United States v. Al Sabahi, No. 12-4363 (4th Cir. 2013)
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Defendant appealed his conviction for three counts of knowingly possessing firearms while illegally and unlawfully present in the United States. The court affirmed the judgment, concluding that defendant was illegally or unlawfully in the United States at the time he possessed the firearms in question; there was no Sixth Amendment violation where defendant had given no reason why excluding a government witness's testimony regarding defendant's pending I-485 application and participation in the National Security Entry-Exit Registration System violated his confrontation right and where he was permitted to cross-examine the witness; and the evidence was sufficient to support the verdict in this case.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4363 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ABDULADHIM AHMED AL SABAHI, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, Chief District Judge. (4:11-cr-00056-D-1) Argued: March 22, 2013 Decided: June 12, 2013 Before SHEDD and FLOYD, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation. Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Shedd and Judge Goodwin joined. ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. FLOYD, Circuit Judge: On October 25, 2011, Appellant Abduladhim Ahmed Al Sabahi was charged knowingly present in a possessing in the four-count firearms United while States, §§ 922(g)(5)(A) and 924(a)(2). three counts. superseding in indictment illegally and violation of with unlawfully 18 U.S.C. A jury found Al Sabahi guilty of Al Sabahi appealed, alleging that he was not illegally or unlawfully present in the United States, that the district court committed a Confrontation Clause violation, and that the evidence was insufficient to support his conviction. We now affirm. I. A. On November 12, 1997, Al Sabahi a native of Yemen entered the United States using a visa that expired in May 1998. Sabahi remained in the United States after without obtaining authorization to do so. Al Sabahi voluntarily registered with his visa Al expired On January 10, 2003, the National Security Entry-Exit Registration System (NSEERS), a War on Terror-related program pursuant to which non-immigrant men of certain ages and from certain interviewed. countries were fingerprinted, photographed, and Immigrations and Customs Enforcement then placed Al Sabahi in removal proceedings because he had overstayed his 2 visa. In citizen, August and he 2003, Al Sabahi thereafter filed married an a I-485 United States application to legalize his presence in the United States. At the time of the events relevant to this case, Al Sabahi worked at Scooters In and Out convenience store in Littleton, North Carolina. On February 15, 2007, a Pepsi employee named Jonathan Mosley came to Scooters to remove a Pepsi cooler. Sabahi placed a .9-millimeter during Mosley s visit. pistol on the store s Al counter According to Mosley, Al Sabahi told him that he could not take the cooler. Mosley then left the store and Ferguson. called his supervisor, Donald When Ferguson arrived, he saw the gun and realized that Al Sabahi was not going to release the cooler. Ferguson then called Mike Suggs, the chief of the Littleton Police Department. Suggs did not see the gun when he arrived, but he had seen it on prior occasions. Suggs told Al Sabahi to keep the gun under the store s counter. On March 18, 2007, Suggs and other officers were conducting a traffic checkpoint. Officer Shane Jenkins stopped Al Sabahi, who was driving a gold Toyota Camry. Although Ali Saleh the owner of Scooters owned the car, Al Sabahi frequently borrowed it. Suggs looked down at the car s floorboard and saw part of a pistol grip. and then He asked Jenkins to remove Al Sabahi from the car retrieved a .9-millimeter pistol from the vehicle. Suggs was familiar with the pistol and was aware that Al Sabahi 3 sometimes carried it in the vehicle. Suggs instructed Jenkins to charge Al Sabahi with carrying a concealed weapon. On May 9, 2007, Ronald Lee came to Scooters to sell a .380caliber handgun to Saleh. so Al Sabahi firearm. took cash Saleh was not present at the store, from the register and purchased Lee prepared a receipt in Al Sabahi s name. the When Saleh found out that Al Sabahi had bought the gun, he contacted Lee and told him that Al Sabahi was an illegal alien and should not have purchased a firearm. Lee later met with Saleh and prepared a new receipt that named Saleh as the purchaser. Saleh testified that, on September 7, 2007, he went home and found Al Sabahi drunk, carrying the .380-caliber handgun, and claiming that it belonged to him. the firearm, and Saleh reported Al Sabahi then left with the theft to the police. Jenkins later retrieved the gun from one of Saleh s relatives. B. On May 24, 2011, Al Sabahi was charged 18 U.S.C. §§ a two-count indictment with 924(a)(2). These provisions make it a crime for an alien . . . illegally or violating in unlawfully in the United 922(g)(5)(A) States to and knowingly possess in or affecting commerce, any firearm or ammunition. 