UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4768
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABDALLAH HUSSEIN FAKIH, a/k/a Abdullah Fakih,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00021-RLV-DCK-4)
Argued: March 23, 2011 Decided: April 19, 2011
Before MOTZ and WYNN, Circuit Judges, and Ronald Lee GILMAN,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, Cecilia Oseguera, Emily
Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Adam Morris, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A jury convicted Abdallah Hussein Fakih of bank robbery and
aiding and abetting the same, in violation of 18 U.S.C.
§§ 2113(a) and 2, and of armed bank robbery and aiding and
abetting the same, in violation of 18 U.S.C. §§ 2113(d) and 2.
The district court sentenced Fakih to a 235-month term of
imprisonment on each count, to be served concurrently, followed
by three years of supervised release. Fakih appeals,
challenging both his convictions and sentence. For the reasons
that follow, we affirm.
I.
On September 26, 2007, Demond Dixon (“Demond”), William
Donald Dixon (“Donnie”), and Anthony Fleetwood robbed the Bank
of America in Denver, North Carolina. Each man, armed with a
gun, entered the premises, held the tellers and customers at
gunpoint, threatened to kill them, robbed the bank, and left.
The police spotted the robbers, who in response ditched the
money and some belongings (including a pair of gloves), and
fled. The three robbers subsequently broke into the house of
Jimmy Woods, forced him at gunpoint into his van, and attempted
to escape. After Mr. Woods somehow jumped out of the van, the
robbers crashed and the police then apprehended them.
3
All three robbers testified to Fakih’s substantial
involvement in the crime. Indeed, all three testified that the
robbery was Fakih’s idea. According to them, Fakih, who in 2007
worked with Demond at a Fuel Pizza Café, proposed to Demond and
his brother, Donnie, that they all rob a bank. Fakih held
himself out as having particularized knowledge of banks,
explaining that his father had worked at a bank.
On the day prior to the robbery, Fakih picked Donnie up at
a Charlotte bus terminal after Donnie rode down from
Philadelphia. Fakih put Donnie up in a hotel room for the
night. At approximately the same time, Demond and his
girlfriend, Eurania Young, picked Fleetwood up in Georgia and
they drove together to North Carolina to join the others.
Fleetwood’s girlfriend, Valnissi Jackson, also met up with the
group.
Shortly before the robbery, Fakih, the Dixon brothers,
Fleetwood, Young, and Jackson met at a BP Mini Mart in Denver,
North Carolina. The Government introduced surveillance video
showing Fakih’s BMW and Jackson’s gray PT Cruiser parked at the
gas station. While there, anticipating the eventual bank
robbery, Fakih said to the group: “Are y’all ready to do this?”
Then, Fakih left the group and went to case the bank. He
entered the bank at 10:51 a.m., fumbled with his wallet for less
than a minute, and then left. The bank tellers, who testified
4
at trial, did not recognize Fakih as a regular customer and did
not speak to him. They viewed his behavior as odd, but did not
regard it as presaging a bank robbery.
After casing the bank, Fakih returned to the group waiting
at the BP Mini Mart and gave the men the “green light” to
proceed with the robbery, specifically noting the lack of a
security guard on the bank’s premises. The plan was for Young
and Jackson to drop off the Dixon brothers and Fleetwood at the
bank, and, after they robbed it, Fakih would pick them up. The
robbery occurred ten minutes after Fakih cased the bank.
As the designated getaway driver, Fakih waited in his car
behind the bank. There, he encountered a police officer who
asked if Fakih had seen anything suspicious; Fakih answered no.
Fakih then drove away and never picked up the robbers, leaving
them without a getaway driver. The three robbers were thus
forced to run away from the bank; after they did so, they broke
into Mr. Woods’s house, Demond then called Fakih, but Fakih
purported to renounce his involvement in the enterprise (“I
don’t know what you’re talking about”) and hung up on Demond.
When the police arrested Fakih, he waived his Miranda
rights and agreed to answer questions related to the incident.
He confirmed many of the facts described above (including his
encounter with the police officer in the bank parking lot during
the robbery) but did not admit to casing the bank or to any
5
other involvement in the robbery. Fakih proceeded to trial on
the two counts of bank robbery and assault in the commission of
a bank robbery. After a two-day trial, a jury deliberated for
forty-minutes and then found Fakih guilty of both crimes. The
district court sentenced Fakih to two 235-month terms of
imprisonment, to run concurrently.
II.
Fakih raises two challenges to his convictions. We reject
both.
A.
First, Fakih contends that the district court should have
granted his motion for a mistrial after the prosecutor drew the
jury’s attention to Fakih’s pre-trial detention.
Fakih premises this challenge on the following questions
that the prosecutor asked Demond Dixon on redirect examination:
Q: Okay. Before that time [i.e. when Demond first
mentioned Fakih to the police], were you ever
housed in the jail with [Fakih]?
A: Yes, I was in Lincoln County with him.
Q: So he was already under arrest.
A: They came and got him, I think, a week after we
got arrested.
