UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AMIR ALI FARAZ,
Defendant - Appellant.
No. 14-4558
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO RODRIGUEZ,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, Senior District
Judge. (8:12-cr-00640-RWT-2; 8:12-cr-00640-RWT-10)
Submitted: September 30, 2015 Decided: October 5, 2015
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland; Joseph J. Gigliotti, Sr., Riverdale, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Deborah
A. Johnston, Leah Jo Bressack, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a joint jury trial with Ricardo Rodriguez, Amir
Ali Faraz was convicted of conspiracy to distribute and possess
with intent to distribute 1 kilogram or more of heroin and 100
kilograms or more of marijuana, in violation of 21 U.S.C. § 846
(2012), two counts of possession with intent to distribute
heroin, in violation of 18 U.S.C. § 2 (2012) and 21 U.S.C. § 841
(2012), four counts of use of a communication facility to
facilitate narcotics trafficking, in violation of 18 U.S.C. § 2
and 21 U.S.C. § 843(b) (2012), and interstate travel with intent
to promote drug trafficking, in violation of 18 U.S.C. § 2 and
18 U.S.C. § 1952 (2012). Faraz was sentenced to a total of 240
months’ imprisonment. Rodriguez was convicted of conspiracy to
distribute and possess with intent to distribute 1 kilogram or
more of heroin and 100 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846, and two counts of use of a
communication facility to facilitate narcotics trafficking, in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 843(b), and was
sentenced to a total of 78 months’ imprisonment.
Faraz and Rodriguez now appeal their convictions, arguing
that the district court reversibly erred in denying their
motions to suppress wiretap evidence. Faraz also challenges the
Government’s cross-examination of him and his 240-month sentence
on the conspiracy count. We affirm.
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We review the factual findings underlying a district
court’s ruling on a motion to suppress for clear error and its
legal conclusions de novo. United States v. Vaughan, 700 F.3d
705, 709 (4th Cir. 2012). Wiretaps should not be routinely
employed, but rather reserved for instances where necessary
because normal investigative techniques would be inadequate to
expose the crime. 18 U.S.C. § 2518(3)(c) (2012); United
States v. Smith, 31 F.3d 1294, 1297-98 (4th Cir. 1994).
The Government bears the burden of showing “necessity”; however,
this burden is not great. Smith, 31 F.3d at 1297.
The Government’s showing should “be tested in a practical and
commonsense fashion that does not hamper unduly the
investigative powers of law enforcement agents.” Id. (internal
quotation marks and citations omitted). We review the district
court’s finding of “necessity” for abuse of discretion. United
States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007).
The Government established necessity through the initial
wiretap application and the applications for extension, which
thoroughly explained how investigators were having difficulty
infiltrating the drug conspiracy, that use of other
investigative techniques on their own would be problematic
because of their limited value in exposing the full scope of the
conspiracy, and that wiretaps combined with other investigative
techniques would likely be effective because suspected members
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of the conspiracy used the target telephones in furtherance of
illicit activities. Considering both the detailed showings made
in the wiretap applications and investigators’ objectives in
attempting to ascertain the full scope of the conspiracy, the
district court’s finding of necessity was not an abuse of
discretion. See United States v. Galloway, 749 F.3d 238, 242-43
(4th Cir.), cert. denied, 135 S. Ct. 215 (2014); Smith, 31 F.3d
at 1297. The district court thus did not reversibly err in
denying Defendants’ motions to suppress.
Next, Faraz argues that the district court erred by
permitting the Government to cross-examine him about the
credibility of other witnesses who testified at trial.
Specifically, he objects to Government questioning regarding
whether or not portions of the testimony given by certain
Government witnesses were inaccurate. He also contends that,
after he described one witness’ testimony as “preposterous” at
trial, it was improper for the Government to ask him whether he
would describe other witnesses’ testimony as “preposterous.”
Faraz did not object in the district court to these lines
of questioning or the admission into evidence of his answers to
them on the basis he now asserts; accordingly, our review is for
plain error only. Henderson v. United States, 133 S. Ct. 1121,
1126-27 (2013). To establish plain error, Faraz must
demonstrate that (1) the district court committed an error; (2)
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the error was plain; and (3) the error affected his substantial
rights. Id. at 1126. A “plain” error is one that is “clear” or
“obvious,” United States v. Olano, 507 U.S. 725, 733 (1993),
under “the settled law of the Supreme Court or this circuit.”
United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)
(internal quotation marks omitted). For purposes of review
under the plain error standard, an error qualifies as plain if
it is a clear or obvious error at the time of appellate review.
Henderson, 133 S. Ct. at 1127-31.
Appellate courts have held that it is not appropriate for
counsel to ask one witness whether another witness is lying
because “[s]uch questions invade the province of the jury and
force a witness to testify as to something he cannot know, i.e.,
whether another is intentionally seeking to mislead the
tribunal.” United States v. Harris, 471 F.3d 507, 511 (3d Cir.
2006) (collecting cases); see United States v. Rivera, 780 F.3d
1084, 1096-97 (1st Cir. 2015) (noting that a prosecutor should
not ask a testifying defendant whether another witness was lying
but that this does not mean that the prosecutor “will be
prohibited from pinning down a defendant’s testimony by focusing
the latter on conflicts between his account of a certain event
and another witness's testimony on that point”).
Here, the overwhelming majority of the cross-examination to
which Faraz objects did not ask him whether other Government
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witnesses were lying or otherwise force Faraz to testify to
matters about which he could not know. Rather than seeking to
invade the jury’s province, the Government’s questions largely
highlighted discrepancies between Faraz’s version of events and
those told by the other Government witnesses.
Nevertheless, in one question, Government counsel asked
Faraz whether two Government witnesses had implicated themselves
by lying at trial. Faraz responded that their testimony was
inaccurate. Even if, however, this single question was
improper, Faraz cannot establish plain error warranting reversal
of his convictions. See United States v. Beasley, 495 F.3d 142,
149 (4th Cir. 2007) (finding no plain error in absence of
controlling precedent); United States v. Bennett, 984 F.2d 597,
608 (4th Cir. 1993) (listing factors relevant to determination
of whether improper remarks were prejudicial).
Finally, Faraz challenges his 240-month sentence on the
conspiracy count, arguing that it violates the Eighth Amendment.
Because Faraz failed to raise a constitutional challenge to his
sentence in the district court, our review is for plain error.
Olano, 507 U.S. at 732-33. Faraz’s 240-month prison term on the
conspiracy count was the minimum prison term required by
statute. 21 U.S.C. §§ 841(b)(1)(A)(i), 851. “Severe, mandatory
penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in various forms
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throughout our Nation’s history.” Harmelin v. Michigan,
501 U.S. 957, 994–95 (1991). Because Faraz fails to establish
the threshold inference that his sentence is grossly
disproportionate under the Eighth Amendment, he fails to
demonstrate any plain error in his sentence.
Accordingly, we affirm the district court’s 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
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