UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4704
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MIRWAIS MOHAMADI, a/k/a O, a/k/a Omar,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:09-cr-00179-LO-1)
Argued: October 25, 2011 Decided: January 13, 2012
Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew McGavock Robinson, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant. Ronald Leonard Walutes,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellee. ON BRIEF: Neil H. MacBride, United States
Attorney, Michael P. Ben’Ary, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Mirwais Mohamadi was convicted in early 2010 by a
jury in the Eastern District of Virginia of eight crimes,
including Hobbs Act robberies (18 U.S.C. § 1951), using and
carrying a firearm during and in relation to a crime of violence
(18 U.S.C. § 924(c)(1)), solicitation to commit murder for hire
(18 U.S.C. § 373), murder for hire (18 U.S.C. § 1958), and
witness tampering (18 U.S.C. §§ 1512(b)(1) and (b)(3)). The
district court, in a bench trial conducted contemporaneously
with the jury proceedings, found Mohamadi guilty of a ninth
offense, being a felon in possession of a firearm (18 U.S.C. §
922(g)). On appeal, Mohamadi seeks reversal of his convictions
on the basis of several alleged errors, including improper
joinder of offenses, the prosecution’s use of inadmissible
evidence, a lack of venue for certain charges, and insufficient
proof of the Hobbs Act robberies. As explained below, we reject
Mohamadi’s contentions and affirm.
I.
A.
On Saturday, May 26, 2007, Mohamadi responded to the on-
line advertisement for prostitution services in the District of
Columbia metropolitan area. Mohamadi asked the prostitute, a
Ms. Riley, to travel to the apartment he shared with his
2
girlfriend in Alexandria, Virginia. Riley agreed to perform an
hour-and-a-half of prostitution services for Mohamadi for $500
to $600 in cash. Mohamadi identified himself to Riley as
“Omar,” and their arrangements were agreed to by cell phone. As
a result, Riley left a Rockville, Maryland hotel and travelled
in her rented Infiniti to Mohamadi’s Alexandria apartment, where
she was paid up front in large bills to engage in sexual
activity with Mohamadi. Because Mohamadi wanted to extend their
sexual arrangement, he paid an additional $500 to $600 in cash
to Riley and they drove together in the Infiniti to a bar in the
District of Columbia. Around 2:00 a.m. on May 27, 2007,
Mohamadi asked Riley to drive him from the bar to an ATM near
DuPont Circle so that he could obtain additional cash and
prolong their arrangement. Riley agreed to do so, but Mohamadi
instead forced her to drive to a deserted alley in the District,
held her at gunpoint with a dark pistol, and robbed her of the
day’s cash earnings — totalling about $1600.
Around 2:30 that morning, after his robbery of Ms. Riley,
Mohamadi left her Infiniti and hailed a taxicab near DuPont
Circle. When Mohamadi entered the cab, he requested the driver,
Gabru Haile, to drive him to the Landmark Mall in Alexandria,
Virginia. Mohamadi changed his destination several times during
the trip, however, asking to go first to Georgetown, then to
Alexandria, then back to the District, then back to Alexandria.
3
While riding in the cab, Mohamadi used Haile’s cell phone and
made seven calls to his girlfriend. During the drive, Mohamadi
stated that his family was from Afghanistan and asked Haile if
he wanted to hire a prostitute. The trip ended at an apartment
complex in Alexandria, where Mohamadi robbed Haile at gunpoint
with a dark pistol.
After Mohamadi departed from the taxicab, Haile called the
police and reported having been robbed. Meanwhile, Ms. Riley
had also contacted the authorities and reported that she had
been robbed. Both victims described the perpetrator of their
respective robberies as a man who fit Mohamadi’s description.
B.
On August 10, 2007, Mohamadi was arrested and charged in
Fairfax County, Virginia, with the armed robbery of Haile.
While in custody awaiting his state court trial, Mohamadi sought
to hire at least two inmates to murder Haile, who was expected
to be the key witness in Mohamadi’s trial. Unfortunately for
Mohamadi, the inmates alerted the federal authorities that
Mohamadi had solicited Haile’s murder. Inmate Richard Bryan was
the first to do so. At the behest of the authorities, Bryan
wore a device that videotaped his subsequent conversations with
Mohamadi, and these videos reveal Mohamadi advising Bryan how
4
Haile was to be killed. 1 After Bryan was released from custody,
Mohamadi (who was still in jail) sent Bryan a money order for
$250 and supplied him with Haile’s home address.
