Case: 15-30461 Document: 00513412086 Page: 1 Date Filed: 03/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30461
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 9, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MOHAMED ADMED HASSAN ABDALLAH OMRAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:14-CR-35-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Mohamed Admed Hassan Abdallah Omran appeals his conviction of two
counts of failure to depart the United States pursuant to an order of removal
for which he was sentenced to six months of imprisonment. See 8 U.S.C.
§1253(a)(1)(C). Omran asserts that the district court violated his right to a
speedy trial by continuing his trial beyond 60 days. See 18 U.S.C. § 3161(c)(1).
The district court’s finding that the interests of justice in providing Omran,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-30461
who was proceeding pro se, more time to prepare his defense outweighed
Omran’s and the public’s interest in a speedy trial tolled the running of the
speedy trial time. See United States v. Dignam, 716 F.3d 915, 920 (5th Cir.
2013); § 3161(h)(7)(A). Because the district court granted Omran’s motions to
enhance his ability to represent himself and made specific findings that the
additional time was necessary for that purpose, the seven-month delay did not
violate the Speedy Trial Act. See Dignam, 716 F.3d at 923. Nor, as Omran
asserts, does the fact that the Government may have benefitted from the delay
as well, change the analysis. See United States v. Rosson, 441 F.2d 242, 246
(5th Cir. 1971).
Additionally, the delay did not implicate Omran’s constitutional right to
a speedy trial under the Sixth Amendment. Barker v. Wingo, 407 U.S. 514,
530 (1972); United States v. Molina-Solorio, 577 F.3d 300, 304 (5th Cir. 2009).
Because the delay was less than a year, no presumption of prejudice applies.
See Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993). Omran’s vague and
conclusory assertions are insufficient to show the extreme prejudice or
willfulness by the prosecution to delay his trial which would require an
examination of the Barker factors. Cowart v. Hargett, 16 F.3d 642, 647 (5th
Cir. 1994). As the district court noted, Omran requested the continuances and
the court specifically granted them to permit Omran time to prepare for trial
despite the difficulty inherent in his detention. See Molina-Solorio, 577 F.3d
at 304.
Omran further challenges the denial of his motions to dismiss the
indictment. In asserting that he lacked the requisite mens rea for the offense,
Omran conflates his reason for obstructing his deportation with his intent to
obstruct the deportation. See 1253(a)(1)(C). Accordingly, he points to nothing
in the record that would lead to “the definite and firm conviction” that the
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district court erred in concluding that he intended to obstruct his departure,
for whatever purpose. United States v. Cordova-Soto, 804 F.3d 714, 718 (5th
Cir. 2015) (citation omitted), cert. filed, No. 15-945 (U.S. Jan. 21, 2016).
Next, Omran challenges the district court’s refusal to subpoena two
former co-workers who Omran states would have testified as to his good
character. Several witnesses testified, however, as to Omran’s efforts to
obstruct the boarding of the flights to Egypt, and the evidence corroborated
that testimony. The character witnesses’ testimony, no matter how favorable,
is unlikely to have changed the verdict in this case, and the district court did
not err in refusing to subpoena the character witnesses. See United States v.
Soape, 169 F.3d 257, 268 (5th Cir. 1999); United States v. Butler, 988 F.2d 537,
540 (5th Cir. 1993). As to Omran’s efforts to subpoena an attorney and a
Federal Bureau of Investigation agent, he fails to show that their proposed
testimony regarding a search following distinct and ultimately dismissed
criminal charges is relevant to his alleged innocence of the conduct charged.
See United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
Omran briefed no argument as to the district court’s denial of his motion
to subpoena documents, and thus has abandoned the issue. See United States
v. Green, 964 F.2d 365, 371 (5th Cir. 1992). Moreover, the district court acted
within its discretion in refusing to admit evidence relevant only to prior and
later-dismissed criminal charges and the search of a residence related to those
charges. See United States v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007). The
elements of the instant offense were that (1) as an alien subject to a final order
of removal, (2) Omran connived, conspired, or took action (3) designed to
prevent or hamper or with the purpose of preventing or hampering his
departure from the United States. See § 1253(a)(1)(C). The prior criminal
charges and search occurred after the final order of removal issued and were
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unrelated to Omran’s actions in hampering boarding the airplane in 2013, the
basis for the instant charges. The evidence of those prior events, therefore,
had no tendency to make more or less probable any fact as to his conduct in
the instant matter. See FED. R. EVID. 401. Additionally, Omran cites no
precedent showing that his pending civil lawsuits related to the prior charges
constitute a defense to the instant failure to depart charge. See United States
v. Waldrip, 981 F.2d 799, 806-07 (5th Cir. 1993). The copy of Omran’s prior
tax return, which he also sought to introduce, is equally irrelevant to his
specific conduct in the instant matter. See FED. R. EVID. 402.
The district court also did not err declining to instruct the jury as Omran
sought. See United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011). The
district court provided a correct jury charge as to Omran’s first proposed
instruction, that the jury could find him not guilty if the Government did not
prove beyond a reasonable doubt the existence of criminal intent. See In re
Winship, 397 U.S. 358, 364 (1970); Wright, 634 F.3d at 775. Further, no
evidence was introduced regarding a duress defense or Omran’s good
character. In the absence of support by the law or the evidence in the record,
Omran was not entitled to the jury charge modifications he sought. See United
States v. Peterson, 101 F.3d 375, 381 (5th Cir. 1996).
The decision of the district court is AFFIRMED. Omran’s motion for the
appointment of counsel to file a reply is DENIED. See, e.g., United States v.
Ogbonna, 184 F.3d 447, 449 & n. 1 (5th Cir. 1999) United States v. Wagner,
158 F.3d 901, 902-03 (5th Cir. 1998).
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