United States v. Mahdi

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2009 Decided March 30, 2010

No. 03-3154

UNITED STATES OF AMERICA,
APPELLEE

v.

ABDUR R. MAHDI, ALSO KNOWN AS CHIEF,
ALSO KNOWN AS BIG CHIEF,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 01cr00396-01)

Robert S. Becker, appointed by the court, argued the cause
for the appellant.
Stephanie Goldstein Brooker, Assistant United States
Attorney, argued the cause for the appellee. Roy W. McLeese III
and Mary B. McCord, Assistant United States Attorneys, were
on brief.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Abdur Mahdi
was charged with operating a narcotics distribution enterprise in
northwest Washington, D.C. and was convicted of 48 criminal
counts involving possessing/distributing narcotics, racketeering,
firearms use and possession, assault, murder, perjury and
obstruction of justice. See 3d Re-typed Indictment, United
States v. Mahdi, Crim. No. 01-396-1 (July 14, 2003)
(Indictment). The district court sentenced Mahdi to ten life
sentences (concurrent with each other and with lesser terms of
incarceration) followed by one 7-year and five 25-year
consecutive sentences. Judgment, id. (Dec. 22, 2003). Mahdi
challenges both his convictions and his sentences on various
grounds. We affirm his convictions and sentences with a single
exception: we vacate his conviction on two counts of
distribution of a controlled substance (cocaine base) and four
counts of possessing with intent to distribute (PWID) a
controlled substance (cocaine, cocaine base and marijuana),
which together merge into six corresponding counts of
distribution and PWID within 1,000 feet of a school, and remand
for resentencing.
I.
Viewed in the light most favorable to the government, see
United States v. Lloyd, 515 F.3d 1297, 1298-99 (D.C. Cir.
2008), the evidence establishes the following facts. Mahdi
purchased narcotics from a man known as “Radar” and
distributed them on the street either himself or through others.
Initially, Mahdi purchased “crack” cocaine in bulk to resell in
the street sales but later began to purchase cocaine powder and
“cook” the crack himself, stretching the amounts with baking
soda. In the course of his drug distribution operation, Mahdi
conspired to commit or did commit more than twelve violent
crimes.
The District of Columbia Metropolitan Police Department
(MPD) investigated Mahdi over several years, using undercover
 3

operatives, observation posts, video surveillance, wiretaps and
search warrants. Particularly effective were undercover drug
purchases conducted or overseen by MPD Officer Cynthia
Lovely in March 2000, which formed the basis for various
distribution counts and for warrants to search Mahdi’s house
and his automobiles (where he “stashed” drugs) which MPD
executed in December 1999, August 2000, December 2000 and
November 2001. The searches yielded, inter alia, over 600
grams of cocaine base as well as five firearms and
corresponding ammunition.
Mahdi was arrested on November 15, 2001 after a grand
jury returned a 324-count indictment against him and 15 others
on November 8, 2001. After all of Mahdi’s co-defendants
entered guilty pleas, the indictment was filed in its final form
(“[r]e-typed”), naming Mahdi alone as defendant and charging
him with forty-nine counts involving drugs, firearms and acts of
violence, including violations of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d),1 the
Violent Crimes in Aid of Racketeering statute (VICAR), 18
U.S.C. § 1959,2 and 18 U.S.C. § 924(c).3 See Indictment,

1
This RICO provision makes it unlawful to conspire to participate
in a pattern of racketeering activity as prohibited under section
1962(a), (b) or (c).
2
VICAR, quoted in relevant part infra p. 8, sets out specific
punishments for anyone who perpetrates specifically enumerated
violent crimes in connection with racketeering activity.
3
Section 924(c) prescribes minimum sentences for anyone
convicted of carrying or using a firearm “during and in relation to any
crime of violence or drug trafficking crime” or possessing a gun “in
furtherance of any such crime.”
 4

Appellant’s App. 201.4 Mahdi’s trial began on April 14, 2003
and, on July 31, 2003, the jury returned a verdict convicting
Mahdi of 48 counts.5 On December 4, 2003, the district court
sentenced Mahdi to various concurrent prison terms, including
ten life sentences followed by one 7- and five 25-year
consecutive terms. Mahdi filed a timely notice of appeal.
II.
Mahdi contests his convictions and sentence on various
grounds. We address each ground seriatim.
A. Multiplicitous Indictment
When an indictment charges the same offense in more than
one count, it often creates “a problem known as ‘multiplicity,’ ”
United States v. Weathers, 186 F.3d 948, 951 (D.C. Cir. 1999)
(quoting 1A Charles Alan Wright, Federal Practice & Procedure

4
The 49-count indictment charges the following offenses: 1 count
of conspiracy to distribute and PWID cocaine, cocaine base and
marijuana (Count 1); 1 count of RICO conspiracy (Count 2); 2 counts
of carrying a pistol without a license (Counts 3, 18); 1 count of armed
robbery (Count 4); 2 counts of assault with a dangerous weapon
(Counts 5, 21); 10 counts of VICAR (Counts 6, 7, 9, 11, 13, 15, 17,
22, 24, 26); 1 count of first degree murder while armed (Count 12); 1
count of perjury (Count 19); 1 count of obstruction of justice (Count
20); 6 counts of assault with intent to murder while armed (Counts 8,
10, 14, 16, 23, 25); 6 counts of use of a firearm in a violent crime
(Counts 27, 28, 29, 30, 31, 32); 5 counts of possessing a firearm
during a crime of violence (Counts 33, 34, 35, 36, 37); 2 counts of
distributing cocaine base (Counts 38, 39); 4 counts of PWID cocaine,
cocaine base or marijuana (Counts 40, 41, 42, 43); and 6 counts of
distribution or PWID of a controlled substance within 1,000 feet of a
protected place (a school) (Counts 44, 45, 46, 47, 48, 49).
5
The jury failed to reach a verdict on Count 4 (armed robbery)
and the court declared a mistrial thereon.
 5