Another inmate, Randy Pressley, reported to the authorities
that Mohamadi had solicited the murder of a cab driver who was
going to testify against Mohamadi. A third inmate, Stephen
Grant, advised federal officials that, in the fall of 2007,
Mohamadi (who Grant knew as “Omar”) had offered $10,000 cash and
a BMW for the murder of a cab driver.
C.
Mohamadi paid his girlfriend, Amanda Inge, to testify
falsely in his state court trial in December 2008. As a result,
Inge testified that the phone calls she received from Haile’s
cell phone the night of the robberies of Ms. Riley and Haile
were from a person other than Mohamadi. A hung jury resulted,
and a mistrial was thus declared in the state court proceedings.
Four months later, on April 9, 2009, Mohamadi was indicted
in the Eastern District of Virginia on the ten counts involved
in this case: Hobbs Act robbery (Counts 1 and 2), using and
1
Bryan testified at trial that the instructions given by
Mohamadi were to “disguise myself as a pizza deliveryman or UPS
man or even a detective. And to be able to penetrate and get to
the apartment and get them to open the door so that I can shoot
[Haile].” J.A. 61. (Citations herein to “J.A. ____” refer to
the contents of the Joint Appendix filed by the parties in this
appeal.)
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carrying a firearm during and in relation to a crime of violence
(Counts 3 and 4), being a felon in possession of a firearm
(Count 5), solicitation to commit murder for hire (Counts 6 and
7), murder for hire (Count 8), and witness tampering (Counts 9
and 10). Mohamadi thereafter made several motions seeking,
inter alia, dismissal of certain charges for lack of venue,
severance of certain counts, dismissal of the Hobbs Act charges
for lack of jurisdiction, dismissal of the indictment for speedy
trial violations, and suppression of evidentiary
identifications. After a hearing conducted on September 25,
2009, the district court denied each of these motions. In a
separate motion in limine, Mohamadi sought to bar the
prosecution from using the video and audio recordings of his
jailhouse meetings with fellow inmate Bryan, where Mohamadi had
discussed other murders and his prior involvement in drug
dealing and prostitution. In ruling, the court partially
granted the in limine request and barred certain portions of the
recordings from evidence.
Mohamadi’s federal trial was initially scheduled for
October 2009, but was continued when the district court ordered
a competency evaluation. Following receipt of the results
thereof, the court found Mohamadi to be competent and the trial
was conducted in Alexandria in March 2010. Among the
prosecution’s witnesses, Inge testified that Mohamadi
6
communicated with her from jail and instructed her to testify
falsely in his state court trial and also before the federal
grand jury. Both Ms. Riley and Haile had, during the
investigation, identified Mohamadi from a photo line-up as the
person that robbed them. They also identified Mohamadi at trial
as the culprit in those robberies. The three inmates testified
regarding their interactions with Mohamadi, and portions of
their videotaped meetings with Mohamadi were presented to the
jury. Mohamadi testified in his own defense and confirmed,
inter alia, that he was a convicted felon and that he had spoken
to inmates Bryan and Pressley while in custody. On March 18,
2010, the jury returned a guilty verdict on eight of the
offenses charged in the indictment. 2
Following his convictions by the jury and the court,
Mohamadi sought post-trial relief in the form of judgments of
acquittal and a new trial, essentially realleging the
contentions he had made earlier. By its memorandum opinion of
June 17, 2010, the district court denied Mohamadi’s post-trial
requests for relief. The court then sentenced Mohamadi to
2
The two counts of the indictment on which Mohamadi was not
convicted by the jury were Counts 5 and 6. Mohamadi had waived
his right to a jury trial on Count 5 — being a felon in
possession of a firearm — and the trial court found him guilty
of that offense. The jury acquitted Mohamadi on Count 6, a
charge of solicitation of “former Inmate 1” to commit murder for
hire. Former Inmate 1 appears to refer to Pressley.
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fifty-seven years in prison. See United States v. Mohamadi, No.
1:09-cr-00179 (E.D. Va. June 17, 2010). 3 Mohamadi filed his
notice of appeal on June 25, 2010, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
In pursuing this appeal, Mohamadi presents multiple
contentions of error. Among them, he challenges the joinder of
charges made by the grand jury in the indictment. Next,
Mohamadi maintains that his incriminating statements to Bryan
while they were in jail were improperly admitted into evidence.
