri commercial driver’s licenses by and through the
use of the mail.
After he was indicted, Mohamed moved to suppress any evidence obtained
from the May 25, 2005 search of his car, claiming that the search violated his rights
under the Fourth Amendment. The Magistrate Judge2 held a suppression hearing and,
on October 23, 2007, entered a report and recommendation to deny the motion to
suppress, concluding that the continued detention following the completion of the
purpose of the stop was de minimis. On November 9, 2007, the district court3 adopted
the report and recommendation.
At trial, co-conspirator White testified that he helped individuals pass the
Missouri commercial driver's license examination by providing students at South
Central Career Center (“SCCC”), a third-party tester under contract with the State of

2

The HONORABLE JAMES C. ENGLAND, Chief United States Magistrate
Judge for the Western District of Missouri.
3

The HONORABLE GARY A. FENNER, United States District Judge for the
Western District of Missouri.
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Missouri to administer the skills test, with answers to the written portion under the
guise of translation services. White testified that in 2003 he met Osman Abdullahi
(“Abdullahi”). Abdullahi operated a business named “Translation Station,” where he
provided translation services to students taking the written test. He informed White
that he provided answers to the students together with translation services. White
helped students pass the skills portion of the test by bribing one of SCCC’s third-party
testers, Orbin May (“May”), to assure the students passed the driving portion of the
test.
White identified Mohamed as one of Abdullahi’s business associates. White
testified that Mohamed knew about the arrangement between White and May and that
Mohamed continued to send students to White to help them pass the commercial
driver's license skills test. White testified that Mohamed and Abdullahi referred
between 80 and 120 students to White.
The government also provided testimony of Abdu Mohamed Osman
("Osman"). Osman testified that Mohamed sold him a Missouri commercial driver's
license form D3R for $900. Osman identified the D3R found in the trunk of
Mohamed's vehicle by Trooper Frisby as a document that he purchased from
Mohamed to obtain a commercial driver's license. The D3R form which Osman
purchased from Mohamed indicated that he had taken the skills test at SCCC and that
the test was administered by May.
Ahmed Muhidin Sharif (“Sharif”), who received assistance in obtaining his
Missouri commercial driver's license from Abdullahi, testified that he directed a
student to Mohamed to obtain a commercial driver's license. Sharif stated that the
student left with Mohamed and then returned two hours later with a completed
commercial driver's license skills document showing that he had passed the skills test.

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The government introduced records of Mohamed's cell phone use as evidence
of the mail fraud conspiracy. The records showed that the cell phone number that
Mohamed had provided to Trooper Frisby had been used in numerous telephone
contacts with May, White, and Abdullahi during the time of the conspiracy. FBI
Agent Clayton Bye interviewed Mohamed after his arrest and testified that Mohamed
told him that he knew Abdullahi and White. Mohamed denied having translated for
them or possessing any papers that would help a person fraudulently to obtain a
commercial driver's license.
At trial, the district court gave a verdict director instruction, instruction 21.
Paragraph 4 of jury instruction 21 stated that one element that the government must
prove in order for the defendant to be found guilty is that:
“[W]hile the agreement or understanding was in effect, a person or
persons who had joined in the agreement knowingly did one or more of
the following acts for the purpose of carrying out or carrying forward the
agreement or understanding:
a. assisted in providing translation services which actually
fraudulently provided the correct answers to the Missouri CDL written
test in order to allow the student to then take the CDL driving test to
obtain a Missouri CDL;
b. directed persons seeking to obtain CDL licenses to co-defendant
Ernest White, knowing that White would obtain these CDL licenses in
an illegal manner by fraudulent means through his relationship with codefendant Orbin May;
c. with other persons sold outdated versions of the Missouri CDL
driving exam forms without the person purchasing the form actually
having taken the Missouri CDL driving test.”
On January 7, 2009, a jury found Mohamed guilty of conspiracy to commit mail
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fraud. He was sentenced on May 28, 2009, and filed a notice of appeal on June 7,
2009.
II. Standard of Review
With regard to a district court's ruling on a motion to suppress, we review the
findings of fact for clear error and the legal conclusions de novo. United States v.