§§ 142, 145, at 7-8 (3d ed.1999)), because “the Double
Jeopardy Clause protects not only against ‘a second prosecution
for the same offense’ after acquittal or conviction, but also
against ‘multiple punishments for the same offense,’ ” id.
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
“Whether defendant has in fact been punished twice for the
same offense, however, depends upon what ‘the legislature
intended.’ ” Id. (quoting Jones v. Thomas, 491 U.S. 376, 381
(1989)). Mahdi argues that eight of the VICAR counts, three of
the “sub-conspiracies” in the RICO count and five of the section
924(c) counts were also charged as violations of D.C. law,
which means the latter are multiplicitous lesser included
offenses of the VICAR, RICO and section 924(c) counts for
which he may not be punished a second time. The government
counters that Mahdi waived the multiplicity objection because
he did not raise it until this appeal. See Weathers, 186 F.3d at
952 (“According to Circuit precedent, multiplicity claims of the
kind presented here are defenses based on ‘defects in the
indictment’ within the meaning of Rule 12(b)(2), and hence are
waived under Rule 12(f) if not raised prior to trial.”); see Fed.
R. Crim. P. 12(b)(3) (formerly 12(b)(2)); id. R. 12(e) (formerly
12(f)). Mahdi asserts, in turn, he can show “good cause” for his
failure to raise an objection below so as to excuse the waiver.
See id. (“For good cause, the court may grant relief from the
waiver.”); Weathers, 186 F.3d at 952-53. We need not resolve
the parties’ waiver dispute. Because Mahdi did not object in the
district court to the alleged multiplicity, we review his
arguments for plain error. See United States v. Kelly, 552 F.3d
824, 829 (D.C. Cir. 2009) (“We apply plain error review to the
double jeopardy issue because [the defendant] ‘allow[ed][the]
alleged error to pass without objection’ below.” (quoting In re
Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002))) (alteration in
original); see also Appellant’s Br. 8 (seeking plain error
review). Under the plain error standard, “ ‘we will correct a
district court’s error only if (1) there is in fact an error to
 6

correct; (2) the error is “plain”; (3) it “affects substantial
rights”; and (4) it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” ’ ” United States v.
Walker, 545 F.3d 1081, 1086-87 (D.C. Cir. 2008 (quoting
United States v. Taylor, 497 F.3d 673, 676 (D.C. Cir. 2007)
(quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997))). Applying this standard, we conclude that the district
court did not plainly err in failing to strike the alleged lesser
included offenses from the indictment.
Mahdi contends the indictment is multiplicitous in three
respects. His primary contention is that eight of the VICAR
assault and murder counts (Counts 6, 9, 11, 13, 15, 17, 24, 26)
are multiplicitous of the analogous D.C. criminal counts of
assault with a dangerous weapon (Count 5), assault with intent
to murder while armed (Counts 8, 10, 14, 16, 23, 25) and first
degree murder while armed (Count 12). The court did not
plainly err in failing sua sponte to strike the D.C. or federal
counts as multiplicitous. To determine multiplicity vel non,
courts generally apply the Blockburger test: “ ‘[W]here the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not,’ ” i.e., whether
either is a lesser included offense of the other. Weathers, 186
F.3d at 951 (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)). The Blockburger test, however, provides only
a canon of construction, not a “conclusive presumption of law.”
Garrett v. United States, 471 U.S. 773, 779 (1985); see United
States v. McLaughlin, 164 F.3d 1, 8 (D.C. Cir. 1998) (“As a tool
of statutory construction, the Blockburger test is not absolutely
controlling.” (citing Albernaz v. United States, 450 U.S. 333,
340 (1981))). “ ‘There is nothing in the Constitution which
prevents Congress from punishing separately each step leading
to the consummation of a transaction which it has power to
prohibit and punishing also the completed transaction.’ ”
 7

Garrett, 471 U.S. at 779 (quoting Albrecht v. United States,
273 U.S. 1, 11 (1927)) (emphasis in Garrett). Thus, “the
Blockburger presumption must of course yield to a plainly
expressed contrary view on the part of Congress,” that is, “when
the legislative intent is clear from the face of the statute or the
legislative history.” Id. (citing Missouri v. Hunter, 459 U.S.
359, 368 (1983); Albernaz, 450 U.S. at 340; Whalen v. United
States, 445 U.S. 684, 691-92, (1980)); McLaughlin, 164 F.3d at
8-9 (“Several cases illustrate that where there is clear evidence
of legislative intent, multiple sentences are possible even though
a Blockburger analysis would indicate otherwise.”); United
States v. White, 116 F.3d 903, 932 (D.C. Cir. 1997) (“Even if
one crime is a lesser included offense of another, punishments
may be imposed for both ‘if Congress intended that they be
imposed.’ ” (quoting United States v. Baker, 63 F.3d 1478, 1494
(9th Cir. 1995), cert. denied, 516 U.S. 1097 (1996))).
Accordingly, the Court in Garrett concluded that, “logic
supports the conclusion, also indicated by the legislative
history,” that in enacting the “Continuing Criminal Enterprise”
statute (CCE), the Congress “intended separate punishments for
the underlying substantive predicates and for the CCE offense.”
Garrett, 471 U.S. at 795. We have similarly concluded that
“RICO is intended to supplement, rather than replace, existing
criminal provisions” and that therefore “although the drug
conspiracy is a lesser included offense of the RICO conspiracy,
cumulative punishments are authorized,” noting that “the
circuits that have held drug conspiracies to be lesser included
offenses of RICO conspiracies or have not resolved the issue
nevertheless allow cumulative sentences to stand on the ground
that the Congress ‘intended to permit, and perhaps sought to
encourage, the imposition of cumulative sentences for RICO
offenses and the underlying crimes.’ ” White, 116 F.3d at 932
(quoting United States v. Kragness, 830 F.2d 842, 864 (8th Cir.
1987)).
 8

