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United States v. Anwar

United States Court of Appeals, Eighth Circuit

January 24, 2018

United States of America Plaintiff- Appellee
Muhammad Anwar Defendant-Appellant

          Submitted: September 21, 2017

         Appeal from United States District Court for the Northern District of Iowa - Waterloo

          Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.

          SMITH, Chief Judge.

         A jury 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[1] 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.

         I. Background

         "We 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 Khan.

         Beginning 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.

         Anwar's 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.[2] 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.

         In 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 Saeed.

         CIDTF 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 products.

         Law 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.

         In 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.

         After 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.[3] 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.

         In 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 wireless store.

          In 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) agent[4]that 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.

         At 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.

         II. Discussion

          Anwar 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.

         A. Sufficiency of the Evidence

          We 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 omitted).

         1. Conspiracy To Distribute a Controlled Substance or Controlled Substance Analogue

         To 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. ยง 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 ...

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