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    This document summarizes an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding the appeals of Abdulmalik Abdulla and Ahmed Mohssen's convictions and sentences for food stamp fraud and wire fraud. The court affirmed the convictions and sentences, finding that: (1) the district court did not abuse its discretion in striking a juror for cause during voir dire; (2) the district court did not err in determining the amount of loss was nearly $1.2 million; and (3) the district court correctly held each defendant responsible for the full loss amount rather than splitting it between them.

    Original Description:

    Filed: 2015-12-03 Precedential Status: Non-Precedential Docket: 14-4868

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    This document summarizes an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding the appeals of Abdulmalik Abdulla and Ahmed Mohssen's convictions and sentences for food stamp fraud and wire fraud. The court affirmed the convictions and sentences, finding that: (1) the district court did not abuse its discretion in striking a juror for cause during voir dire; (2) the district court did not err in determining the amount of loss was nearly $1.2 million; and (3) the district court correctly held each defendant responsible for the full loss amount rather than splitting it between them.

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    Public Domain
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    18 views11 pages

    United States v. Abdulmalik Abdulla, 4th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    This document summarizes an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding the appeals of Abdulmalik Abdulla and Ahmed Mohssen's convictions and sentences for food stamp fraud and wire fraud. The court affirmed the convictions and sentences, finding that: (1) the district court did not abuse its discretion in striking a juror for cause during voir dire; (2) the district court did not err in determining the amount of loss was nearly $1.2 million; and (3) the district court correctly held each defendant responsible for the full loss amount rather than splitting it between them.

    Copyright:

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    of 11

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 14-4868

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    ABDULMALIK ABDULLA,
    Defendant - Appellant.

    No. 14-4877

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    AHMED MOHSSEN,
    Defendant - Appellant.

    Appeals from the United States District Court for the District
    of Maryland, at Baltimore. Richard D. Bennett, District Judge.
    (1:14-cr-00050-RDB-1; 1:14-cr-00050-RDB-2)

    Submitted:

    November 30, 2015

    Before WILKINSON and


    Senior Circuit Judge.

    GREGORY,

    Decided:

    Circuit

    December 3, 2015

    Judges,

    and

    HAMILTON,

    Affirmed by unpublished per curiam opinion.

    Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C., Towson,


    Maryland, Warren E. Gorman, Rockville, Maryland, for Appellants.
    Rod J. Rosenstein, United States Attorney, David I. Sharfstein,
    Leo J. Wise, Assistant United States Attorneys, Baltimore,
    Maryland, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Abdulmalik

    Abdulla

    and

    Ahmed

    Mohssen

    appeal

    their

    convictions and respective 48-month sentences for four counts of


    food stamp fraud, in violation of 7 U.S.C.A. 2024(b)(1) (West
    Supp. 2015), and seven counts of wire fraud, in violation of 18
    U.S.C. 1343 (2012).

    They argue that the district court erred

    in striking a juror for cause, determining that each Defendant


    was responsible for over $1 million in losses, and rejecting
    Mohssens

    request

    for

    minor

    or

    minimal

    role

    adjustment.

    Finding no error, we affirm.


    The Defendants contend that they were denied due process
    under

    the

    Fifth

    Amendment

    when

    the

    district

    Prospective Juror Number 58 (Juror 58) for cause.

    court

    struck

    During voir

    dire follow up questioning, Juror 58 stated that she believed


    that food stamp fraud was an everyday and common occurrence in
    the Baltimore area.

    However, Juror 58 also answered that she

    could be a fair and impartial juror.

    Defendants contend that

    the strike created a jury that was biased in violation of the


    Sixth

    Amendment

    invalid reasons.

    because

    Juror

    58

    was

    excused

    for

    allegedly

    Defendants argue that because Juror 58 stated

    that she had not personally seen food stamps traded for cash,
    she was not closely familiar with anyone who had, and she could
    be a fair and impartial juror, the court abused its discretion
    in striking her for cause.
    3

    We

    review

    district

    court's

    determination

    whether

    to

    remove a juror for cause for an abuse of discretion.

