United States v. Ibnawaan Safeeullah, 11th Cir. (2012)
United States v. Ibnawaan Safeeullah, 11th Cir. (2012)
ELEVENTH CIRCUIT
JAN 31, 2012
JOHN LEY
CLERK
Plaintiff - Appellee,
versus
IBNAWAAN SAFEEULLAH,
a.k.a. Antwan Strickland,
a.k.a. Bruce Ogelsby,
a.k.a. Ibnawaau Safeeullah,
a.k.a. Muhammad Safeeullah,
llllllllllllllllllllllllllllllllllllllll
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 31, 2012)
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
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to cause that kind of damage, and that there was no key in the ignition. The two
ATF agents then took Safeeullah to a patrol car and frisked him. They took the
screwdriver from his front pocket and discovered wirecutters in his back pocket
and a pistol in his waistband. Removing those, they arrested Safeeullah.
The ATF agents then asked Safeeullah if he would talk to them, and he said
that he would. They read him the Miranda1 warnings verbatim from a card. He
acknowledged that he understood his rights and said that he was willing to speak
to the agents without an attorney present. Safeeullah did not appear to be impaired
in any way, and the agents did not threaten or intimidate him. Nor did they
promise him anything. The interview lasted between five and ten minutes.
Atlanta police then transported Safeeullah to a mobile command post
where the ATF agents again asked him if he would discuss his case. Safeeullah
said that he would. The agents read him the Miranda warnings from a written
form. He then read the form aloud, acknowledged he understood it, and signed the
waiver. Like before, the agents did not threaten or intimidate him and did not
promise him anything. The interview lasted about twenty minutes. Safeeullah
never requested an attorney.
A federal grand jury indicted Safeeullah on one count of being a felon in
1
See Miranda v. Arizona, 384 U.S. 386, 44445, 86 S.Ct. 1602, 1612 (1966).
3
(2008). It is irrelevant that the search took place before the arrest. See Rawlings
v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564 (1980); United States v.
Goddard, 312 F.3d 1360, 1364 (11th Cir. 2001). Further, under the totality of the
circumstances, we find no evidence that Safeeullahs waiver of his Miranda rights
was involuntary. The motion to suppress was properly denied.
II.
At trial Safeeullah wanted to call Ali Alatif, the driver of the Jeep, to testify,
but Alatif indicated that he would assert his privilege against self-incrimination.
The government did not offer Alatif immunity and Safeeullah did not call him as a
witness. Safeeullah contends that the governments failure to either charge Alatif
with a crime or to grant Alatif immunity deprived Safeeullah of exculpatory
evidence in violation of his Sixth Amendment right to compulsory process, but he
has not shown that Alatif would have provided exculpatory evidence for
Safeeullah if he had testified.
The Government has no duty under the Sixth Amendment or otherwise to
immunize witnesses for the benefit of the defense. The Governments power to
grant immunity is discretionary and the defendants have no right to subject its
decision to judicial review. United States v. Ga. Waste Sys., Inc., 731 F.2d 1580,
1582 (11th Cir. 1984) (internal citations omitted). We have also recognized that
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the government has broad discretion as to whom to prosecute and that the
decision to prosecute is particularly ill-suited to judicial review. United States v.
Shaygan, 652 F.3d 1297, 1314 (11th Cir. 2011). Safeeullah has not established
any violation of his Sixth Amendment or other rights in connection with the
governments treatment of Alatif.
III.
Safeeullah also contends that two jury instructions were erroneous. We
review de novo the legal correctness of a jury instruction while we review the
phrasing of an instruction only for an abuse of discretion. United States v. Lee,
586 F.3d 859, 865 (11th Cir. 2009). But [i]t is a cardinal rule of appellate review
that a party may not challenge as error a ruling or other trial proceeding invited by
that party. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006).
Safeeullah argues the district court should not have instructed the jury on
joint possession because the governments only theory was that the pistol found in
his waistband was in his direct possession. At the jury charge conference, the
district court proposed an instruction that included definitions for sole and joint
possession, and Safeeullah objected. The court then proposed an amendment to
the instruction, and Safeeullah agreed to it. [W]hen a party agrees with a courts
proposed instructions, the doctrine of invited error applies, meaning that review is
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waived even if plain error would result. United States v. Frank, 599 F.3d 1221,
1240 (11th Cir. 2010). If the instruction was wrong, Safeeullah invited the error.
Safeeullah also argues that the district courts instruction on constructive
possession was an incorrect statement of the law and misleading. But the
instruction the district court gave was identical to our pattern jury instruction on
constructive possession, and we have upheld a substantially similar instruction.
See United States v. Hastamorir, 881 F.2d 1551, 1559 (11th Cir. 1989). The
constructive possession instruction was not error.
IV.
Finally, Safeeullah challenges the sentence imposed, contending that he
should not have been sentenced under the ACCA and U.S.S.G. 4B1.4. He
argues that he lacked the required number of predicate offenses because his
previous Georgia conviction for burglary was not a violent felony and his
previous Georgia drug conviction was not a serious drug offense. We review de
novo whether a particular conviction qualifies as a predicate offense under the
ACCA. See United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009)
(serious drug offense); United States v. James, 430 F.3d 1150, 1153 (11th Cir.
2005) (violent felony).
Courts are generally limited to a formal categorical approach when
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that he was convicted of unlawfully entering a public school building with the
intent to commit a theft. Because that crime fits the generic definition of burglary,
see Rainer, 616 F.3d at 121516, it qualifies as a predicate offense.
Similarly, the relevant Georgia drug statute is broader than the ACCA
definition of serious drug offense. Compare Ga. Code Ann. 16-13-30(b), with
18 U.S.C. 924(e)(A). The indictment that led to Safeeullahs Georgia drug
conviction, however, establishes that he was convicted of unlawfully possessing
cocaine with intent to distribute, which falls directly within the statutory definition
of serious drug offense. See 18 U.S.C. 924(e)(A) (including an offense under
State law, involving . . . possessing with intent to manufacture or distribute).
That Safeeullah was only 17 years old at time of the of that earlier offense is
irrelevant. Georgia law allowed an adult adjudication, he was convicted as an
adult, and we look to state law about those matters. See United States v. Cure, 996
F.2d 1136, 113941 (11th Cir. 1993). It follows that Safeeullahs Georgia drug
conviction is a qualifying predicate offense.2
2
Safeeullah also asks us to revisit the minimal nexus test for proving the interstate
commerce element of 18 U.S.C. 922 in light of Justice Thomas dissent from denial of a writ of
certiorari in Alderman v. United States, __U.S. __, 131 S.Ct. 700 (2011). In that dissent, Justice
Thomas suggests that Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969
(1977), is irreconcilable with United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995). But
Lopez did not overrule Scarborough, and we have continued to apply the minimal nexus test
post-Lopez. See, e.g., United States v. Wright, 607 F.3d 708, 71516 (11th Cir. 2010); United
States v. Pritchett, 327 F.3d 1183, 1185 (11th Cir. 2003). If the minimal nexus test is wrong, it is
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AFFIRMED.