Submitted: September 21, 2017
from United States District Court for the Northern District
of Iowa - Waterloo
SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
convicted Muhammad Anwar of: (1) conspiracy to distribute
controlled substances and controlled substance analogues, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c),
and 846, and (2) conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h). The district
court sentenced Anwar to 240 months'
imprisonment on the first count and 60 months on the second
count, to run consecutively, followed by three years of
supervised release. Anwar appeals the jury verdict and his
sentence. We affirm.
recite the facts in the light most favorable to the
jury's verdict." United States v.
Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017)
(quoting United States v. Stevens, 439 F.3d 983, 986
(8th Cir. 2006)). Anwar agreed with Ahmad Saeed and another
person in 2012 to distribute synthetic cannabinoid products.
Anwar and Saeed knew these products, which contained both
controlled substances and controlled substance analogues,
would be sold for human consumption. Anwar also agreed to
distribute synthetic cathinones ("bath salts"),
which contained controlled substance analogues intended for
human consumption. The agreement ended about March of 2014.
Anwar and Saeed's main source for the controlled
substances was Mohammed Saleem. Saeed began dealing with
Saleem as early as 2009, when Saleem supplied Saeed with
synthetic cannabinoid products. Saeed received and
distributed thousands of bags of synthetic cannabinoid
products per week. Anwar became Saeed's partner in May
2012, although Saeed remained the sole person to deal with
Saleem at the beginning of the partnership. Anwar and Saeed
also obtained synthetic cannabinoid products from Shakeel
in late 2013, Anwar dealt directly with the wholesalers. On
at least five occasions, he purchased approximately $8, 000
to $9, 000 of synthetic cannabinoid products at a time, which
he received via FedEx. Anwar supplied the synthetic drug
products primarily to convenience stores in the Waterloo,
Cedar Rapids, Cambridge, and Des Moines, Iowa areas. At its
peak, Saleem estimated that the Anwar-Saeed enterprise sold
between $600, 000 to $800, 000 of products to consumers per
month. Store owners paid Anwar and Saeed by cash, check, or
money order. At Anwar and Saeed's request, persons paying
via check or money order-up to $1, 000 each-always left the
"pay to" line blank, and they often denoted a
"loan" in the "memo" line. The checks and
money orders then could be used much in the same way as cash.
activities coincided with a national rise in synthetic
cannabinoid abuse. In response, the Drug Enforcement
Administration (DEA) conducted frequent drug raids targeting
both manufacturers and sellers. Not surprisingly, several
store owners returned products to Anwar and Saeed. Anwar
addressed at least one store owner's concern with
assurances that the products were legal; he also gave the
store owner a lab report purporting to prove that the
products were legal. However, Anwar advised another store owner
to sell only to people he knew and to hide the products
behind the counter from the general public.
August 2012, the Central Iowa Drug Task Force (CIDTF) began a
series of investigations into synthetic
cannabinoid-containing products. CIDTF conducted controlled
buys from a Cambridge convenience store. Laboratory analyses
revealed the presence of XLR-11 and UR-144, both synthetic
cannabinoids, in the incense packages. CIDTF then received
and executed a search warrant, which led to the seizure of
numerous packages of synthetic cannabinoid products from the
store. Some of the packages contained labels that read
"100% cannabinoid free/DEA compliant." The store
manager identified Anwar as the supplier of the products. The
manager also informed law enforcement officers that Anwar had
also offered him a "bath salt" product called
"Pump It." A confidential informant (CI) also
purchased Pump It at a different convenience store in October
2012; this store also received the bath salt from Anwar or
conducted three controlled buys in June 2013 at a convenience
store and an adjoining mobile wireless store in Waterloo that
Anwar supplied. On two occasions, the CI purchased synthetic
cannabinoid products at both stores, where the products were
stored behind the counter and out of the public view.
Laboratory analyses showed the presence of XLR-11. On the
third occasion, the CI purchased bath salts packaged as
"White Angel" and "Blue." Either Anwar or
Saeed supplied these controlled substances to the stores.
Between December 2012 and June 2013, they delivered synthetic
cannabinoid products to the mobile wireless store three
times, each time supplying at least 500 packages of the
enforcement then executed search warrants at the Waterloo
mobile wireless store, convenience store, and two residences.
The search led to seizures of nearly 2, 000 grams of
synthetic cannabinoid products and almost 30 grams of bath
salts from the locations. Following the raid, the two store
managers temporarily ceased drug operations but soon resumed
sales. Anwar never terminated his drug wholesale enterprise.
CIDTF again conducted control buys at the stores in December
2013 and February 2014. Officers executed a search warrant in
March 2014, where they seized nearly 90 grams of bath salts.
The prosecution of this drug operation resulted in
convictions and prison sentences for Earl and Mary Ramos.
United States v. Ramos, 814 F.3d 910 (8th Cir.
2016). The Ramoses purchased the synthetic drugs from Saeed
and Anwar. Earl Ramos paid his suppliers with money orders,
each up to $1, 000. Ramos's internal records showed when
and to whom the money orders were paid, but the money orders
themselves never identified Anwar as the payee.
addition to supplying to the convenience stores, Anwar also
opened a liquor store in a Des Moines suburb. From there, he
supplied synthetic cannabinoid products to liquor and
convenience stores in the Des Moines area. Anwar hired Erika
Romar to work at the liquor store. He instructed Romar that
each week the liquor store would receive two large FedEx
boxes. He directed her to place the shipment in the back
room, shut the door, and call him immediately. He later told
Romar that the boxes contained synthetic cannabinoid
products. Eventually, Anwar assigned Romar the task of
dividing the products into smaller parcels for the customer
stores. Anwar then delivered these parcels to his customers.