He also asserts that the court lacked venue for the offenses
charged in Counts 1 and 3, relating to his robbery of Ms. Riley.
Finally, Mohamadi contends that the Riley robbery failed to
sufficiently affect interstate commerce under the Hobbs Act. We
assess these contentions in turn. 4
3
The court’s memorandum opinion of June 17, 2010, is found
at J.A. 647-53.
4
Mohamadi makes several other appellate contentions which,
after careful consideration, we are satisfied to summarily
reject. First, Mohamadi contests the admission of inculpatory
photographic line-up evidence, asserting that the manner in
which the photographs were presented to the witnesses was overly
suggestive and that he was dressed differently than the other
line-up participants. The district court rejected these
contentions, however, finding no notable differences in the
attire reflected in the photographic images. As the court
explained post-trial, the identifications were reliable given
(Continued)
8
A.
We first assess Mohamadi’s contention that the offenses
charged in the indictment were improperly joined. We review de
novo a claim, interposed pursuant to Federal Rule of Criminal
Procedure 8(a), of improper joinder of offenses in an
indictment. United States v. Hawkins, 589 F.3d 694, 700 (4th
Cir. 2009).
In pursuing the joinder issue, Mohamadi contends that the
indictment actually related to seven events that should have
been charged separately and thus required seven trials. More
specifically, Mohamadi sought to separate the charges as
follows: the robbery of Ms. Riley (the prostitute); the robbery
of Haile (the taxi driver); the charge that Mohamadi was a felon
in possession of a firearm; three solicitations of murder made
to three different inmates; and witness tampering with respect
to his girlfriend. Mohamadi asserts that he was prejudiced by
the improper joinder of these offenses in that he would have
exercised his Fifth Amendment right not to testify on some of
the amount of time each victim spent with Mohamadi. Second,
Mohamadi maintains that there was a material difference between
the allegations and the jury instructions with respect to the
Hobbs Act robberies. Put succinctly, however, there is no such
distinction to be made. Finally, Mohamadi asserts that his
speedy trial rights were contravened. This contention is also
baseless.
9
the charges but would willingly have testified regarding others.
He contends that the charges in the indictment are — for the
most part — unrelated to each other and simply constitute seven
separate events that occurred on different dates and were not
part of the same transaction or plan.
Under Rule 8(a), a grand jury may charge in separate counts
two or more offenses that are of the same or similar character,
based on the same act or transaction, or connected with or
constitute parts of a common scheme or plan. 5 Nevertheless, Rule
8 contemplates and authorizes a “very broad joinder,” because
separate trials of related offenses are a waste of judicial
resources. Hawkins, 589 F.3d at 700.
In assessing an improper joinder issue, we are obliged to
look for “a ‘logical relationship’ between offenses charged in
the indictment.” United States v. Blair, 661 F.3d 755, 769 (4th
Cir. 2011) (quoting United States v. Cardwell, 433 F.3d 378, 385
(4th Cir. 2005)). In this case, each of the charged offenses
arose from the crime spree that Mohamadi carried out in the span
of several hours during the night and early morning of May 26-
5
Rule 8(a), governing “Joinder of Offenses,” provides, in
pertinent part, that “[t]he indictment . . . may charge a
defendant in separate counts with 2 or more offenses if the
offenses charged . . . are of the same or similar character, or
are based on the same act or transaction, or are connected with
or constitute parts of a common scheme or plan.”
10
27, 2007. During that period, Mohamadi first hired and robbed
Ms. Riley with a firearm, and immediately thereafter hired and
robbed Haile with the same handgun. The two robberies thus
occurred on the same night and were part and parcel of the same
excursion from Mohamadi’s apartment — constituting vastly more
than a mere temporal relationship. Mohamadi then proceeded to
interfere with the state and federal prosecutions of his crime
spree by tampering with a witness and seeking more than once to
have the key witness murdered.
The trial evidence relating to the witness tampering and
solicitation of murder offenses necessarily included evidence of
Mohamadi’s robbery of Haile. If these charges had been severed
for separate trials “a needless duplication of judicial effort”
would have resulted. See United States v. Mir, 525 F.3d 351,
357 (4th Cir. 2008) (finding proper joinder in witness tampering
prosecution). Moreover, the evidence of Mohamadi’s various
solicitations for Haile’s murder would probably have been
admissible in a separate Hobbs Act trial. See United States v.