18 U.S.C. § 922(g)(5)(A); see also id. § 924(a)(2) (subjecting individuals who knowingly violate § 922(g)(5)(A) to a fine and 4 up to ten years imprisonment). Al Sabahi moved to dismiss the indictment on August 12, 2011, arguing that he was not illegally or unlawfully in the United States because he registered with NSEERS and had filed an I-485 application for an adjustment of his status. judge had Al Sabahi also contended that only an immigration jurisdiction present in the United removal proceedings. to determine States The whether because district he had court he was been denied legally placed Al in Sabahi s motion to dismiss. On October 25, 2011, Al Sabahi was charged once again in a four-count superseding indictment §§ 922(g)(5)(A) and 924(a)(2). with violating 18 U.S.C. Count One concerned the February 15, 2007, incident with the .9-millimeter pistol that took place at Scooters; Count 2 related to the March 18, 2007, incident with the same gun that occurred during the traffic stop; Count Three involved the May 9, 2007, incident in which Al Sabahi purchased the .380-caliber handgun; and Count Four concerned the September 7, 2007, incident involving the same gun, which took place at Saleh s residence. Al Sabahi s trial January 25, 2012. 911 telephone Pepsi employee. took place from January 23, 2012, to At trial, Al Sabahi attempted to introduce a call report concerning his encounter with the The district court held that the document did not fall within any exceptions to the rule against hearsay and 5 that, even if it did, the court would exclude it under Federal Rule of Evidence 403. A jury found Al Sabahi guilty on Counts One, Two, and Three and not guilty on Count Four. The district court sentenced Al Sabahi to twenty-seven months imprisonment on each count, to be served concurrently. Al Sabahi filed a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. We turn first to Al Sabahi s argument that the district court should not have found that he was illegally or unlawfully present in the United States. We review de novo the district court s ruling on Al Sabahi s motion to dismiss the indictment. United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). A. Federal regulations recognize that [a]lien[s] illegally or unlawfully in the United States include nonimmigrant[s] . . . whose authorized § 478.11. period of stay has expired. 27 C.F.R. As a general matter, an alien who is only permitted to remain in the United States for the duration of his or her status . . . becomes illegally or unlawfully in the United States for purposes of § 922(g)(5)(A) upon commission of a status violation. We look to the date of the status violation to determine when the alien s presence 6 became unauthorized, not to when recognized by official decree. that violation is United States v. Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004) (footnote omitted); see also United States v. Latu, 479 F.3d 1153, 1159 (9th Cir. 2007); United States v. Bazargan, 992 F.2d 844, 847-48 (8th Cir. 1993). Furthermore, an alien who has acquired unlawful or illegal status (either by overstaying a visa or parole) illegally cannot application for crossing relinquish adjustment the border that of without illegal status is admission status until approved. States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006). or his United Al Sabahi remained in the United States after his visa expired, and his request for Therefore, adjustment under these of status general has not principles, been Al approved. Sabahi was illegally or unlawfully in the United States at the time he possessed the firearms in question. B. Despite these general rules, Al Sabahi makes two arguments that he was not illegally or unlawfully present in the United States under 18 U.S.C. § 922(g)(5)(A). First, he contends that he was in effect paroled via 8 U.S.C. § 1182(d) when he registered through NSEERS. Pursuant to 27 C.F.R. § 478.11, aliens are not illegally or unlawfully in the United States if 7 they are in valid parole status. The U.S. Code provides that the Attorney General may parole aliens into the United States temporarily public for benefit. urgent 8 humanitarian U.S.C. § reasons or 1182(d)(5)(A). In significant this case, however, the Attorney General did not take any action on Al Sabahi s behalf, and Al Sabahi does not identify any urgent humanitarian reasons or warranted his parole. aliens who have not significant public benefit that Furthermore, parole is granted only to yet entered the United States, United States v. Anaya-Acosta, 629 F.3d 1091, 1094 (9th Cir. 2011) (per curiam), and Al Sabahi was already present in the United States when he complied with the Sabahi s argument that he present in the United NSEERS was States not program. Therefore, illegally because he or was Al unlawfully in effect paroled fails. Second, Al Sabahi argues that he was placed in limbo or quasi immigration status when he filed his I-485 application for adjustment of his status. In support of this argument, Al Sabahi cites the Tenth Circuit s decision in United States v. Hernandez, 913 F.2d 1506 (10th Cir. 1990). In Hernandez, the Tenth Circuit held that the district court properly convicted the defendant under § 922(g)(5) because he purchased the gun in question before filing an amnesty application. The court explained in dicta that, 8 [h]ad Id. at 1514. [the defendant] received the pistol