Romar had worked for several months at the liquor store,
Anwar transferred her to a Des Moines mobile wireless store,
where she joined her then-boyfriend, Randy
Tyrell. Anwar then had the boxes of synthetic
cannabinoids shipped to the wireless store instead of the
liquor store, and Romar performed the same duty as she had
previously-receiving the boxes and parsing out the products
to amounts the customers specified. Some of the customers
came to the store to pick up their synthetic cannabinoid
orders and paid Romar. Anwar, accompanied by Tyrell, also
delivered to nine or ten other businesses in the surrounding
area. At one point, Anwar traveled to Pakistan; during his
time out of the country, Romar called Anwar to get
instructions regarding product deliveries. Anwar also
arranged for several individuals-his wife, his daughters,
Romar and Tyrell, and two others-to help repackage old
products that were not selling well into new packages under
brand names that sold well.
March 2014, law enforcement officers executed a search
warrant of the mobile wireless store. They seized packages
that later tested positive for the synthetic cannabinoids
XLR-11, UR-144, PB-22, and AB-FUBINACA. The day after the
search, Anwar told one of his customers that he had 500
"pieces" with illegal chemicals taken from the
September 2015, a grand jury returned a superseding
indictment, charging Anwar and Saeed with conspiracy to
distribute controlled substances and controlled substance
analogues and conspiracy to launder money. Saeed pleaded
guilty to both counts. Saeed denied ever selling bath salts.
Anwar did not plead guilty, and his case proceeded to trial.
Prior to the trial, Anwar gave a proffer interview with the
government. He admitted to the interviewing Internal Revenue
Service (IRS) agentthat he had always harbored suspicions
about the legality of the products that he sold, in part,
because these products cost much more than other similarly
marketed incense products. Anwar also admitted that he knew
that people purchased these products to smoke or to ingest.
Further, he agreed with the IRS agent that he remained
willfully blind to the nature of the substances that he sold.
On the eve of Anwar's trial, Saeed's attorney
contacted the government by e-mail, informing the prosecution
that Saeed now admitted to selling bath salts, but he stopped
selling the products in approximately March 2012. The
government did not inform Anwar of Saeed's admission.
trial, Anwar moved for a mistrial, alleging that a government
witness made an improper comment. He also orally moved for a
judgment of acquittal. The district court denied both
motions. The jury found Anwar guilty on both conspiracy
counts. Anwar moved for a new trial, which the district court
denied. At sentencing, Anwar objected to the district
court's calculation of his base offense level and to the
court applying two sentencing enhancements. The court
overruled Anwar's objections. Anwar's total offense
level of 43 and criminal history category of II yielded a
Guidelines recommendation of life imprisonment. However,
because the statutory maximum for each of Anwar's
convicted offenses was 20 years' imprisonment,
see 21 U.S.C. § 841(b)(1)(C); 18 U.S.C. §
1956(h), his Guidelines range was 480 months'
imprisonment, see U.S.S.G. § 5G1.2(b). The
district court applied a downward variance to the Guidelines
recommendation and sentenced Anwar to 300 months'
imprisonment-240 months' imprisonment on the drug
conspiracy conviction and 60 months on the conspiracy
conviction, to run consecutively.
raises four issues on appeal. First, he argues that his
conviction is not supported by sufficient evidence. Second,
Anwar contends that the district court erred in denying his
motion for a new trial based on an improper government
witness statement. Third, he alleges that the district court
procedurally erred in calculating his total offense level
under the Sentencing Guidelines. Last, Anwar asserts that his
sentence was substantively unreasonable.
Sufficiency of the Evidence
first address Anwar's argument that the government failed
to prove both charges. "We review the sufficiency of the
evidence de novo, viewing evidence in the light most
favorable to the government, resolving conflicts in the
government's favor, and accepting all reasonable
inferences that support the verdict." United States
v. Guenther, 470 F.3d 745, 747 (8th Cir. 2006) (quoting
United States v. Washington, 318 F.3d 845, 852 (8th
Cir. 2003)). "[I]t is axiomatic that [we do] not pass
upon the credibility of witnesses or the weight to be given
their testimony . . . ." United States v.
Spight, 817 F.3d 1099, 1102 (8th Cir. 2016) (quoting
United States v. Goodale, 738 F.3d 917, 923 (8th
Cir. 2013)). Finally, "[t]he verdict will be upheld if
there is any interpretation of the evidence that could lead a
reasonable jury to convict." United States v.
Brandon, 521 F.3d 1019, 1025 (8th Cir. 2008) (citation
Conspiracy To Distribute a Controlled Substance or
Controlled Substance Analogue
convict under 21 U.S.C. § 841(a), "the government
had to prove beyond reasonable doubt (1) knowledge; (2)
possession; and (3) intent to distribute the controlled
substance." United States v. Noibi, 780 F.2d
1419, 1421 (8th Cir. 1986) (citing 21 U.S.C. § 841(a)).
Anwar disputes only the knowledge element of the crime. He
claims that the government did not prove that he knowingly
sold controlled substances of any kind. He argues that he
could not have known the ...