Case Information
*1 Before ANDERSON, BARKETT and BOWMAN , Circuit Judges. [*]
PER CURIAM:
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This case concerns a criminal endeavor led by Gezim Arapi, in which truckloads and trailer-loads of cigarettes would be stolen prior to the time the taxes were paid on them and tax stamps affixed. The organization would then affix counterfeit tax stamps and resell the cigarettes. Following a jury trial, co- defendant Akbar Noorani was convicted of one count of conspiracy and two counts of dealing in contraband cigarettes. Co-defendant Albert Bakiaj was convicted of [1]
one count of conspiracy, two counts of transporting counterfeit tax stamps in interstate commerce, and three counts of possessing counterfeit tax stamps. Each [2] defendant now appeals his conviction and sentence. [3]
On appeal, Noorani argues that the district court erred in the following ways: (1) by allowing hearsay evidence inadmissible under Rule 404(b); (2) by allowing *3 a government agent to testify to the law of conspiracy; (3) by allowing hearsay testimony of a confidential informant who was not alleged to be a co-conspirator; (4) by refusing to order the disclosure of exculpatory evidence, including grand jury testimony; (5) by allowing an exhibit to be referenced without being entered in evidence; (6) by allowing the government to refer to Noorani’s prior three-year probation for a prior crime; (7) by refusing Noorani a duress jury instruction; (8) by finding Noorani responsible for 354 cases of cigarettes when the jury found him responsible for 300 cases in a special verdict interrogatory; (9) by ordering forfeiture when it lacked the authority to do so, and in the event that it did have the authority, by incorrectly calculating the amount subject to forfeiture; and (10) by committing errors the cumulative effect of which denied Noorani a fair trial.
On appeal, Bakiaj argues that the district court erred in the following ways:
(1) by denying Bakiaj’s motion for mistrial after the prosecutor allegedly
commented on his right to remain silent; (2) by refusing to order the government to
disclose exculpatory evidence, including grand jury testimony, reports, and ATF
agent notes; (3) by allowing a government agent to testify as to the law of
conspiracy; (4) by allowing the hearsay testimony of a confidential informant who
was not alleged to be a co-conspirator; (5) by allowing an exhibit to be repeatedly
referenced by the government when the exhibit was never entered in evidence; (6)
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by declining to dismiss the indictment for failure to allege that the offending
conduct affected interstate commerce and failure to allege the threshold amount of
money required for federal jurisdiction; (7) by refusing a duress instruction; (8) by
committing errors the cumulative effect of which deprived Bakiaj of a fair trial;
and (9) by sentencing Bakiaj in violation of United States v. Booker,
I. Sufficiency of the Indictment
Bakiaj argues, for the first time on appeal, that the indictment should have been dismissed because it failed to allege (1) that the offending conduct affected interstate commerce; and (2) the threshold amount of money required for federal subject-matter jurisdiction. We find no merit in this argument.
Count Two of the indictment alleged that Bakiaj had conspired, among other
things, “to knowingly and intentionally receive, possess, store and dispose of
goods, wares and merchandise of the value of $5000 or more, which had crossed a
state boundary after being unlawfully converted and taken, in violation of 18
U.S.C. § 2315.” Counts Ten, Eleven, Twelve, Fourteen, and Fifteen alleged that
Bakiaj either had “receive[d] and possess[ed] . . . altered and counterfeited tax
stamps, such tax stamps moving as, and being a part of, and constituting interstate
commerce . . . in violation of 18 U.S.C. §§ 2315, 21 and 2,” or had transported or
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caused to be transported “in interstate commerce from Florida to Ohio, falsely
made, forged, altered and counterfeited tax stamps . . . in violation of 18 U.S.C.
§§ 2314, 21 and 2.” These allegations satisfy the requirements of United States v.
Lopez,
II. Brady Violation
Both Noorani and Bakiaj argue that the district court committed reversible
error in declining to order the Government to turn over exculpatory and
impeachment evidence under Brady v. Maryland,
III. Evidentiary Objections
Noorani and Bakiaj raise several objections to the evidentiary rulings of the
district court, which we review for abuse of discretion. See United States v.
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Magluta,
IV. Bakiaj’s Motion for Mistrial
Bakiaj argues that the district court should have granted his motion for
mistrial based on comments made by the prosecutor about Bakiaj’s post-arrest
silence. Having reviewed the record, we find no evidence of harm or prejudice,
particularly because the court struck the relevant question and instructed the jury to
disregard it. We presume a jury to follow the court’s instructions unless a party
proves the contrary. See United States v. Shenberg,
V. Jury Instruction
Noorani and Bakiaj argue that the district court erred in denying their
request for their proposed jury instruction on the defense of duress. We review the
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district court’s refusal to include a defendant’s requested jury instruction for an
abuse of discretion. See Untied States v. Sirang,
VI. Cumulative Error
Both Noorani and Bakiaj argue that the cumulative effect of the asserted trial errors warrants a new trial. As we have explained here, none of the errors committed during the course of their trial amounted to harmful error.
VII. Sentencing
Each defendant appeals his sentence. The government concedes that, under Booker, the district court erred in sentencing Bakiaj. Accordingly, we vacate Bakiaj’s sentence and remand for resentencing.
Noorani only challenges the district court’s sentence with respect to
restitution and forfeiture. Given that this Circuit has held that Booker and Blakely
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are inapplicable to restitution orders, see United States v. Williams,
Accordingly, we AFFIRM the conviction and sentence of Akbar Noorani.
We AFFIRM the conviction of Albert Bakiaj, VACATE his sentence, and REMAND for resentencing.
Notes
[*] Honorable Pasco M. Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting by designation.
[1] Noorani was convicted of (1) conspiracy to traffic in contraband cigarettes, in violation of 18 U.S.C. § 371 (Count Two); and (2) two counts of trafficking in contraband cigarettes, in violation of 18 U.S.C. § 2342(a) (Counts Six and Twenty). The district court sentenced Noorani to thirty-three months’ imprisonment and three years’ supervised release on each count, to run concurrently, and ordered him to pay restitution in the amount of $72,003.60. Noorani was also required to forfeit any and all proceeds traceable to the conspiracy offense alleged in Count Two, pursuant to 18 U.S.C. §§ 981(a)(1)(C) and 1961(1), and 28 U.S.C. § 2461(c), thus the court entered a final order of forfeiture for money judgment in the amount of $515,494.80.
[2] Bakiaj was convicted of (1) conspiracy to traffic in contraband cigarettes, in violation of 18 U.S.C. § 371 (Count Two); (2) three counts of possession of counterfeit state tax stamps, in violation of 18 U.S.C. § 2315 (Count Ten, Count Twelve, Count Fifteen); and (3) two counts of transportation of counterfeit state tax stamps, in violation of 18 U.S.C. § 2314 (Count Eleven, Count Fourteen). Bakiaj was sentenced to thirty-six months’ imprisonment and three years’ supervised release as to each count, and was ordered to pay restitution in the amount of $4,125.
[3] Co-Defendant Gezim Selgjekaj also appealed, but the Government conceded that the district court committed reversible Booker error when it sentenced Selgjekaj. Accordingly, we vacated Selgjekaj’s sentence and remanded for resentencing.