    United

    States v. Hager, 721 F.3d 167, 190 (4th Cir. 2013).

    It is

    well-settled, of course, that an accused is entitled under the


    Sixth Amendment to trial by a jury composed of those who will
    adhere

    to

    the

    law

    and

    fairly

    judge

    the

    evidence.

    United

    States v. Smith, 451 F.3d 209, 219 (4th Cir. 2006).

    The trial

    judge

    to

    is

    best

    impartially.

    situated

    to

    determine

    competency

    serve

    Patton v. Yount, 467 U.S. 1025, 1039 (1984); see

    United States v. Cabrera-Beltran, 660 F.3d 742, 749 (4th Cir.


    2011).
    in

    Thus, the trial judge possesses very broad discretion

    deciding

    whether

    to

    excuse

    juror

    for

    cause.

    Cabrera-Beltran, 660 F.3d at 749.


    This court will recognize an abuse of such discretion and
    will reverse if the court demonstrates a clear disregard for
    the actual bias of an individual venireman.
    Turner,

    389

    F.3d

    111,

    115

    (4th

    Cir.

    United States v.

    2004).

    The

    appellate

    courts role is to determine whether the trial judge [was]


    very

    careful

    impartial,

    to
    and

    see

    that

    permitted

    the

    jury

    sufficient

    obtained

    is

    information

    fair
    to

    and
    come

    forward so that he could exercise his discretion in an informed


    way.

    Id. at 118 (quoting Neal v. United States, 22 F.2d 52, 53

    (4th Cir. 1927)).

    To this end, the court is bound either to

    make or to permit such inquiries to be made as will enable him


    4

    in

    the

    exercise

    of

    his

    discretion

    to

    exclude

    from

    the

    jury

    persons who have formed fixed opinions about the case and are
    not fair and impartial jurors within the contemplation of the
    law.

    Neal, 22 F.2d at 53.

    While the Defendants observations are not wholly lacking


    in

    merit,

    they

    do

    considered

    that

    the

    Government

    or

    the

    not

    entitle

    jurors

    them

    response

    defense.

    Because

    to

    relief.

    could
    the

    cut

    juror

    The

    court

    against
    stated

    the
    that

    trading food stamps for cash is an everyday occurrence and that


    it

    happens

    all

    the

    time,

    she

    could

    presume

    that

    the

    facts

    alleged were true based on her perception that food stamp fraud
    is rampant in Baltimore.

    Juror 58s statements were based on

    her outside sources rather than any evidence received during


    trial.

    The

    strike

    could

    have

    preserved

    the

    Defendants

    due

    process rights because Juror 58s statements could easily have


    led her to believe that the allegations must be true since such
    acts are so frequently done in Baltimore.

    On the other hand,

    the court was also concerned that Juror 58s knowledge of the
    widespread

    food

    likely

    convict

    to

    stamp

    fraud

    because

    may
    food

    have
    stamp

    caused
    fraud

    her

    to

    be

    less

    is

    an

    everyday

    occurrence and potentially not deserving of criminal prosecution


    despite the statutory requirement.
    The district courts decision to strike Juror 58 for cause
    was not an abuse of its wide discretion.
    5

    Although the juror

    stated that she could be fair and impartial, there was a real
    possibility of partiality based on her preconceived impression
    and opinion.

    Further, although the Defendants complain that the

    court violated their due process rights, their counsel did not
    take the opportunity to question Juror 58.

    The trial judge is

    in

    potential

    the

    best

    position

    to

    evaluate

    jurors

    impartiality and credibility based on the jurors answers to


    questions presented.

    Cabrera-Beltran, 660 F.3d at 749.

    We have

    reviewed the record and find that the court did not abuse its
    discretion.
    Next, the Defendants contend that the district court erred
    in determining the amount of loss at sentencing at nearly $1.2
    million.

    They contend that the cost of goods determined by

    expert witness David Rutledge should be reduced because several


    items were left out of the calculation; they, however, do not
    identify these items.

