NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0352n.06
No. 20-6194
FILED
UNITED STATES COURT OF APPEALS Jul 20, 2021
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
ON APPEAL FROM THE
Plaintiff-Appellee, )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
v. )
DISTRICT OF KENTUCKY
)
FNU JOHN SADIQULLAH, )
)
Defendant-Appellant. )
)
BEFORE: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Following a jury trial, Fnu “John” Sadiqullah was
convicted of two conspiracy counts: conspiracy to commit murder for hire, in violation of
18 U.S.C. § 1958, and conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c). On
appeal, Sadiqullah primarily argues that those convictions were not supported by sufficient
evidence. He also alleges an instructional error and a sentencing disparity. As none of
Sadiqullah’s challenges have merit, we affirm.
BACKGROUND
Sadiqullah immigrated to the United States from Afghanistan. Taking up residence in
Lexington, Kentucky, Sadiqullah began driving a taxi for a company operated by Lahoucine
Elkohli. Sadiqullah later recruited several other men, also natives of Afghanistan, to work as
drivers for Elkohli.
No. 20-6194, United States v. Sadiqullah
Elkohli frequently borrowed money from his drivers, sometimes framing the loans as
investment opportunities. And sometimes, Elkohli did not repay those loans. Having failed to
secure full repayment from Elkohli on his own accord—as Elkohli recently relocated to Florida—
Sadiqullah turned to Mahmoud Shalash, a local imam with a reputation for helping members of
the Islamic community with their financial issues. Sadiqullah conveyed to Shalash that Elkohli
owed him money and that he would “kill [Elkohli] if [he] [got] ahold of him.”
As luck (in this case, bad luck) would have it, while Sadiqullah was in contact with Shalash,
the FBI was investigating Shalash for money laundering. To further its investigation of Shalash,
the FBI had elicited the participation of “Thomas Smith,” an undisclosed FBI informant who
engaged in a number of recorded transactions and meetings with Shalash. Initially, the scope of
Shalash and Smith’s relationship was limited to money laundering. Shalash, however, later
inquired into Smith’s propensity to engage in other criminal matters. Shalash explained to Smith
that he had previously loaned a friend money to open a restaurant but had not been repaid. Shalash
asked whether Smith could help him collect on the loan, indicating that he did not care if the
collection efforts resulted in his friend’s death. Smith expressed his willingness to help Shalash
get repaid, even through means of violence, if necessary.
From these discussions, Shalash believed that Smith could also help Sadiqullah collect
what he was owed from Elkohli. On April 30, Shalash met Smith at a motel in Lexington. The
meeting was recorded. Shalash told Smith about the money Elkohli owed the taxi drivers, and that
“[i]f [the drivers] get ahold of [Elkohli],” who had relocated to Florida, “they’ll kill him.” Shalash
then called Sadiqullah and asked him to come to the motel, relaying that he had a “brother up here”
who could help. Upon his arrival, Sadiqullah reiterated to Smith that Elkohli owed him (and
others) money, but had fled with his family to Florida. Due to some tension with the other drivers,
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Sadiqullah explained, he had not been provided with Elkohli’s new address. Smith suggested that
Shalash sit down with the other drivers and that Sadiqullah smooth things over in an effort to
obtain Elkohli’s address. Once Smith could locate Elkohli, he could begin his collection efforts
by kidnapping and killing Elkohli. Smith explained that he would “take [Elkohli] and do what we
want to do with him until he pays the tab.”
Smith and Sadiqullah continued their conversation, outside of Shalash’s presence:
Smith: Do you care what happens to this guy to get your money
back?
Sadiqullah: No, we don’t care. We want him [to] die.
Smith: You want him dead?
Sadiqullah: Yeah, we want him [to] die, you know, like because he
made us die.
Sadiqullah further explained that Elkohli’s actions hurt the drivers both financially and
emotionally. Sadiqullah elaborated on the hardships he and the others faced, relaying that if, for
example, “someone can kill [Elkohli] for $10,000, we all four will pay someone $10,000.”
When Shalash returned to the conversation, Smith conveyed that once he received
Elkohli’s address, he would travel to Florida to kidnap Elkohli’s wife and daughter in an effort to
force Elkohli to pay. Sadiqullah informed Smith that Elkohli also had a son who lived in
Lexington, and implied that Elkohli’s son would be the most effective target for the kidnapping
because Elkohli “love[s] his son.” Smith responded that he would kidnap the son, beat him, and
then send pictures to Elkohli accompanied by the message that “if we don’t have our money within
two days, you’re going to find body parts of this kid all over the place.” Sadiqullah voiced some
hesitation over the possibility of Elkohli potentially filing kidnapping charges. But Smith and
Shalash reassured Sadiqullah that no such charges would be filed.