Hayden, 85 F.3d 153, 159 (4th Cir. 1996). As a result, there is
no support for Mohamadi’s contention that the grand jury’s
joinder of offenses in the indictment was legally flawed. 6
6
With respect to Mohamadi’s related severance contention,
one which requires our application of the more deferential abuse
of discretion standard, see Blair, 661 F.3d at 768, the record
(Continued)
11
B.
Next, we turn to the trial court’s admission into evidence
of the inculpatory statements Mohamadi made to fellow inmate
Bryan during their common incarceration. Mohamadi asserts that
Bryan’s testimony regarding their conversations, which occurred
after Mohamadi had been indicted on a state armed robbery charge
— but prior to the federal indictment — contravened the Sixth
Amendment because the incriminating statements he made about the
robbery were obtained in the absence of his lawyer. In
assessing such an issue, we view the evidence in the light most
favorable to the government, assess the trial court’s factual
findings for clear error, and consider the court’s legal
conclusions de novo. United States v. Lentz, 524 F.3d 501, 522
(4th Cir. 2008).
The Supreme Court has recognized that a defendant's Sixth
Amendment right to counsel is contravened if the government
amply supports the district court’s denial of the request to
sever various counts of the indictment. Put simply, however,
there was overwhelming evidence of Mohamadi’s guilt on each
offense on which he was convicted. He also ultimately failed to
make any particularized showing that the testimony he might have
given with respect to certain of the charges was a proper basis
for a severance of counts, even though he may well have
preferred to remain silent on other counts. United States v.
Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984) (requiring such
showing for severance of offenses). In these circumstances, the
court’s denial of the severance of offenses was not an abuse of
its discretion.
12
“deliberately elicit[s]” incriminating evidence from an accused
“after he ha[s] been indicted and in the absence of his
counsel,” and then uses the incriminating statements against him
at trial. Massiah v. United States, 377 U.S. 201, 206 (1964).
The district court found, however, that when Mohamadi first
solicited the other inmates to murder Haile, none of them were
in contact with law enforcement officers and none were acting as
agents of the government. To the contrary, the court found that
the government could not deliberately have elicited
incriminating evidence about Mohamadi’s robbery of Haile,
because, after the inmates made contact with the federal
officials, none of them discussed with Mohamadi his state
charge. In denying Mohamadi’s motion to exclude such statements
on Sixth Amendment grounds, the court found and concluded that:
In the case before the Court, the Government has
clearly demonstrated that at the time the inmates
discussed the underlying robbery with Defendant, they
were not cooperating with the Government in any
capacity. It was not until after these discussions
occurred that the inmates approached the Government to
alert them to Defendant’s intent to harm a witness.
After speaking with law enforcement, no inmate
discussed the armed robbery with Defendant further.
. . . The Government has turned over to Defendant the
tapes of the conversations between Defendant and
Inmate 3 [Bryan], and Defendant has been unable to
point to any discussion in those tapes where there is
a Sixth Amendment violation.
United States v. Mohamadi, No. 1:09-cr-00179 (E.D. Va. March 2,
2010) (J.A. 570).
13
Notably, Mohamadi does not contend on appeal that the
district court clearly erred in making these findings. He
simply asserts that Bryan’s testimony was improperly used to
prove that Mohamadi was guilty of robbing Haile, rather than as
evidence of Mohamadi’s solicitations to commit murder for hire.
Although Bryan testified at trial about discussions he had with
Mohamadi concerning the Haile robbery, these discussions had
occurred before Bryan alerted the government to the plot against
the witness. Moreover, Bryan’s testimony with respect to his
conversations with Mohamadi after Bryan was in contact with
federal officials was limited to details of Mohamadi’s
solicitation for Haile’s murder.
Furthermore, none of the inmates solicited by Mohamadi had
any preexisting relationship with the government. And, after
informing the authorities that Mohamadi was seeking to have
Haile killed, none of the inmates discussed Mohamadi’s
underlying robbery offense with him. In light of this factual
predicate, the district court’s admission of Bryan’s evidence
regarding Mohamadi’s criminal activities was not improper.
C.
Turning to the venue issue, Mohamadi contends that venue
was improper in the Eastern District of Virginia on Counts 1 and
3, both of which relate to his robbery of Ms. Riley. Because
the robbery of Riley occurred in the District of Columbia, there
14
was, according to Mohamadi, no basis for venue on these charges
in the Eastern District of Virginia. We assess de novo a
district court’s venue ruling. United States v. Stewart, 256
F.3d 231, 238 (4th Cir. 2001).