    An increase in the cost of goods sold

    would reduce the amount of the fraudulent funds received.


    Defendants

    also

    do

    not

    address

    the

    district

    The

    courts

    determination that the reduction that they sought would require


    a finding of a 39 percent addition in the cost of goods sold
    also unsupported by the trial evidence or any materials in their
    sentencing memoranda.
    Mohssen also argued that he should be held responsible for
    less than the $1,185,583 loss amount because there were some
    6

    missing invoicesagain with no further specific information


    that would increase the cost of goods.

    Mohssen further contends

    that he should only be responsible for the funds deposited in


    the Wells Fargo account because he was not a signor on the M&T
    account.1
    In

    assessing

    challenge

    to

    the

    district

    courts

    application of the Sentencing Guidelines, we review the district


    courts

    factual

    findings

    conclusions de novo.

    for

    clear

    error

    and

    its

    legal

    United States v. Alvarado Perez, 609 F.3d

    609, 612 (4th Cir. 2010).

    The amount of loss for sentencing

    purposes is the greater of actual loss or intended loss.

    U.S.

    Sentencing Guidelines Manual 2B1.1(b)(1), cmt. n.3(A) (2013).


    When

    calculating

    district
    loss,

    court

    given

    the

    need

    the

    loss
    only

    available

    attributable
    make

    to

    reasonable

    information.

    Miller, 316 F.3d 495, 503 (4th Cir. 2003).


    goods

    and

    loss

    calculation

    methodologies

    defendant,

    estimate

    United

    of

    States

    a
    the
    v.

    Here, the cost of


    were

    thoroughly

    explained by FBI Forensic Accountant, and expert witness, David

    Defendants also briefly alternatively argue that they


    should only be held responsible for the amounts specified in the
    counts in the superseding indictment (resulting in an offense
    level of 7 for $772.04), or that they should split the amount
    deposited in the Wells Fargo because they were each a signor,
    instead of both being responsible for the full amount. For the
    reasons stated below, the district court did not err in
    determining the loss to be over $1,183,000 for each Defendant.

    Rutledge,

    and

    U.S.

    Department

    Stanley Wojtkonski.
    reasoning.
    items

    that

    of

    Agriculture

    Special

    Agent

    These witnesses adequately supported their

    Moreover, the Defendants did not point to specific


    would

    have

    changed

    the

    cost

    of

    goods

    sold

    and

    subsequently the total estimated loss related to the food stamp


    fraud.

    We

    appropriately

    therefore

    conclude

    determined

    that

    that

    the

    the

    district

    estimated

    loss

    court

    from

    the

    Defendants scheme was over $1 million and did not clearly err
    in determining the loss amount.
    The court also did not err in rejecting Mohssens request
    to

    split

    the

    conspiracy

    or

    sentencing

    for

    loss

    between

    scheme
    the

    to

    471,

    498

    (4th

    defraud

    entire

    conspiracy or scheme.
    Cir.

    the

    Defendants.
    can

    be

    foreseeable

    Members

    held
    loss

    of

    responsible
    caused

    by

    a
    at

    the

    See United States v. Bolden, 325 F.3d


    2003)

    (In

    calculating

    fraud

    loss,

    sentencing court must first apply the principles of relevant


    conduct.) (internal quotation marks omitted); United States v.
    Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993) (one participant
    in a multi-participant . . . conspiracy may be held accountable,
    for sentencing purposes, for a greater or lesser [amount] than
    other coparticipants).

    [T]he fraud loss properly attributable

    to a defendant[] must be determined on the basis of (1) the acts


    and omissions committed, aided, abetted, counseled, commanded,
    induced,

    procured,

    or

    willfully
    8

    caused

    by

    defendant;

    and

    (2) in the case of a jointly undertaken criminal activity, all


    reasonably

    foreseeable

    furtherance

    of

    the

    acts

    and

    jointly

    omissions

    undertaken

    of

    criminal

    others

    in

    activity.