Pena-Ponce, 588 F.3d 579, 583 (8th Cir. 2009). We review the district court's jury
instructions for an abuse of discretion. United States v. Lewis, 593 F.3d 765, 771 (8th
Cir. 2010). In this review, we must analyze whether the instructions, taken as a
whole, and viewed in light of the evidence and applicable law, fairly and accurately
submitted the issues in the case to the jury. United States v. Rehak, 589 F.3d 965, 972
(8th Cir. 2009); United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000).
III. Discussion
A. Fourth Amendment Issues
Mohamed concedes that Trooper Frisby lawfully stopped his car based on
probable cause. Failing to have his license plate illuminated is a traffic violation,
albeit minor, and therefore establishes probable cause for initially stopping Mohamed.
See United States v. Beck, 140 F.3d 1129, 1133 (8th Cir. 1998); Minn. Stat. § 168.12
(2009). A positive identification by a dog during a canine search following a lawful
stop of a vehicle provides probable cause that drugs are present in the vehicle, thereby
justifying a search of the vehicle. See United States v. Bloomfield, 40 F.3d 910, 919
(8th Cir. 1994) (en banc). Therefore, because the initial stop by Trooper Frisby and
the ultimate search of the vehicle were both lawful, the evidence obtained from the
search will be suppressed only if the continued detention of Mohamed, from the time
the purpose of the stop was completed to the time of the canine search, was
unreasonably extended. See United States v. Rivera, 570 F.3d 1009, 1013 (8th Cir.
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2009) (where truck was stopped for speeding and following too closely, a dog’s alert
provided probable cause to search truck for drugs, and evidence was suppressed only
if the defendant was unlawfully detained when the dog sniff of the car occurred).
Mohamed’s motion to suppress sought to exclude evidence of Missouri
commercial driver’s license forms found in the trunk of his vehicle, arguing that the
search violated his Fourth Amendment rights. Mohamed asserts that Trooper Frisby’s
continued detention and walking the dog around the vehicle after the purpose of the
stop had been completed was primarily for interdicting illegal drugs or to advance the
general interest in crime control. The Fourth Amendment requires individualized
suspicion in order for a seizure to be considered reasonable. Indianapolis v. Edmond,
531 U.S. 32, 37 (2000). Absent individualized suspicion, a seizure is unreasonable
unless it serves a “special need.” Id.
Although a suspicionless seizure of a motorist whose primary purpose was to
detect evidence of ordinary criminal wrongdoing is not permissible under a “special
needs” analysis, the seizure of Mohamed was not suspicionless. Because the seizure
was not at a random checkpoint, but instead arose out of a lawful traffic stop, the
general rule of balancing for reasonableness should be applied. Under United States
v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006); United States v. Martin, 411 F.3d
998, 1002 (8th Cir. 2005); and United States v. $404,905.00, 182 F.3d 643, 649 (8th
Cir. 1999), when a dog sniff occurs after a very short lapse of time from when the
purpose of the traffic stop has been completed, there is a de minimis intrusion, and
therefore, under the general rule of reasonableness, the stop does not violate the
Fourth Amendment.
In order to protect an individual’s interest in liberty, the Fourth Amendment
limits a detention or search conducted subsequent to a lawful traffic stop.
$404,905.00, 182 F.3d at 648. A lawful traffic stop that is extended in order to
execute a canine sniff does not become an unconstitutional seizure where the stop is
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reasonably prolonged and constitutes only de minimis intrusions on a defendant’s
liberty. Alexander, 448 F.3d at 1016; $404,905.00, 182 F.3d at 649. For example,
in Alexander, 448 F.3d at 1017, the canine sniff was a de minimis intrusion when it
occurred four minutes after the completion of a lawful traffic stop. In Martin, 411
F.3d at 1002, a canine sniff that occurred two minutes after the conclusion of the
traffic stop was considered a de minimis intrusion. See also $404,905.00, 182 F.3d
at 649 (canine sniff completed two minutes subsequent to completion of traffic stop
was a de minimis intrusion).
Trooper Frisby completed the canine search within five minutes of concluding
a lawful stop. Trooper Frisby did not unreasonably extend the seizure of Mohamed
by prolonging the seizure by five minutes to conduct a canine search. Although
reasonable suspicion is not required for a canine search to be considered a de minimis
intrusion on a driver’s personal liberty, see Alexander, 448 F.3d at 1016; Martin, 411
F.3d at 1002; $404,905.00, 182 F.3d at 649, it is worth noting that such reasonable
suspicion existed in this case. Trooper Frisby stopped Mohamed for a traffic violation
and then noticed loose door panels inside the vehicle. Mohamed's explanation of why
he was on the road and his demeanor aroused Trooper Frisby's suspicions. Trooper
Frisby noted that Mohamed’s breathing was heavier and deeper than is typical, that
his level of nervousness remained elevated, and that he was unable to maintain eye
contact during certain questions or stay in one position. Thus, the canine sniff did not
unreasonably prolong the stop, and was based on reasonable suspicion anyway to
believe that there might be drugs in Mohamed’s car.