The VICAR statute’s language supports the same sort of
Congressional intent. It sets out specific punishments for
anyone who “murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault resulting in serious bodily
injury upon, or threatens to commit a crime of violence against
any individual in violation of the laws of any State or the United
States, or attempts or conspires so to do” in return for “anything
of pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering
activity.” 18 U.S.C. § 1959(a) (emphasis added). The quoted
language at least suggests that the Congress intended to impose
for a VICAR violation a cumulative penalty separate from and
in addition to what is authorized by a particular “law[] of a[]
State or the United States,” as it did in enacting RICO and the
CCE statute, based upon the showing of an additional statutory
element —in the case of VICAR, that the underlying violent
offense bears a certain relationship to racketeering activity. At
least this is a reasonable construction, particularly in light of the
close relationship between VICAR and RICO, the latter of
which, as already noted, we have held to authorize separate
sentences for both RICO and a lesser included offense. See 18
U.S.C. § 1959(b)(1) (VICAR “ ‘racketeering activity’ has the
meaning set forth in [RICO] section 1961”). Thus, “ ‘absent
precedent from either the Supreme Court or this court’ ” that
VICAR does not authorize cumulative punishments, the
“ ‘asserted error . . . falls far short of plain error.’ ” United
States v. Perry, 479 F.3d 885, 893 n.8 (D.C. Cir. 2007) (quoting
United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000)).
Second, Mahdi asserts that the RICO conspiracy count
(Count 2) “subsumes . . . three subsidiary D.C. murder
conspiracies” contained in it. Appellant’s Br. 10. The D.C.
murder conspiracies identified, however, were not charged as
separate counts but merely as racketeering acts within the RICO
count. Indictment 23-29. Thus, there is no multiplicity. See
 9

Weathers, 186 F.3d at 951 (multiplicity occurs if “indictment
charged the same offense in more than one count”) (emphasis
added).6
Finally, Mahdi contends that five of the counts charging
use of a firearm during a drug trafficking crime or crime of
violence (18 U.S.C. § 924(c)) (Counts 28-32) are multiplicitous
with the D.C. counts charging possession of a firearm during a
crime of violence (D.C. Code § 22-4504(b)) (PFCV) (Counts
33- 37). This argument fails under Blockburger because “ ‘each
provision requires proof of a fact which the other does not,’ ”
Weathers, 186 F.3d at 951 (quoting Blockburger, 284 U.S. at
304 )—that is, neither is a lesser included offense of the other.
When analyzing compound offenses such as the two at issue
here, we look to the predicate offenses charged, McLaughlin,
164 F.3d at 13—in this case VICAR (for section 924(c)) and
first degree murder and assault with intent to murder (for
section 22-4504(b)). VICAR requires a showing of
participation in a racketeering activity which the D.C. murder
and assault charges do not; the D.C. charges, in turn, require
proof of either premeditation or specific intent, see United
States v. Sumler, 136 F.3d 188, 190 n.3 (D.C. Cir. 1998); Hardy
v. United States, 2010 WL 374113, at *3 (D.C. Feb. 4, 2010),
which VICAR does not. Because a VICAR violation is not the
“same offense” under the Blockburger test as either of the D.C.
crimes, we conclude that the section 924(c) and the PFCV
counts “each required an element that the other did not” and
“[t]herefore, the Blockburger test is satisfied.” McLaughlin,
164 F.3d at 13; see also United States v. Diaz, 176 F.3d 52, 101
(2d Cir. 1999) (“Murder under either [RICO or VICAR] . . . is
not simply a federalized version of the state crime. Rather, it is

6
In any event, as already noted, RICO authorizes cumulative
sentences notwithstanding the charging of lesser included offenses.
See White, 116 F.3d at 931-32.
 10