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As the conversation was wrapping up, the topic returned to Smith’s compensation. Smith
clarified that his services were “not free” and explained that if he recovered the money, Smith
would be entitled to 25% of those funds. Shalash compared the arrangement to that of a lawyer’s
contingency fee, in that Smith would be paid once he achieved his objectives. Sadiqullah
confirmed that he had Smith’s phone number and stated he would be in touch once he met with
the other drivers.
Sadiqullah’s involvement in the scheme soon escalated. Two days after his meeting with
Smith, Sadiqullah spotted Elkohli in Lexington. Sadiqullah followed him to a tire store Elkohli
operated and alerted the other drivers to meet him there. He also called Smith. Smith testified that
Sadiqullah explained that he had located Elkohli and his son at a tire store and that he and the other
drivers would hold Elkohli until Smith could arrive to “do whatever . . . to get his money.” Smith
told Sadiqullah not to harm Elkohli. Smith then notified the FBI.
At the tire store, the drivers demanded immediate repayment from Elkohli and threatened
to harm both him and his son. Elkohli assured the drivers that he had arranged a meeting with his
bankruptcy attorney to discuss repaying the drivers. Elkohli and his son then left the store. Smith,
as directed by the FBI, contacted Sadiqullah. Sadiqullah informed Smith that Elkohli was no
longer with the drivers and that he did not know Elkohli’s current whereabouts. Sadiqullah also
conveyed that he was content with the scheduled meeting with Elkohli’s attorney and directed
Smith not to act until Sadiqullah had the opportunity to speak with the other drivers.
The FBI placed Elkohli and his son in protective custody, and arrested Shalash, Sadiqullah,
and one of the other drivers. Shalash pleaded guilty to conspiracy to commit kidnapping and
money laundering and was sentenced to 24 months in prison. Sadiqullah took his case to trial.
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No. 20-6194, United States v. Sadiqullah
A jury convicted Sadiqullah of conspiracy to commit murder for hire and conspiracy to commit
kidnapping. The district court sentenced Sadiqullah to 106 months in prison, below his applicable
Guidelines range. The court later denied Sadiqullah’s motion for judgment of acquittal or,
alternatively, a new trial. This timely appeal followed.
ANALYSIS
Sufficiency of the Evidence. Sadiqullah argues that the government failed to present
evidence sufficient to support a conviction for conspiracy to commit murder for hire, see 18 U.S.C.
§ 1958, or conspiracy to commit kidnapping, see 18 U.S.C. § 1201(c). In light of the jury’s verdict,
however, Sadiqullah faces a “very heavy burden” on appeal. United States v. Ledbetter, 929 F.3d
338, 351 (6th Cir. 2019) (citation omitted). After “viewing the evidence in the light most favorable
to the prosecution,” Sadiqullah’s sufficiency challenge fails if “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United States v. Childs,
539 F.3d 552, 558 (6th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
1. To prove a conspiracy to violate the murder-for-hire statute, the government had to
show that: (1) Sadiqullah conspired to use an interstate facility “with intent that a murder be
committed” in consideration for “anything of pecuniary value” to be paid to the killer;
(2) Sadiqullah knowingly and voluntarily joined the conspiracy; and (3) a member of the
conspiracy performed an overt act. See 18 U.S.C. § 1958(a); United States v. Cordero, 973 F.3d
603, 616 (6th Cir. 2020). Sadiqullah first questions the government’s evidence that he entered into
an agreement to commit a murder for hire. An agreement is the hallmark of any conspiracy. To
prove that an agreement existed, the government had to show that two or more parties shared a
mutual intent to carry out the conspiracy’s main objective, here, that Smith would be paid in
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No. 20-6194, United States v. Sadiqullah
exchange for killing Elkohli. See United States v. Amawi, 695 F.3d 457, 476 (6th Cir. 2012)
(noting that “the government need not prove that each defendant knew every detail of” the
conspiracy, only that “each defendant adopted the conspiracy’s main objective”). And the
agreement need not be “formal”; rather, “a tacit or mutual understanding among the parties” will
suffice. Ledbetter, 929 F.3d at 351 (quoting United States v. Gardiner, 463 F.3d 445, 457 (6th
Cir. 2006)).