after filing his amnesty application, he would not have been illegally in the United States for purposes of § 922(g)(5). Id. Relying on this language, Al Sabahi contends that he was not illegally present in the United States when he possessed the firearms at issue because he had filed his I-485 application. However, although some courts have favorably cited this dicta, see, e.g., United States v. Salman, 266 F. Supp. 2d 1367, 1374 (M.D. Fla. 2003), rev d on other grounds, 378 F.3d 1266 (11th Cir. 2004), this Court has held that the mere filing of an application for adjustment of status and receipt of an employment authorization card does not legalize the alien s presence in the United States, and it is still a crime, under firearm, § 922(g)(5), for that individual to possess a United States v. Cavillo-Rojas, Nos. 10-4033, 10- 4061, 10-4062, 10-4067, 10-4072, 2013 WL 563885, at *10 (4th Cir. Feb. declined 15, to 2013). interpret Furthermore, Hernandez to many allow other the courts result have that Al Sabahi seeks, see Latu, 479 F.3d at 1157-58; Elrawy, 448 F.3d at 313-14 & n.6; Atandi, 376 F.3d at 1192 & n.12, and the Tenth Circuit States itself v. has called Ochoa-Colchado, Hernandez 521 F.3d into 1292, doubt, 1294-95 see United (10th Cir. 2008) ( [T]he greater weight of authority is of the view that the filing of an application for adjustment of status before an alien s possession of firearms 9 does not alter the alien s status. ). illegally Because in the Al United Sabahi s States argument due to that his he I-485 was not application lacks support, the pendency of this application does not alter our conclusion that Al Sabahi was illegally or unlawfully in the United States when he possessed the firearms in question. * C. Next, Al Sabahi contends that the district court erred in allowing this case to proceed without waiting for an immigration judge to decide whether Al Sabahi was removable. support for this proposition, Al Sabahi cites As his only 8 U.S.C. § 1229a(a)(1), which states that [a]n immigration judge shall conduct proceedings for deportability of an alien. deciding the inadmissibility or However, this provision does not divest district courts of the ability to decide whether aliens * Al Sabahi also points to a 1999 Immigration and Naturalization Service memorandum to argue that his I-485 application affects whether he was illegally or unlawfully present in the United States. See Robert L. Bach, Executive Associate Commissioner, INS, Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act (April 14, 1999), available at http://www.section245i.com/info/ins-04-14-99.html. Specifically, Al Sabahi contends that the period of authorized stay continues during the period in which the application is denied and renewed in removal proceedings. However, this memorandum explicitly states that the period of authorized stay applies only with respect to an unrelated provision of the Immigration and Nationality Act. See id. The memorandum consequently has no bearing on the case at hand. 10 are illegally or unlawfully present in the United States for the purposes of 18 U.S.C. § 922(g)(5)(A). Bravo-Muzquiz, whether the 412 F.3d defendant 1052 was (9th See United States v. Cir. unlawfully 2005) present (considering in the United States under § 922(g)(5)(A) even though his removal proceedings remained pending), superseded by statute on other grounds as recognized in Latu, 479 F.3d 1153. Al Sabahi s argument that the district court erred in moving forward with this case before an immigration judge determined his removability therefore lacks merit. III. Al Sabahi next contends that the district court violated his Sixth Amendment confrontation right when it did not allow him to question government witness Thomas D. O Connell about his pending I-485 application and participation in NSEERS. Al Sabahi does not clarify exactly violated his confrontation right. Sabahi s Alaska, attorney 415 U.S. to 308, (1974) the district court The district court allowed Al cross-examine 316 how However, O Connell. ( Our cases See Davis construing v. the ([C]onfrontation) [C]lause hold that a primary interest secured by it is the right of cross-examination. (quoting Douglas v. Alabama, 380 U.S. 415, 418 (1965)) (internal quotation marks omitted)). When Al Sabahi s attorney sought to ask O Connell 11 about Al Sabahi s I-485 application and NSEERS registration, the court declined to permit this questioning on the basis that it was irrelevant. Because Al Sabahi has given no real reason why excluding this testimony violated his confrontation right and because he was permitted to cross-examine O Connell, we decline to find any Sixth Amendment violation. IV. Finally, Al Sabahi contends that the evidence was insufficient to support the jury s verdict in this case. We must uphold a jury verdict if there is substantial evidence, viewed in the light most favorable to the [g]overnment, to support it. United States v. Cardwell, 433 F.3d 378, 390 (4th Cir. Substantial 2005). reasonable finder of evidence fact could is that accept evidence as which adequate a and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Id. (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)). For the reasons below, we find that the evidence was sufficient to support the verdict in this case. 