a distinct substantive offense that requires proof of its own
particular elements.”); cf. United States v. Marino, 277 F.3d 11,
39 (1st Cir. 2002) (VICAR not lesser included offense of RICO
count naming VICAR as predicate offense). In so concluding,
we reject Mahdi’s contention that “the indictment incorporated
the definitions of those D.C. offenses as an element of the
VICAR offense.” Reply Br. 5; see Diaz, 176 F.3d at 96 (“[T]he
reference to violating state law in the VICAR count is only
meant to indicate unlawful conduct that constitutes a predicate
offense for a VICAR charge under § 1959(a)(6).”).
B. Uncharged Conduct
Next, Mahdi contends the district court erred in not
requiring that the government notify Mahdi of “intrinsic”
evidence of uncharged conduct and in admitting such evidence
despite the undue prejudice its “cumulation” caused him. See
Appellant’s Br. 17-23. Mahdi points to only two instances
where the government elicited evidence of uncharged acts: (1)
the testimony of Sherrilyn Lee, one of Mahdi’s sellers, that on
one occasion Mahdi put a knife to her back (although he did not
use force or break the skin but was “playing”), Trial Transcript,
United States v. Mahdi, Crim. No. 01-396-1, at 13-14 (a.m. May
13, 2003) (hereinafter cited in format: 5/5am Tr. 13-14); and (2)
the testimony of drug purchaser and co-conspirator James
Hamilton that, during an argument over the keys to Hamilton’s
van, Mahdi “lunged at [him] with a knife and struck” him in the
shoulder, “just br[eaking] the skin” but leaving no scar, 5/7pm
Tr. 71-76; 5/8pm Tr. 62-70. We see no ground for reversal.
We first address the lack of notice claim. Noting that “Rule
404(b) . . . requires the government to give notice of its intent
to use [propensity] evidence to ‘reduce surprise and promote
early resolution on the issue of admissibility,’ ” Mahdi contends
that, by denying his request for a “bill of particulars,” the
district court deprived him of his “ability ‘to [be] inform[ed of]
. . . the charge against him in sufficient detail [to] prepare a
 11

defense and to minimize surprise at trial.’ ” Appellant’s Br. 18,
20 (quoting United States v. Gordon, 780 F.2d 1165, 1172 (5th
Cir. 1986)).7 The government was not required, however, to
provide notice of the intrinsic evidence to which Mahdi refers.
Federal Rule of Evidence 404(b) authorizes admission of
“[e]vidence of other crimes, wrongs, or acts” provided it is
offered not “to prove the character of a person in order to show
action in conformity therewith” but rather “for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Rule
404(b) further requires “that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice
. . . of the general nature of any such evidence it intends to
introduce at trial.” No such notice is required, however, for
evidence of an “intrinsic act,” that is, an act that is “part of the
crime charged.” United States v. Bowie, 232 F.3d 923, 927
(D.C. Cir. 2000) (noting one consequence of labeling evidence
‘intrinsic’ is “to relieve the prosecution of Rule 404(b)’s notice
requirement” (citing Fed. R. Evid. 404(b) advisory committee’s
note to 1991 amendments)). And Mahdi has correctly labeled
the two cited incidents as “intrinsic acts” because the testimony
about them was offered “not as circumstantial evidence
requiring an inference regarding the character of the accused”
but “as direct evidence of a fact in issue,” which “ ‘will, by
definition, always satisfy Rule 404(b).’ ” United States v.
Alexander, 331 F.3d 116, 125-26 & n.13 (D.C. Cir. 2003)
(quoting Bowie, 232 F.3d at 927). The testimony was offered,
and admitted, to show “how [Mahdi] ke[pt] the worker-bees in
line,” 5/5am Tr. 15 (Lee incident) and “the kind of

7
Mahdi acknowledges the district court directed the government
to inform it before eliciting evidence that “falls outside the scope of
the conspiracy evidence, or it is the kind of act of violence that would
be what [the court] define[d] as shootings, stabbings, and robberies,
killings.” 3/6am Tr. 32.
 12

organizational control” he exercised, 5/7am Tr. 13
(Hamilton)—facts placed in issue by Mahdi’s defense that there
was no organized enterprise at all and that “to the extent that a
narcotics conspiracy existed it was made up of equals,” of
which he was but one. Appellant’s Br. 4. Accordingly, the
court did not err in failing to require that the government
provide notice of the cited testimony.8

8
On appeal, Mahdi argues—for the first time—that the lack of
notice of the two incidents (and of a shooting revealed during Mahdi’s
cross-examination of government witness Joseph Hooker) deprived
Mahdi of his Sixth Amendment right to confront witnesses. Because
the argument was not raised before the trial court, we review it for
plain error. See Olano, 507 U.S. at 732. Given the established rule
that the government need not provide notice of intrinsic evidence and
the dearth of authority to support Mahdi’s contrary position—from
this court or the Supreme Court—the “asserted error falls far short of
plain error.” Perry, 479 F.3d at 894 n.8 (internal quotation omitted).
In any event, because Mahdi has not demonstrated any unfair
prejudice from Lee’s and Hamilton’s testimony, as we next conclude,
the failure to provide notice of the testimony did not “affect[]
[Mahdi’s] substantial rights,” the third plain error prerequisite. See
United States v. Smith, 232 F.3d 236, 243 (D.C. Cir. 2000)
(“ ‘substantial rights’ inquiry of Federal Rule of Criminal Procedure
52(b) mirrors Rule 52(a)’s ‘harmless error’ inquiry, except that the
burden in the former falls on the defendant to show prejudice”
(quoting Olano, 507 U.S. at 734 (1993))); United States v. Baugham,
449 F.3d 167, 183 (D.C. Cir. 2006) (third Olano element requires that
appellant “ ‘make a specific showing of prejudice,’ i.e., show that the
error ‘affected the outcome of the district court proceedings’ ”
(quoting Olano, 507 U.S. at 734-35)). With regard to the shooting
testimony Mahdi’s counsel elicited from Hooker on cross-
examination, Mahdi offers no authority that a defendant’s Sixth
Amendment right is violated when his own counsel elicits on cross-
examination his bad acts. Cf. United States v. Brazel, 102 F.3d 1120,
1154 (11th Cir. 1997) (“[T]he fact that cross-examination is fraught
with the peril of bringing out other facts detrimental to a defendant
 13