The government is obligated prove the venue of a criminal
offense by a preponderance of the evidence. United States v.
Burns, 990 F.2d 1426, 1436 (4th Cir. 1993). 7 The elements of a
Hobbs Act violation are: (1) an underlying robbery or
extortion; and (2) an effect on interstate commerce. United
States v. Williams, 342 F.3d 350, 353 (4th Cir. 2003). The
government contends that, in this case, “commerce was affected
in the Eastern District of Virginia and the intent to rob was
formed in Virginia when Mohamadi armed himself with his firearm
after paying considerable money to the prostitute he had hired
and brought into [the Eastern District of Virginia].” Br. of
Appellee 39-40. At trial, the government established that
Mohamadi had hired Ms. Riley in Alexandria, enjoyed her
prostitution services there, and paid her more than a thousand
dollars in cash. Indeed, the evidence was that Mohamadi paid
7
The jury was instructed that the government had to prove
each element of the Hobbs Act offenses, including the venue
element, beyond a reasonable doubt. This instruction was thus a
more favorable one for Mohamadi than an instruction that venue
had to be proven only by a preponderance. Although the record
is somewhat sparse, we assume that the venue issue was properly
preserved and review it de novo.
15
Riley nearly $1200 in cash, robbed her of those funds, and then
returned to Alexandria with her money.
Venue under the Hobbs Act is proper in any district where
commerce is affected. United States v. Bowens, 224 F.3d 302,
313 (4th Cir. 2000); see also United States v. Lewis, 797 F.2d
358, 367 (7th Cir. 1986). A minimal impact on commerce is
sufficient to satisfy the venue element of the Hobbs Act.
Williams, 342 F.3d at 354. It was therefore enough for the
prosecution to show, by a preponderance, that Riley’s
prostitution business took her into the Eastern District of
Virginia, that large sums of cash changed hands there, and that
the money belonging to Riley’s business reentered that district.
See Lewis, 797 F.2d at 367 (recognizing that “the effect need
not be simultaneous with the attempted extortion”).
In these circumstances, as the jury found beyond a
reasonable doubt, venue for the Hobbs Act robbery charged in
Count 1 was proper in the Eastern District of Virginia. And,
because venue was proper for that offense, venue in that
district was also proper on Count 3 (using and carrying a
firearm during and in relation to a crime of violence (18 U.S.C.
§ 924(c)(1))). See United States v. Rodriguez-Moreno, 526 U.S.
275, 281-82 (1999) (recognizing that venue for § 924(c) offense
was proper where underlying crime of violence could be
prosecuted).
16
D.
Finally, we assess whether there was sufficient evidence to
show that Mohamadi’s robbery of Ms. Riley affected interstate
commerce and conferred jurisdiction under the Hobbs Act. When
assessing the sufficiency of evidence in a criminal prosecution,
we are obliged to uphold a guilty verdict if there is
substantial evidence to support it. United States v. Wilson,
198 F.3d 467, 470 (4th Cir. 1999).
We have not heretofore ruled that prostitution is an
“inherently economic enterprise that affects interstate
commerce.” Williams, 342 F.3d at 355. We have, however,
concluded that the robbery of a drug dealer — an analogous crime
for our purposes — “impacts a trade [drug dealing] that plainly
is both economic and interstate in character.” Id. at 354. In
this case, Ms. Riley’s prostitution business was — like drug
dealing — of an economic nature and interstate in character.
Her business was similarly an “economic activity,” and
Mohamadi’s armed robbery of Riley depleted her business assets
and affected commerce. See id. at 354-55 (“Commerce is
sufficiently affected under the Hobbs Act where a robbery
depletes the assets of a business that is engaged in interstate
commerce.”) (citing United States v. Buffey, 899 F.2d 1402, 1404
(4th Cir. 1990)).
17
Mohamadi nevertheless argues that Ms. Riley’s business
assets were not depleted by his armed robbery of her in the
District of Columbia because her prostitution services were not
thereby obstructed. The prosecution, however, presented
sufficient evidence to show that Riley spent substantial sums of
money in the conduct of her business, by way of hotel
accommodations, car rentals, and other expenses. Viewing the
evidence in the light most favorable to the government, there
was substantial evidence supporting the jury’s conclusion that
Mohamadi’s robbery of Riley contravened the Hobbs Act.
III.
Pursuant to the foregoing, we reject Mohamadi’s various
appellate contentions and affirm each of his convictions.
AFFIRMED
18