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) knowing possession of firearms or ammunition. actual or constructive. 431, 435 (4th Cir. 2005). criminalize the Possession may be See United States v. Scott, 424 F.3d To establish actual possession, the 12 government must prove that Al Sabahi voluntarily intentionally had physical possession of the firearm. and Id. By contrast, the government can prove constructive possession by showing that Al Sabahi intentionally exercised dominion and control over the firearm, or had the power and the intention to exercise dominion and control over the firearm. Id. at 436. The government can establish constructive possession by direct or circumstantial evidence. Burgos, 94 F.3d at 873. With respect to Count One, the government proved that Al Sabahi actually possessed a .9-millimeter pistol on February 15, 2007, when Pepsi employee Jonathan Mosley attempted to remove a cooler from Scooters. Mosley and his supervisor, Donald Ferguson, both testified that they saw the gun on the counter, and Mosley identified Al Sabahi as the cashier working that day. Police Chief Mike Suggs confirmed that Al Sabahi had been accused of brandishing the pistol and stated that he had seen the weapon on prior occasions. Despite this testimony, Al Sabahi claims that the evidence was insufficient in light of a 911 report that the district court excluded under the rule against hearsay and Federal Rule of Evidence 403. Al Sabahi contends testimony that the 911 report discredits Mosley s because it indicates that Al Sabahi made the 911 call, which he would not have done if he possessed a gun. However, where the evidence supports differing reasonable interpretations, the jury 13 will decide which interpretation to accept. United States v. Moye, In 454 F.3d 390, 394 (4th Cir. 2006). light of the overwhelming evidence that Al Sabahi possessed the .9-millimeter pistol during his confrontation with Mosley, the jury s decision to accept the government s interpretation of the evidence was certainly reasonable, even assuming for the sake of argument that the district Therefore, court considered in erred the in excluding light most the 911 favorable report. to the government, the evidence was sufficient to prove that Al Sabahi possessed the firearm in question on February 15, 2007. Regarding Count Two, the government proved that Al Sabahi constructively possessed a .9-millimeter pistol while he drove a gold Toyota Camry on March 18, 2007. Suggs testified that he knew Al Sabahi sometimes carried the gun while he drove and that he had warned him not to do so. During a traffic stop, Suggs looked inside the vehicle and saw a pistol grip extending from under the car s seat. Suggs recognized the firearm as the gun from government Scooters. The also produced considerable evidence that Al Sabahi typically possessed the gold Camry that he was driving on March 18, although Saleh owned the vehicle. In support of his argument that this evidence was insufficient to support the verdict, Al Sabahi relies on Saleh s cross- examination, during which Saleh stated that Al Sabahi did not know that the gun was in the car and that he did not see Al 14 Sabahi remove the gun from Scooters. However, the fact that Saleh did not see Al Sabahi take the gun does not indicate that Al Sabahi did not remove it without Saleh s knowledge. Furthermore, Saleh s testimony that Al Sabahi did not know the gun was in the vehicle simply contradicts Suggs s statement that Al Sabahi often carried the gun in the car and the testimony that Al Sabahi typically maintained control of the Camry. We must assume that the jury resolved all contradictions in the testimony in favor of the government. Applying this principle, we hold Moye, 454 F.3d at 394. that the evidence was sufficient to find that Al Sabahi possessed the .9-millimeter pistol on March 18, 2007. With respect to Count Three, the government proved that Al Sabahi actually possessed a firearm on May 9, 2007, when he purchased a .380-caliber handgun from Ronald Lee. Lee testified that he went to Scooters to sell the gun to Saleh but that Al Sabahi took cash from the register and purchased the firearm. The government also produced the receipt that Lee had made out to Al Sabahi. Although Al Sabahi correctly points out that other receipts show that Lee sold the firearm to Saleh, Saleh testified that he asked Lee to rewrite the receipt because Al Sabahi was an illegal alien who could not lawfully purchase a gun. Once again, we must favor the jury s interpretation of the evidence as long as that interpretation 15 is reasonable. See Moye, 454 F.3d at 394. Because the jury s conclusion that Al Sabahi possessed the .380-caliber handgun on May 9, 2007, was reasonable, we conclude that the evidence was sufficient to support Al Sabahi s conviction on Count Three. V. For the foregoing reasons, we hold that (1) the district did not err in determining that Al Sabahi was illegally or unlawfully present in the United States; (2) the district court did not commit any Confrontation Clause violation; and (3) substantial evidence supports the jury s verdict in this case. We therefore affirm Al Sabahi s conviction. AFFIRMED 16
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