Nor did the court abuse its discretion in declining to
exclude Lee’s and Hamilton’s testimony under Rule 403 as
unfairly prejudicial. See United States v. Gartmon, 146 F.3d
1015, 1020 (D.C. Cir. 1998) (abuse of discretion standard
applicable to Rule 403 rulings). Mahdi contends the
“cumulation of uncharged conduct, of which defense counsel
had no notice and could not counter, was highly prejudicial.”
Appellant’s Br. 20. The cited testimony, however, did not cause
Mahdi undue prejudice, either individually or cumulatively. It
involved two relatively minor incidents which paled alongside
the extreme violence of the acts of which Mahdi was indicted
and convicted: shooting nine people (resulting in the death of
one) and stabbing and cudgeling two others.9 The prejudice, if
any, to Mahdi from evidence of the two acts (beyond the
testimony’s legitimate probative value) was therefore minimal.
C. Right to Present a Complete Defense
Next, Mahdi claims he was prevented from mounting an
effective defense by the government’s evidentiary strategies and

does not amount to a denial of [his Sixth Amendment] right.”). In the
absence of such authority, we do not find the district court plainly
erred. See Perry, 479 F.3d at 894 n.8. We note, in this regard, that the
court repeatedly warned Mahdi’s counsel that he (or she) should tread
carefully on cross-examination given the many violent acts Mahdi had
committed that might be unearthed, see, e.g., 5/5am Tr. 11-12, 28,
and, in particular, that Hooker knew of “serious acts of violence” that
were “directly related” to Mahdi—to which defense counsel
responded he “understood” what the court meant and would “stay
away from that,” 5/5pm Tr. 132-34. Nonetheless, Mahdi’s counsel
asked Hooker on cross-examination whether Hooker or Mahdi had
shot Hooker’s brother, Derrick, and Hooker responded it was Mahdi.
5/27pm Tr. 126-27.
9
Indeed, as Mahdi’s counsel acknowledged, “the indictment itself
is . . . overwhelming with acts of violence.” 5/7am Tr. 13.
 14

the trial court’s evidentiary rulings. Notwithstanding Mahdi’s
characterization of his claims as constitutional, we have held
that when a defendant claims exclusion of testimony “violate[s]
his Fifth Amendment right to due process and Sixth
Amendment right ‘to have compulsory process for obtaining
witnesses in his favor,’ ” the court reviews the exclusion “under
the typical abuse of discretion standard for evidentiary rulings”
and the “statutory harmless error review standard” (i.e., error is
harmless unless it has “substantial and injurious effect or
influence in determining the jury’s verdict,” Kotteakos v. United
States, 328 U.S. 750, 776 (1946))—except in the “rare” case “in
which a district court’s application of a rule of evidence is so
erroneous and unfair as to constitute a constitutional violation.”
United States v. Lathern, 488 F.3d 1043, 1045-46 (D.C. Cir.
2007). None of Mahdi’s asserted evidentiary errors presents
that rare case.
John Floyd
First, Mahdi claims the government deterred John Floyd,
Mahdi’s family’s lawyer, from testifying in Mahdi’s defense by
attempting to put on evidence suggesting Floyd acted as a sort
of “consigliere” to the Mahdis, coaching conspirators to commit
perjury in a 1999 criminal prosecution of Mahdi’s brother and
counseling Mahdi himself to prepare to flee in October 2000.
According to Mahdi, “Floyd would have provided evidence of
wrongdoing by police officers who testified against Mr. Mahdi,
contradicted cooperating witnesses’ testimony, and countered
the claim that [a lawsuit Mahdi filed against the police] was a
weapon to ward off prosecution.” Appellant’s Br. 26. Mahdi
asserted that the government’s actions “prevented [Floyd] from
testifying . . . by raising the possibility that information
provided by cooperators, which had not been disclosed to
defense counsel, would be used to impeach him and might form
the basis for criminal charges or disciplinary action by the Bar.”
Id. The record, however, reveals no attempt by Mahdi to put
 15

Floyd on the stand. In short, he identifies no error by the court.
Further, Floyd himself told Mahdi’s counsel he was “not
concerned about any Fifth Amendment claim,” 6/30pm Tr. 93,
belying Mahdi’s suggestion that the government’s conduct
deterred Floyd from testifying.
Osale Gates
Second, Mahdi asserts the court erroneously excluded the
testimony of Osale Gates that government witness Abdul-
Rahim had murdered one Dwayne T. Pate. During cross-
examination of Abdul-Rahim, who had testified about an
attempt on his life by Mahdi and Joseph Hooker10 during which
Abdul-Rahim’s companion, Curtis Hattley, was shot and killed,
defense counsel asked if Abdul-Rahim had ever “handled a gun
or saw a gun.” The witness responded: “I saw a gun before.”
Defense counsel followed up: “In whose possession, Mr.
Hattley’s?” and Abdul-Rahim responded “Yes.” 6/23am Tr. 94.
Afterward, defense counsel sought to put Gates on the stand to
testify that Abdul-Rahim had indeed handled a gun when he
shot and killed Pate in order to contradict what defense counsel
claimed was Abdul-Rahim’s denial he had ever handled one.
The district court excluded Gates’s testimony, which ruling
Mahdi now challenges.
After much discussion, the district court ultimately
excluded Gates’s testimony on the ground that, assuming
Abdul-Rahim had in fact denied ever using a gun, such a denial
“would not merit contradiction by extrinsic evidence,” 7/15pm
Tr. 14. The court explained it “would not permit [Mahdi] to
bring in a murder to show that [Abdul-Rahim] shot a gun”—not
a “murder not related to any of the murders,” 7/15am Tr. 123-

