United States v. Fazullah Khan
20-1223
| 6th Cir. | Sep 3, 2021Background
- FBI investigated public-works supervisor Steve Hohensee after he cooperated; recordings and wiretaps captured extensive communications between defendant Fazal (Fazullah) Khan and Hohensee.
- Recordings and video showed Khan soliciting and arranging to pay bribes to obtain Washington Township engineering contracts and related benefits (a $10,000 cash envelope to Supervisor Dan O’Leary; $1,000 cash and an all‑expense fishing trip for Hohensee; and an offer to give Hohensee a secret interest in a 105‑acre parcel contingent on getting water access).
- Khan conceded the conduct but asserted an entrapment defense at trial (claiming unrecorded threats/pressure induced him).
- A jury convicted Khan on four counts under 18 U.S.C. § 666; district court calculated Guidelines range 151–188 months, varied downward, and sentenced him to 132 months.
- On appeal Khan challenged (1) admission of FBI agent testimony about sources implicating him in other uncharged briberies (hearsay and Confrontation Clause), (2) a guilt‑assuming hypothetical to a character witness, (3) testimony about other prosecuted contractors (guilt‑by‑association), (4) loss calculation at sentencing, and (5) ineffective assistance for failing to preserve objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Agent Vose testimony about sources implicating Khan in uncharged briberies (hearsay / Confrontation Clause) | Government: Vose’s testimony was permitted to correct a misleading impression opened by Khan on cross (not improper hearsay). | Khan: Testimony was hearsay and testimonial; admission violated Rule 801 and the Sixth Amendment. | Court: Allowing rebuttal was within trial court discretion for hearsay; Confrontation Clause error, if any, was harmless — recordings showed predisposition and lack of government inducement. |
| Guilt‑assuming hypothetical to character witness (Romano) | Government: Question was proper cross to test credibility and was harmless because Khan conceded the conduct shown in the video. | Khan: Hypothetical improperly asked witness to assume his guilt, undermining presumption of innocence. | Court: Plain‑error standard; even if error, harmless because Khan admitted video conduct and defense was entrapment, so outcome unaffected. |
| Testimony that many other contractors were prosecuted/convicted (guilt‑by‑association) | Government: Redirect was permissible to rebut defense suggestion that payers are typically treated as victims; testimony was relevant and not unduly prejudicial. | Khan: Testimony was irrelevant and risked guilt by association. | Court: No abuse of discretion — defense opened the door; testimony rebutted implication of unfair outlier prosecution without implying Khan’s guilt by association. |
| Sentencing loss calculation and related ineffective assistance claim | Government: District court reasonably estimated loss using comparable contract billing and two years of potential contract, within permissible range; counsel’s omissions did not prejudice. | Khan: Loss should be limited to actual bribe amounts or lower profit estimates; second year projection was speculative; counsel erred by not preserving objections. | Court: Loss estimate was not clearly erroneous; sentence reasonable; even assuming deficient counsel, Khan cannot show Strickland prejudice, so IAC fails. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars testimonial out‑of‑court statements absent prior cross‑examination)
- Mathews v. United States, 485 U.S. 58 (entrapment: government inducement requires more than opportunity)
- Khalil v. United States, 279 F.3d 358 (6th Cir.) (factors for assessing predisposition in entrapment defense)
- Cromer v. United States, 389 F.3d 662 (6th Cir.) (Confrontation Clause analysis re: statements made to authorities)
- Gray v. United States, 521 F.3d 514 (6th Cir.) (district court loss estimates reviewed for clear error; judge has discretion to make reasonable estimate)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance and prejudice)
- Gall v. United States, 552 U.S. 38 (sentencing reasonableness review and consideration of § 3553(a))
- Chance v. United States, 306 F.3d 356 (6th Cir.) (opening the door permits introduction of evidence to rebut false impression)