Q: So he was physically in jail in Lincoln County
before you even --
6
At this point, defense counsel objected and moved for a
mistrial, which the court denied. Instead, the court offered
the defense a curative instruction, which defense counsel
declined, fearing that it would draw undue attention to Fakih’s
pre-trial custody. Ultimately, the prosecutor promised to avoid
this line of questioning in the future and, in fact, did so.
Fakih now seeks reversal on the ground that the district court
erred in denying his motion for a mistrial.
We review the denial of a motion for mistrial for abuse of
discretion. United States v. Stockton, 349 F.3d 755, 762 (4th
Cir. 2003). To determine abuse of discretion, we consider: (1)
whether the prosecutor’s remarks were improper and (2) whether
the remarks “prejudicially affected defendant’s substantial
rights so as to deprive [him] of a fair trial.” Id. Since we
have previously held that a prosecutor’s questions about a
defendant’s pre-trial custody are “clearly improper,” United
States v. Bennett, 984 F.2d 597, 608 (4th Cir. 1993), we proceed
to evaluate prejudice.
In assessing prejudice, we look to: “(1) the degree to
which the prosecutor’s remarks have a tendency to mislead the
jury and to prejudice the accused; (2) whether the remarks were
isolated or extensive; (3) absent the remarks, the strength of
competent proof introduced to established the guilt of the
accused; and (4) whether the comments were deliberately placed
7
before the jury to divert attention to extraneous matters.” Id.
(quoting United States v. Harrison, 716 F.2d 1050, 1052 (4th
Cir. 1983)).
As to the first prong, the degree of prejudice resulting
from a single remark about a defendant’s custody is “minimal.”
Bennett, 984 F.2d at 608. This is so because “[i]n most trials,
it is apparent that the defendant was arrested for the crime
with which he has been charged. The majority of criminal
prosecutions are initiated by an arrest.” United States v.
Harris, 703 F.2d 508, 512 (11th Cir. 1983).
With respect to the second prong, Fakih concedes that the
improper remarks were not “extensive,” but still contends they
were not isolated. See Appellant’s Br. at 23. He is mistaken.
In Bennett, we considered a remark about pre-trial custody
“isolated” where the “government never raised the matter again
and did not refer to it in closing argument.” 984 F.2d at 608.
This holding compels the conclusion that the improper remarks in
this case were also isolated, especially because the prosecutor
promised not to ask another question about Fakih’s pre-trial
custody and even offered to ask a “final question” to “get away
8
from” the subject. The prosecutor never again mentioned Fakih’s
custody, not even in closing argument. *
As to the third prong, the Government offered overwhelming
evidence to support the charges against Fakih. Specifically, it
offered the following evidence: (1) four witnesses (Demond,
Donnie, Fleetwood, and Young) testified to Fakih’s substantial
involvement in the crime; (2) surveillance footage showed Fakih
at the bank and showed his car at the BP Mini Mart with the car
that dropped the robbers off; (3) phone records showed that
Fakih called Jackson about 50 times; (4) a pair of gloves found
in Fleetwood’s pants matched gloves found in a box in Fakih’s
car; (5) a police officer testified as to his encounter with
Fakih near the bank’s premises at the time of the robbery; and
(6) Fakih himself admitted to authorities his presence at the
scene of the robbery at the time it occurred and his meeting
with the Dixon brothers at the BP Mini Mart.
*
At oral argument, Fakih’s counsel suggested that the
prosecutor elicited an additional reference to Fakih’s pre-trial
custody. The record does not bear this out. When the
prosecutor asked Fleetwood whether he had “any contact with
[Fakih] since the day of the bank robbery,” Fleetwood replied:
“No. They had us in the same pod together, though.” The
prosecutor subsequently clarified his question: “Well, I mean
outside.” Fleetwood responded, “Oh, no, sir.” Fakih failed to
object to Fleetwood’s answer at trial and it is clear that this
remark -- initiated by Fleetwood as an after-thought to his
answer to a proper question from the prosecutor -- was not a
product of the prosecutor’s improper questioning.
9
Finally, as to the fourth prong, the prosecutor did not
deliberately attempt to divert attention to extraneous matters.
Rather, the prosecutor sought to rebut the defense’s cross-
examination by suggesting that Demond may have fabricated his
story together with Fleetwood and his brother Donnie. Thus,
this prong also weighs in favor of the Government.
Accordingly, the district court did not abuse its
discretion when it denied Fakih’s motion for a mistrial.
B.
Fakih’s second challenge to his conviction rests on the
contention that the district court plainly erred in permitting
the prosecutor to mention the box of gloves found in Fakih’s car
without admitting the box into evidence.
At oral argument, however, the Government alerted us to an
exhibit list showing that the prosecutor had admitted as exhibit
nine a “box of blue latex gloves” found in Fakih’s car on the
second day of trial. Thus, Fakih’s argument rests on a factual
premise -- that the prosecutor failed to admit the box of gloves
into evidence -- that was proven false.
Moreover, even if the prosecution had failed to introduce
the box of gloves into evidence, Fakih’s argument would fail.