    Bolden, 325 F.3d at 499; see USSG 1B1.3(a)(1)(B).


    There was testimony at trial by three witnesses that the
    Defendants

    jointly

    operated

    Sams,

    thus

    the

    Defendants

    quite

    clearly participated in jointly undertaken criminal activity.


    The court did not clearly err in determining that the same loss
    amount should apply to both Defendants.
    Finally, Mohssen argues that the district court erred in
    determining that he did not play a minor or minimal role in the
    fraud.

    See USSG 3B1.2.

    Mohssen contends that he was entitled

    to the offense level reduction because he was not an owner or


    supervisor of Sams, was not listed as an owner on the property
    bill of sale, was not a signor on the M&T account, only received
    a disbursement of $23,592.50 to his personal bank account, and
    did not sign or submit the application to become a food stamp
    retailer.
    A
    role

    district

    in

    the

    courts

    offense

    determination

    is

    reviewed

    regarding

    for

    clear

    defendants

    error.

    United

    States v. Powell, 680 F.3d 350, 358-59 (4th Cir. 2012).

    To

    establish eligibility for a reduced offense level under 3B1.2,


    [t]he defendant bears the burden of proving, by a preponderance
    of

    the

    evidence,

    that

    he

    is

    entitled
    9

    to

    mitigating

    role

    adjustment in sentencing.
    quotation

    marks

    Powell, 680 F.3d at 358-59 (internal

    omitted).

    The

    court

    examines

    whether

    the

    defendants conduct is material or essential to committing the


    offense.

    United States v. Akinkoye, 185 F.3d 192, 202 (4th

    Cir. 1999) (internal quotation marks omitted).


    Mohssen

    was

    certainly

    more

    than

    participant in the food stamp fraud scheme.


    other

    witnesses

    approximately

    testified

    half

    testified

    that

    co-owners

    of

    of

    the

    Mohssen

    Sams.

    that
    time.

    told

    her

    Further,

    minor

    ran

    Mohssens

    although

    minimal

    His girlfriend and

    Mohssen

    that

    or

    he

    the

    store

    girlfriend

    and

    Mohssen

    Abdulla

    also
    were

    attempts

    to

    characterize his financial benefit from the scheme as minimal


    because

    he

    only

    had

    approximately

    $23,000

    disbursed

    to

    his

    personal checking account, he used the Wells Fargo Sams account


    as his own personal piggybank and withdrew funds regularly.
    He also recruited at least one food stamp participant to sell
    his benefits for cash.

    These are not circumstances signifying

    decreased culpability.

    We therefore conclude that the district

    court did not clearly err in determining that Mohssen was not
    entitled to the role in the offense reduction.2

    Defendants briefly argue that their 48-month sentences are


    substantively
    unreasonable
    in
    consideration
    of
    18
    U.S.C.
    3553(a)(2) (2012) because there is no need for deterrence as
    they are subject to deportation after they have served their
    sentences.
    They
    also
    claim
    that
    their
    sentences
    are
    (Continued)
    10

    Accordingly, we affirm the judgments.

    We dispense with oral

    argument because the facts and legal contentions are adequately


    presented in the materials before this court and argument would
    not aid the decisional process.
    AFFIRMED

    substantively unreasonable, without any specific supporting


    argument. As the Defendants sentences are within the properly
    calculated Guidelines range and they have not rebutted the
    presumption that their sentences are reasonable balanced against
    the 18 U.S.C. 3553(a) (2012) factors, we conclude the court
    did not abuse its discretion in imposing the sentences.
    See
    United States v. Louthian, 756 F.3d 295, 306 (4th Cir.)
    (citation omitted) ([A]ny sentence that is within or below a
    properly
    calculated
    Guidelines
    range
    is
    presumptively
    [substantively] reasonable.
    Such a presumption can only be
    rebutted by showing that the sentence is unreasonable when
    measured against the 18 U.S.C. 3553(a) factors.), cert.
    denied, 135 S. Ct. 421 (2014).

    11

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