B. Jury Instruction Issue
Mohamed argues that because the verdict director instruction included overt
acts which were not specifically alleged in the indictment, the district court erred and
Mohamed’s conviction should be remanded for a new trial. Mohamed also argues that
jury instruction 21, the verdict director, which was derived from Eighth Circuit Model
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Criminal Jury Instructions § 5.06A, violated due process of law because it did not
require the jury to find that Mohamed personally committed the overt acts in
furtherance of the conspiracy in order to convict him of conspiracy to commit mail
fraud.
Count 1 of the indictment charged that Mohamed and fourteen other individuals
conspired with one another to commit mail fraud. The indictment alleged that
Mohamed committed the overt act of directing students to another co-conspirator,
Ernest White, knowing that he would provide students with fraudulently obtained
commercial driver’s licenses. Although Mohamed argues that the jury instruction
refers to overt acts not pled in the indictment, specifically that he was in possession
and sold D3R documents found in his vehicle, a defendant may be found guilty of
overt acts not charged in the indictment. See United States v. Sdoulam, 398 F.3d 981,
992 (8th Cir. 2005). A variance between the indictment and proof occurs “when the
essential elements of the offense set forth in the indictment are left unaltered but the
evidence offered at trial proves facts materially different from those alleged in the
indictment.” See United States v. Begnaud, 783 F.2d, 144, 147 n.4 (8th Cir. 1986).
In Sdoulam, this Court stated that “the inclusion of some overt acts in an indictment
does not bar proof of other acts, and proof of other acts in furtherance of the same
conspiracy does not constitute a variance.” 398 F.3d at 992. The elements of the
offense for which Mohamed was charged did not change when other overt acts were
proven at trial, and the additional acts contained in the verdict director were not
materially different from the charge in the indictment. Mohamed recognizes that
Sdoulam is on point, but urges the court to overrule Sdoulam on the principle that “a
person ought not to be convicted of an overt act not charged in the Indictment.” This
Court refuses to overrule Sdoulam.
Even if the overt acts were a variance, Mohamed’s conviction still was proper
under the circumstances. The indictment fully and fairly apprised him of the charges
against him, despite the alleged variance, and therefore there was no actual prejudice
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to Mohamed. See Begnaud, 783 F.2d at 148 (defendant suffers no actual prejudice so
long as an indictment fully and fairly apprises the defendant of the charges he must
meet). The indictment charged Mohamed with conspiracy to commit mail fraud by
assisting students to the conspiracy with obtaining licenses fraudulently. Mohamed
was fully and fairly apprised of the charges that were brought against him and was
able to prepare a defense to the conspiracy charge.
The district court instructed the jury that in order to prove mail or wire fraud
conspiracy, the government needed to prove that “while the agreement or
understanding was in effect, a person or persons who had joined the conspiracy did
one or more of the following acts.” Under the federal conspiracy statute, a conspiracy
is committed when two or more persons conspire to commit any offense against the
laws of the United States, and only requires that one or more of the co-conspirators
commit an overt act to further the purposes of the conspiracy. See 18 U.S.C. § 371
(2009). The requisite overt act is satisfied by a single overt act committed by one coconspirator. United States v. Falcone, 311 U.S. 205, 210 (1940). Although Mohamed
argues that such a jury instruction allows for him to be found guilty without him ever
committing an overt act, the government is not required to prove that he committed
an overt act. The government need show that “only one of the conspirators engaged
in one overt act in furtherance of the conspiracy” and that Mohamed was part of the
conspiracy. United States v. Hermes, 847 F.2d 493, 495 (8th Cir. 1988); see also
United States v. Hobson, 686 F.2d 628, 630 (8th Cir. 1982); United States v. Bass, 472
F.2d 207, 213 (8th Cir. 1973). Because the government proved that Mohamed
knowingly joined the conspiracy, the overt act need not be shown to have been
committed by him.
Accordingly, we affirm.
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