The government presented sufficient evidence that Sadiqullah and Shalash agreed to hire
Smith to murder Elkohli. Chief among that evidence were the audio recordings of the April 30
meeting between Sadiqullah, Shalash, and Smith. During that meeting, Sadiqullah expressed his
interest in having Smith kill Elkohli, with Smith to be paid for his services. Sadiqullah repeatedly
stated, “[w]e want [Elkohli] [to] die.” At trial, Shalash explained that he introduced Sadiqullah to
Smith because Sadiqullah expressed a desire to kill Elkohli for failing to repay Sadiqullah, and
because Shalash believed Smith had the means to force repayment. By facilitating the meeting,
Shalash testified that he was forming an agreement with Sadiqullah to hire (and pay) Smith to
kidnap and do “whatever it takes” to retrieve Sadiqullah’s money from Elkohli.
Sadiqullah resists this conclusion on three grounds. One, he says there was no mutual
understanding or shared intent as to whether Smith would commit murder or merely a kidnapping.
True, Shalash testified that he and Sadiqullah formed an agreement for Smith to “kidnap
[Elkohli’s] son,” whereas Smith testified that the agreement was to “kill[] [Elkohli].” But there
was sufficient evidence at trial from which a reasonable jury could conclude that Sadiqullah and
Shalash intended—and agreed—to have Smith commit both crimes: kidnapping and killing
Elkohli. To the extent the testimony conflicts in some respects, we must resolve the conflict in the
government’s favor. See Cordero, 973 F.3d at 614.
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No. 20-6194, United States v. Sadiqullah
Two, Sadiqullah argues that, at most, any agreement existed only between himself and
Smith, demonstrating a fundamental flaw in the government’s evidence in that a conspiracy cannot
exist based solely on an agreement between a defendant and a government informant. See id. at
617; United States v. Deitz, 577 F.3d 672, 681 (6th Cir. 2009). Even so, evidence of Sadiqullah’s
conversations with Smith could be used to establish the existence of a conspiracy between
Sadiqullah and others. Cordero, 973 F.3d at 617. And here, recordings of the April 30 meeting
could support the conclusion that Sadiqullah and Shalash intended to hire Smith for the purpose
of obtaining Sadiqullah’s money from Elkohli and ultimately killing Elkohli. That the government
voluntarily dismissed Shalash’s charge for conspiracy to commit murder for hire as part of a plea
agreement to avoid trial does not foreclose the jury from finding Sadiqullah guilty of that charge
at trial. Cf. United States v. Crayton, 357 F.3d 560, 565 (6th Cir. 2004) (noting that even the
“acquittal of all but one co-conspirator . . . does not necessarily indicate that the jury found no
agreement to act”).
Finally, Sadiqullah asserts that he did not intend or agree to pay anything of pecuniary
value to Smith in exchange for killing Elkohli, a required element of a murder-for-hire offense.
See 18 U.S.C. § 1958. But the record includes sufficient evidence for the jury to have concluded
otherwise. For instance, Sadiqullah stated in a recorded conversation that he (and the other drivers)
would be willing to pay $10,000 to have Elkohli killed: “If someone can kill him for $10,000, we
all four will pay someone $10,000.” Likewise, Sadiqullah, Shalash, and Smith discussed a 25%
fee Smith would be entitled to should he recover Sadiqullah’s money from Elkohli. During that
conversation, Smith explained that “if we collect, 200,000 of your money, we’re taking 25%. It’s
just the way it is.” Shalash clarified that Smith would be paid only after Smith succeeded in
carrying out the agreed-upon plan (which, as already noted, would likely result in Elkohli’s
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murder). Especially as Smith had no personal stake in Elkohli’s death other than in a murder-for-
hire context, it was not unreasonable for the jury to infer that Sadiqullah and Shalash intended to
pay Smith for carrying out the plan. To be sure, the agreement could have been more explicit. But
even vague statements in that regard can be sufficient to uphold a murder-for-hire conspiracy. See
Cordero, 973 F.3d at 614–15 (holding statements that the killer would “receive ‘probably more’
than $20,000” and that he would not “‘do it for peanuts’” were sufficient to satisfy the pecuniary-
value element); United States v. Moonda, 347 F. App’x 192, 199 (6th Cir. 2009) (holding the
alleged hit man’s trial testimony regarding a defendant’s intent to pay him was sufficient to satisfy
the pecuniary-value element). All told, these statements, when considered together, and when
viewed in the light most favorable to the government, provide evidence from which a jury could
fairly conclude that Sadiqullah and Shalash promised to pay Smith something of pecuniary value
should Smith succeed in murdering Elkohli. See Cordero, 973 F.3d at 614–15.