10
Hooker was Mahdi’s “shadow,” seen constantly in his company.
6/24am Tr. 76-77. Hooker also purchased crack from Mahdi which
he then resold on the street. 5/14am Tr. 54-56, 61, 65-66.
 16

24. Mahdi’s counsel indicated he “agree[d],” suggesting that
otherwise they “would be [t]here for nine months on
contradictions,” id. at 124, and does not now challenge this
aspect of the court’s ruling. Mahdi again asserts, however, as
he did below, that the court should have admitted the extrinsic
testimony to show Abdul-Rahim’s testimony was biased in the
government’s favor. 7/15pm Tr. 15.11 See United States v.
Abel, 469 U.S. 45, 50-52 (1984). The district court did not err
in rejecting this argument.
Mahdi contends Abdul-Rahim was biased because he
wanted to curry favor with the prosecutors to ward off an
investigation into his involvement in Pate’s murder. The court
reasonably rejected the argument because there was no
“connection between [Abdul-Rahim’s] alleged shooting and the
government” nor any “reason to infer that the government knew
anything about th[e] event or was aware of it at any point in
time prior to defense bringing it up here.” 7/15pm Tr. 15.
Accordingly, the court did not abuse its discretion in concluding

11
At times the trial court and the parties made reference to Federal
Rule of Evidence 608 as prohibiting impeachment by extrinsic
evidence on a collateral matter. We recently recognized that Rule 608
“ ‘leave[s] the admissibility of extrinsic evidence offered for other
grounds of impeachment[,] such as contradiction, . . . to rules 402 and
403.’ ” United States v. Fonseca, 435 F.3d 369, 375 (D.C. Cir. 2006)
(quoting Fed. R. Evid. 608 advisory committee's notes to 2003
amendments). Thus, “such evidence is admissible provided that it is
‘relevant’ and not otherwise prescribed by law or rule.” Id. (citing
Fed. R. Evid. 402). “And evidence that would contradict [a witness’s]
trial testimony, even on a collateral subject” is relevant under Rule
401 “because it would undermine her credibility as a witness
regarding facts of consequence.” Id. The trial court made clear,
however, that, whether or not Rule 608 applied, it did not view Abdul-
Rahim’s denying he ever used a gun as “merit[ting]” impeachment by
extrinsic evidence of a murder—and an unrelated one at that. See
7/15pm Tr. 14; 7/15am Tr. 123-24.
 17

that Gates’s testimony was not admissible to establish bias. Cf.
United States v. Atherton, 936 F.2d 728, 733-34 (2d Cir. 1991)
(no abuse of discretion in excluding “bias” testimony about
government informant’s illegal drug use because “probative
value of such evidence . . . depends in large measure on some
showing that the government was contemplating prosecution, or
at least was aware, of the illegality” and defendant “failed to
connect [informant’s] alleged drug use to the relationship
between [informant] and the government” as “there was no
showing of any government awareness of that use or any danger
to [informant] that he would be prosecuted because of it”);
United States v. Lamp, 779 F.2d 1088, 1095-96 (5th Cir.)
(upholding exclusion of extrinsic “bias” testimony regarding
government witness’s unlawful possession of handgun where
bias was based on “far-fetched” theory witness wanted to curry
favor with prosecutor to avoid prosecution when there was no
indication he believed he was being investigated or law
enforcement was aware of possession before it was raised at
trial), cert. denied, 476 U.S. 1144 (1986).
Paul Tyler and Omar Washington
Third, Mahdi claims the court erred in excluding the
testimony of Paul Tyler and Omar Washington, which Mahdi
sought to use to attack the credibility of Joseph Hooker, who
testified at length about Mahdi’s drug activities and violent acts.
In particular, Mahdi wished to use their testimony to contradict
Hooker’s assertion that, before he “started hanging out with the
Mahdis” in 1998, he “did not sell drugs or . . . ever shoot
anyone,” 5/27am Tr. 84, and thereby to impeach Hooker’s
credibility. According to Mahdi’s counsel, both Tyler and
Washington could testify that they witnessed Hooker selling
 18

drugs and carrying a gun between 1995 and 1997 when the three
were in high school together.12
Tyler invoked his Fifth Amendment right against self-
incrimination and the court appropriately excluded his
testimony based thereon, noting his “exposure on more than one
front,” 7/14am Tr. 95—namely, that he faced two pending
criminal prosecutions and a grand jury investigation for his
participation in a drug conspiracy and he appeared in
government videotapes, admitted into evidence, showing him
purchasing crack and marijuana from Hamilton. The court
further declined to require Tyler to testify but “limit the
government’s right of cross-examination in some fashion”—to
accommodate both Mahdi’s Sixth Amendment right and Tyler’s
Fifth Amendment right—because the testimony sought from
Tyler was not exculpatory. 7/14am Tr. 95-96. The court’s
decision was not an abuse of discretion.
In United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995),
we held in similar circumstances that in order to warrant
requiring a witness to testify notwithstanding invocation of his
Fifth Amendment right, the testimony sought must have the
potential to be “ ‘exculpatory testimony exonerating some of
the alleged participants’ ” and not be testimony such as the
defendant sought that simply “provided limited contradiction of
testimony” by a government witness. 52 F.3d at 1110