The officer who searched Fakih’s car testified that he found a
box of rubber gloves in the trunk, and Fleetwood testified that
he obtained the gloves from the inside of Fakih’s car. It is
10
not error for a prosecutor to refer to evidence (including a box
of gloves) in closing argument where witnesses have testified as
to its existence and location.
III.
Fakih next contends that the district court procedurally
erred in sentencing him. He argues that the court erred in two
respects.
A.
The Presentence Report (PSR) states that Donnie Dixon told
authorities “Fakih had two guns, a 9 mm and a .45 Ruger, and
that he gave them to Demond” Dixon before the robbery. At
sentencing, the district court relied on this fact, as supported
by the PSR, to find that it was reasonably foreseeable to Fakih
that the robbers, in attempting to escape, would injure, abduct,
and carjack Mr. Woods.
Fakih now asserts that the district court procedurally
erred by crediting the finding that Fakih “armed” the robbers in
the PSR. He cites our holding in United States v. Carter that,
“[p]rocedural errors include . . . selecting a sentence based on
clearly erroneous facts.” 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). He
contends that the finding that he armed the robbers was clearly
11
erroneous because no evidence at trial supported it. The
argument fails.
Fakih did not offer any evidence to rebut the finding in
the PSR. Instead, he objected, in very general terms, to “those
paragraphs that do not comport with the evidence at trial.” A
“mere objection to the finding in a presentence report is not
sufficient.” United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990). Rather, the “defendant has an affirmative duty to
make a showing that the information in the presentence report is
unreliable, and articulate the reasons why the facts contained
therein are untrue or inaccurate.” Id.
Here, Fakih lodged a “mere objection” and failed to rebut
this finding at sentencing with evidence of its unreliability or
inaccuracy. Accordingly, we cannot conclude that the sentencing
court’s finding is clearly erroneous. Moreover, even though
evidence at trial did not show that Fakih armed the robbers, the
absence of evidence at trial does not in itself establish that
Fakih did not arm them. Because Fakih was silent as to the
accuracy of this finding (which was based on the PSR) at
sentencing, the district court could accept it as undisputed.
See United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir.
2006) (where defendant is silent on a specific fact supported in
the PSR, such fact is undisputed).
12
B.
Finally, Fakih contends that the district court
procedurally erred by enhancing his sentence by two points for
the carjacking of Mr. Woods. See U.S.S.G. § 2B3.1(b)(5).
Of course, the sentencing judge may enhance a defendant’s
sentence for “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B). Fakih does not dispute
that “others” carjacked Mr. Woods “in furtherance of the jointly
undertaken criminal activity.” Thus, Fakih’s argument rests on
whether the carjacking was “reasonably foreseeable” to him.
At sentencing, the district court explained its rationale
for finding that the carjacking was reasonably foreseeable to
Fakih as follows:
The acts that occurred in relation to the getaway were
completely foreseeable and exactly what you would
expect of people trying to flee a bank with money.
And to the extent they became involved in a
carjacking, it may be that the defendant’s failure to
show up to take them away from the scene at the bank
might have contributed to that, but that would be
speculation. The fact is that their activities were
directly foreseeable to someone who fostered, set up,
aided and abetted and participated in a robbery by
bringing together the various participants, seeing to
its they were delivered to the scene and arming them.
We review a “reasonable foreseeability” determination for
clear error. United States v. Banks, 10 F.3d 1044, 1057 (4th
Cir. 1993). Fakih contends that it was clear error for the
13
court to rely on “unsupported assumptions about bank robberies
in general, as opposed to relying on the particulars of this
case.” Appellant’s Br. at 32.
Fakih bases his argument on a single case, United States v.
Atwater, 272 F.3d 511 (7th Cir. 2001). There, the Seventh
Circuit vacated a sentence where the district court rested a
reasonable-foreseeability finding solely on a false intuition:
“I have never heard of a bank robbery without a firearm.” Id.
at 512. In vacating the sentence, the court reasoned that, in
fact, many bank robberies occur without a firearm and the
district court needed to rely on something particular about the
bank robbery in question to support its reasonable-
foreseeability finding. Id.
Fakih’s case is a far cry from Atwater. Here, the district
court supported the reasonable-foreseeability finding based on
the particular circumstances of Fakih’s involvement in this bank
robbery, not bank robberies in general. Thus, the court found
that Fakih “set up” and “fostered” the bank robbery as well as
“delivered” and “armed” the other bank robbers. We see no
“unsupported assumptions about bank robberies” from the
sentencing judge’s particularized assessment of Fakih’s
orchestration of the robbery and participation in it. Moreover,
since Atwater, the Seventh Circuit has upheld a reasonable-
foreseeability finding of a co-defendant’s carjacking where the
14
district court relied on the defendant’s substantial involvement
in the conspiracy. See United States v. Williams, 553 F.3d
1073, 1082 (7th Cir. 2009). This case is much closer to
Williams than to Atwater. Accordingly, we reject Fakih’s
challenges to his sentence.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
15