2. The evidence was likewise sufficient for the jury to convict Sadiqullah of conspiracy to
commit kidnapping in violation of 18 U.S.C. § 1201(c). To convict Sadiqullah of that offense, the
government was required to show that: (1) Sadiqullah had an agreement to kidnap, abduct, seize,
or confine another person for ransom, reward, or other benefit, involving travel in or the use of an
instrumentality of interstate commerce; (2) Sadiqullah knowingly and voluntarily joined the
conspiracy; and (3) a member of the conspiracy performed an overt act. 18 U.S.C. § 1201(c);
United States v. Small, 988 F.3d 241, 252 (6th Cir. 2021). At trial, the government presented
evidence that Sadiqullah and Shalash formed an agreement during the April 30 meeting to have
Smith kidnap Elkohli or his son. An audio recording of the meeting revealed that, at multiple
points, Sadiqullah not only agreed with the plan to have Smith commit a kidnapping, but also
contributed to the plan by offering Elkohli’s son as a potential target.
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Sadiqullah challenges the sufficiency of the government’s evidence in two respects. First,
he contends that any purported agreement was conditioned on the participation of the other drivers.
True, at one point, Sadiqullah did relay to Smith that he must speak with the other drivers prior to
Smith taking action. Sadiqullah now argues that he understood this instruction to mean that he
would contact Smith only if the other drivers agreed to the plan. That interpretation, while perhaps
plausible, is undermined by the fact that at no point did Sadiqullah or Shalash expressly condition
the existence of their conspiracy on the participation of the others. And Sadiqullah’s interpretation
likewise is at odds with Shalash’s trial testimony. Shalash testified that he and Sadiqullah were
set to speak with the drivers to discuss (1) obtaining Elkohli’s address and (2) providing each
driver with the opportunity to join the (already formed) conspiracy. Shalash further clarified that
should a driver not agree to join, nothing of consequence would occur to the conspiracy as Shalash
and Sadiqullah’s agreement would remain intact. Thus, when read in the light most favorable to
the government, these statements allowed a jury fairly to conclude that Sadiqullah and Shalash
agreed to recruit the other drivers into the existing conspiracy, rather than condition the agreement
on their joining.
Second, Sadiqullah argues that his words and actions upon confronting Elkohli at the tire
store undermine the existence of an agreement to commit kidnapping. After he and the drivers
confronted Elkohli and Elkohli in turn agreed to arrange a meeting with his bankruptcy attorney,
Sadiqullah says he demonstrated his disinterest in Smith’s assistance. True, in subsequent calls,
Sadiqullah both refused to provide Smith with either Elkohli’s or his son’s address and told Smith
to not take any action until Sadiqullah had discussed the plan with the drivers. Those expressions,
however, were seemingly too little and too late, considering that they occurred only after
Sadiqullah (1) formed a conspiratorial agreement on April 30, and (2) acted on that agreement by
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No. 20-6194, United States v. Sadiqullah
calling Smith to explain that he had “captured” Elkohli and to ask Smith to “come and get him.”
In other words, because there is sufficient evidence in the record to show that Sadiqullah formed
a conspiracy, Sadiqullah’s later actions cannot function to undermine or negate that already
existing conspiracy. At best, this evidence could cast some doubt on Sadiqullah’s intent to form a
conspiratorial agreement, but “[a]ll conflicts in the testimony are resolved in favor of the
government, and every reasonable inference is drawn in its favor.” United States v. Vasquez, 560
F.3d 461, 469 (6th Cir. 2009). To the extent those statements could be characterized as an effort
to abandon or withdraw from the conspiracy, Sadiqullah did not raise that affirmative defense in
the district court. See Smith v. United States, 568 U.S. 106, 110–11 (2013) (noting the burden of
proving withdrawal from a conspiracy falls on the defendant). Nor, at all events, has he
demonstrated that he took an affirmative action to “disavow or defeat the purpose” of the
conspiracy, id. at 113 (quotations omitted), as opposed to “[m]ere cessation of activity,” which is
not sufficient to establish withdrawal, United States v. Bucio, --- F. App’x ---, 2021 WL 2030077,
at *4 (6th Cir. May 21, 2021) (quoting United States v. Lash, 937 F.2d 1077, 1083 (6th Cir. 1991)).
Sadiqullah and Shalash formed an agreement by which Smith would kidnap Elkohli (or his son);
any subsequent statements at most reflect Sadiqullah ceasing his earlier activity, not a formal
withdrawal from the conspiracy. See Smith, 568 U.S. at 112–13.