12
Mahdi’s counsel proffered that Tyler would testify that he
observed Hooker “with drugs on him”—cocaine which Tyler
“believed . . . to be crack cocaine”—“in small ziplock bags” and “with
guns, including in school.” 7/14am Tr. 68-69. Mahdi’s counsel was
unable to proffer in any detail what testimony Washington would give
as neither she nor her investigators had personally spoken with
Washington. She was informed by Washington’s brother, however,
that Washington could testify to Hooker selling drugs and possessing
guns while in high school.
 19

(emphasis in original). Here, as in Edmond, the testimony
sought is merely contradictory, undercutting Hooker’s claim he
was law-abiding before meeting Mahdi; it did not have the
potential to exonerate Mahdi as is required under Edmond.
As for Washington, at the time of the trial he was an inmate
at the Federal Correctional Institution in Estill, S.C. On July 10,
2003, Mahdi’s counsel, suspecting Tyler might not be available
to testify, sought a writ to transport Washington to testify at the
trial. The court was advised by the U.S. Marshals Service that
it would take 30 days to procure his presence and the court
denied Mahdi’s motion to continue the trial until then. The
court did not abuse its discretion in declining to continue the
trial for a full month so near to the lengthy trial’s close—on the
chance Washington would provide non-exonerating testimony
of so little probative value. See supra note 12; United States v.
Gantt, 140 F.3d 249, 256 (D.C. Cir. 1998) (continuance ruling
reviewed only to determine whether judge “clearly abused his
discretion” in weighing various factors, including length of
requested delay and whether denying continuance will “result
in identifiable prejudice to defendant’s case, and if so, whether
this prejudice is of a material or substantial nature”) (internal
quotation omitted).
Curtis Reed
Fourth, Mahdi asserts the court erroneously “refused to
delay the trial” to secure the attendance of Curtis Reed to
testify. Appellant’s Br. 35. Mahdi sought Reed’s testimony to
contradict Hooker’s assertion that after one of the charged
shootings, Mahdi told Hooker he had hidden the murder weapon
in Reed’s house. According to Mahdi’s counsel, Reed would
testify he had never seen Mahdi with a gun and would not allow
anyone to bring a gun into his house and no one had ever done
so. 7/15am Tr. 10-11. Because Reed was attending school in
Tennessee, the court issued a subpoena which the Marshals
Service attempted unsuccessfully to serve at the Tennessee
 20

address Mahdi’s counsel had provided. The Marshals Service
so informed the court and the defense said nothing further on
the matter. We cannot say the court abused its discretion when
it failed sua sponte to order a continuance Mahdi’s counsel did
not request.
Finally, we note that the testimony of Gates, Tyler,
Washington and Reed would at best have contradicted minor
points made by two government witnesses. Given the
overwhelming unimpeached evidence of Mahdi’s guilt provided
by numerous witnesses, wiretaps and videotapes, exclusion of
these four witnesses’ impeachment testimony was, if error at all,
harmless under Kotteakos, 328 U.S. at 776.
D. VICAR Counts
Next, Mahdi challenges the VICAR prosecution on three
grounds. We find none of them persuasive.
First, Mahdi asserts that VICAR is facially unconstitutional
as it violates the Commerce Clause. We have already rejected
this argument in United States v. Carson, 455 F.3d 336 (D.C.
Cir. 2006). As we explained there:
[I]t is impossible to see how a statute regulating
conduct within the District of Columbia could exceed
congressional authority under the Commerce Clause.
As in the U.S. Territories, Congress has plenary
authority in the District of Columbia. See U.S. CONST.
art. I, § 8, cl. 17; U.S. CONST. art. IV, § 3, cl. 2; see
also, e.g., Binns v. United States, 194 U.S. 486, 491,
24 S.Ct. 816, 48 L.Ed. 1087 (1904). Within the
District, Congress did not need to rely on its
Commerce Clause authority. Even if there were some
doubt about § 1959’s constitutionality outside the
District of Columbia, “we need not find the language
of [§ 1959] constitutional in all its possible
applications in order to uphold its facial
 21

constitutionality.” Griffin v. Breckenridge, 403 U.S.
88, 104, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
Carson, 455 F.3d at 368 (footnote omitted). Our analysis in
Carson remains both correct and controlling. See Nat’l Inst. of
Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 682 (D.C.
Cir. 2008) (“We are, of course, bound to follow circuit
precedent absent contrary authority from an en banc court or the
Supreme Court.”) (internal quotations and alterations omitted).
Second, Mahdi contends VICAR is unconstitutional as
applied because “[e]ven if some criminal acts, such as murder
for hire, may substantially affect interstate commerce and could
be prosecuted under VICAR, the violent crimes at issue here are
unrelated to interstate commercial activity.” Appellant’s Br. 42
(citing United States v. Garcia, 68 F. Supp. 2d 802 (E.D. Mich.
1999)). As we just explained, however, under Carson, the
Commerce Clause is simply irrelevant to the VICAR statute as
applied in the District.
Third, Mahdi argues the VICAR prosecution in this case
violates the Department of Justice VICAR prosecution manual
which states:
In deciding whether to approve a prosecution under
Section 1959, the Organized Crime and Racketeering
Section will analyze the prosecution memorandum and
proposed indictment to determine whether there is a
legitimate reason the offense cannot or should not be
prosecuted by state or local authorities. For example,
federal prosecution may be appropriate where local
authorities do not have the resources to prosecute,
where local authorities are reasonably believed to be
corrupt, where local authorities have requested federal
participation, or where the offense is closely related to
a federal investigation or prosecution. A prosecution
 22