Entrapment Instruction. Sadiqullah next claims that the district court erred in denying his
request that the jury be instructed on the affirmative defense of entrapment. We review the district
court’s determination for an abuse of discretion. United States v. Anderson, 605 F.3d 404, 411
(6th Cir. 2010). A district court abuses its discretion in this setting when it fails to give an
instruction that is “(1) a correct statement of the law, (2) not substantially covered by the charge
actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to
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give it substantially impairs the defendant’s defense.” United States v. Theunick, 651 F.3d 578,
589 (6th Cir. 2011) (quoting United States v. Franklin, 415 F.3d 537, 553 (6th Cir. 2005)).
To be entitled to an entrapment instruction, Sadiqullah had to present evidence of
“(1) government inducement of the crime, and (2) a lack of predisposition on the part of the
defendant to engage in the criminal conduct.” United States v. Demmler, 655 F.3d 451, 456 (6th
Cir. 2011) (brackets omitted) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). As to
the first prong, government inducement requires “something more than merely affording an
opportunity or facilities for the commission of the crime,” United States v. Poulsen, 655 F.3d 492,
502 (6th Cir. 2011) (quotations omitted), such as the government exerting excessive pressure upon
the defendant or taking advantage of the defendant’s alternative, non-criminal motive, see United
States v. Sutton, 769 F. App’x 289, 297 (6th Cir. 2019). We disagree with Sadiqullah that Smith’s
suggestion that he kidnap Elkohli is evidence of government inducement. See United States v.
Summers, 238 F. App’x 74, 76 (6th Cir. 2007) (“Government agents do not entrap by merely
presenting the opportunity to engage in criminal activity.”). Even if Smith first suggested a
kidnapping, to show entrapment, Sadiqullah must also show some manner of pressure or
persuasion by the government. See Sutton, 769 F. App’x at 298. None exists here. Far from the
government exerting excessive pressure or persistent persuasion, it was Sadiqullah, in fact, who
followed up on Smith’s suggestion with one of his own: that Smith kidnap Elkohli’s son.
All told, because Sadiqullah failed to present sufficient evidence of entrapment, the district
court did not abuse its discretion in denying his request for a jury instruction. See Poulsen, 655
F.3d at 503 (holding that when there is “no government inducement, we not examine the issue of
predisposition”).
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Sentencing Disparity. Finally, Sadiqullah argues that he was improperly sentenced to a
disproportionate term of imprisonment. We review the district court’s sentencing decision for an
abuse of discretion. United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008). And we presume
that sentences within the Guidelines range are reasonable. See United States v. Pirosko, 787 F.3d
358, 374 (6th Cir. 2015). Moreover, “a defendant attacking the substantive reasonableness of a
below-guidelines sentence has an even heavier burden to overcome.” United States v. Elmore,
743 F.3d 1068, 1076 (6th Cir. 2014).
As grounds for establishing a sentencing disparity, Sadiqullah contrasts his 106-month
sentence with the 24-month sentence imposed upon Shalash. According to Sadiqullah, that
variation runs afoul of 18 U.S.C. § 3553(a)(6)’s command that a sentencing judge “avoid
unwarranted sentence disparities.” Section 3553(a)(6), however, “is not concerned with disparities
between one individual’s sentence and another individual’s sentence, despite the fact that the two
are co-defendants.” United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). Rather, by its
terms, § 3553(a)(6)’s focus is on “defendants with similar records who have been found guilty of
similar conduct,” id., which, in practice, we have understood to counsel against “national
disparities between defendants with similar criminal histories convicted of similar criminal
conduct.” United States v. Wright, 991 F.3d 717, 720 (6th Cir. 2021) (citation omitted). Sadiqullah
has identified no such national disparity. Nor is Shalash similarly situated; unlike Sadiqullah, he
accepted a plea agreement as well as responsibility for his crimes, avoiding a trial.
The district court, it bears adding, imposed a below-Guidelines sentence, stating that it was
“mindful of sentencing disparities” and that it recognized that “similarly situated defendants
should be punished similarly.” So while Sadiqullah disagrees with the district court’s balancing
of the sentencing factors, it is both the case that the court had disparities in mind at sentencing,
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and that the court sentenced Sadiqullah at a level below that set by the Guidelines. No abuse of
discretion occurred.
* * * * *
Sadiqullah also argues that the cumulative effect of the district court’s errors renders his
trial fundamentally fair. But as no error occurred below, we reject that argument, and affirm the
district court’s judgment. See Ledbetter, 929 F.3d at 365.
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