will not be authorized over the objection of local
authorities in the absence of a compelling reason.
Violent Crimes in Aid of Racketeering–18 U.S.C. § 1959: A
Manual for Federal Prosecutors at 3-4 (Dec. 2006). The gist of
Mahdi’s argument is that because the U.S. Attorney prosecutes
all crimes in the District, there is no distinction between federal
and local authorities to justify prosecuting under VICAR rather
than under other federal or D.C. statutes. The manual itself,
however, specifically provides that its “policies and procedures”
are “internal Department of Justice policies and guidance only”
and “are not intended to, do not, and may not be relied upon to,
create any right, substantive or procedural, enforceable at law
by any party in any matter civil or criminal. Nor are any
limitations [t]hereby placed on otherwise lawful litigative
prerogatives of the Department of Justice.” Id at i.
Accordingly, Mahdi’s argument is foreclosed. See In re Grand
Jury Subpoena (Judith Miller), 438 F.3d 1141, 1152-53 (D.C.
Cir. 2006) (upholding reservation in U.S. Attorney’s Manual
guidelines which “expressly state[s] that they do ‘not create or
recognize any legally enforceable right in any person’ ”
(quoting 28 C.F.R. § 50.10(n)).
E. Sentence
Finally, Mahdi contends that, if his convictions are
affirmed, his sentence should be remanded for two reasons: (1)
many of the D.C. counts merge with the corresponding federal
counts; and (2) under United States v. Booker, 543 U.S. 220
(2005), the district court erroneously made factual findings
exclusively within the jury’s province and applied the U.S.
Sentencing Guidelines as mandatory. We address his two
grounds in reverse order.
First, as to his Booker argument, the government concedes
that there is “no indication that the court”—sentencing pre-
Booker—“treated the Guidelines as anything but mandatory.”
 23

Appellee’s Br. 74. Nonetheless, “[b]ecause [Mahdi] did not
preserve [his] challenge to this error before the trial court, we
review the district court’s decision under the plain error
standard set forth in [United States v. ]Coles,” 403 F.3d 764
(D.C. Cir. 2005). Carson, 455 F.3d at 383. “Applying this
standard, we must determine whether the district court’s error
affected the defendant’s ‘substantial rights in a material way,’ ”
that is, “ ‘whether there would have been a materially different
result, more favorable to the defendant, had the sentence been
imposed in accordance with the post-Booker sentencing
regime.’ ” Id. (quoting Coles, 403 F.3d at 767) (footnote
omitted). The answer is no and this case is counted among
those in which we can “ ‘be confident that [the] defendant has
suffered no prejudice’ ” and therefore “affirm the sentence.” Id.
(quoting Coles, 403 F.3d at 769).
As in Carson, “[n]o remand is needed . . . because
[VICAR], 18 U.S.C. § 1959(a)(1), and not the Guidelines,
mandates that [Mahdi] receive[] a life sentence for [his VICAR]
conviction[],” id. at 384—in this case, VICAR requires a
minimum sentence of life for the murder of Curtis Hattley
(Count 12). See 18 U.S.C. § 1959(a)(1) (defendant “shall be
punished—(1) for murder, by death or life imprisonment, or a
fine under this title, or both.”).13 In addition, the consecutive 7-
and 25-year sentences imposed for Counts 27-32 are mandatory
under 18 U.S.C. § 924(c). Accordingly a remand would not
benefit Mahdi.

13
In Carson, we, “like the Second Circuit, reach[ed] the common
sense conclusion that the VICAR statute does not permit a fine to be
levied in lieu of imprisonment or death.” 455 F.3d at 385 n.44 (citing
United States v. James, 239 F.3d 120, 127 (2d Cir. 2000)). We note
that, even without the VICAR murder conviction, Mahdi would face
a mandatory statutory minimum sentence of 132 years for his six
firearms convictions under 18 U.S.C. § 924(c)(1)(A)(ii), (C)(i).
 24

Second, we need not decide Mahdi’s merger argument here
because even if there is a merger, his D.C. convictions will
merge into the federal counts and his federal mandatory
statutory sentences will not change. See United States v. Dale,
991 F.2d 819, 859 (D.C. Cir. 1993) (per curiam); United States
v. Boyd, 131 F.3d 951, 954-55 (11th Cir. 1997) (“The proper
remedy for convictions on both greater and lesser included
offenses is to vacate the conviction and the sentence of the
lesser included offense.”). In any event, as we concluded supra
Part II.A, Mahdi failed to establish that any of the counts of
conviction is multiplicitous and he adds no new arguments here.
Finally, the government concedes that a limited
resentencing remand is appropriate because six convictions for
simple distribution of, or PWID, drugs (Counts 38-43) merge
into the analogous convictions for distribution of, or PWID,
drugs within 1,000 feet of a school (Counts 44-49).

For the foregoing reasons, Mahdi’s convictions and
sentences are affirmed except that we vacate Counts 38-43 and
remand for limited resentencing to reflect the merger of Counts
38-43 into Counts 44-49. See United States v. Whren, 111 F.3d
956, 959-60 (D.C. Cir. 1997) (“[U]nless the court of appeals
expressly directs otherwise, the district court may consider only
such new arguments or new facts as are made newly relevant by
the court of appeals' decision—whether by the reasoning or by
the result.”), cert. denied, 522 U.S. 1119 (1998).
So ordered.