United States v. Ali

38 F. App'x 220
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 26, 2002
DocketNo. 99-4086
StatusPublished
Cited by2 cases

This text of 38 F. App'x 220 (United States v. Ali) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ali, 38 F. App'x 220 (6th Cir. 2002).

Opinion

PER CURIAM.

The defendant, Danish Ah, was convicted of two counts of conspiring to engage in cocaine trafficking and was sentenced to concurrent prison terms of 195 months. On appeal, he raises numerous issues, including allegations of error by the district court in joining defendants and offenses for trial, in evaluating the sufficiency of the evidence, in admitting certain opinion testimony, in refusing to allow the defendant to reopen his proofs, in allowing prejudicial cross-examination of character witnesses, and in determining the appropriate sentence to be imposed. Because we conclude that none of the issues raised by Ah involves reversible error, we affirm the judgment of the district court in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Danish Ah was indicted, along with 49 other individuals, for his participation in cocaine distribution activities in the Cleveland, Ohio, area. The defendant was named in four counts of the 98-count charging instrument—two counts of conspiracy and two counts of using a telephone to commit a felony drug offense. Only three of the 50 co-defendants, Ah, Michael Hawkins, and Andre Lindsay, were ultimately tried together, however.

At that trial, the government presented numerous witnesses to establish the existence of two distinct cocaine distribution conspiracies, one that operated between approximately November 1997 and July 15, 1998 (count 20 of the indictment) and one beginning as early as the fall of 1994 and continuing through May 1998 (count 93 of the indictment). To establish the defendant’s connection with the earlier conspiracy (count 93), the prosecution relied heavily upon the testimony of Enrique Alberto Isaza, a Colombian national. Isa-za testified that he often traveled from the New York/Newark area to Cleveland, Ohio, on behalf of Maria Teresa Serna, another Colombian who had ties with cocaine producers in her native country. According to Isaza, Serna introduced him to Ali, to whom he eventually made a number of large cocaine sales. Although Isaza could not remember “with precision” all the sales he and Serna made to Ah, he did [223]*223recall that “the first time we delivered three, three kilos of cocaine. And there were two times when we delivered five on each occasion; on one occasion four; two deliveries of ten each; one delivery of 14.” In exchange, Ali paid the Colombians monetary amounts ranging from $10,000 to $400,000.

On some of their business trips to Cleveland, Isaza and Serna would stay at area hotels. On other occasions, however, the couple would stay at an apartment furnished them by Ali. Isaza also offered other evidence of the drug kingpins’ relationship with the defendant, including information on the special code number assigned to contacts with Ali, on the methods by which Isaza and Serna communicated with the defendant, and on drugs “fronted” to Ali and the defendant’s repayment history.

Much of the evidence regarding Ali’s participation in the count 20 conspiracy was provided by co-conspirator Joseph Adams and was corroborated by the introduction of tapes and transcripts of telephone conversations between Adams and Ali. For instance, the government established by those means that the defendant and Adams sold each other cocaine in amounts ranging from four-and-one-half ounces to a kilogram at a time during the winter of 1997-1998. The testimony further established that the defendant volunteered to and actually did introduce Adams to his Colombian “contacts” in exchange for “some of the profits that [Adams] made,” and that on at least one occasion, Ali telephoned Adams to warn him that federal agents were making arrests around the area and to inform him that he (Ali) intended to stop selling cocaine for a short time as a result.

In light of the damning evidence against Ali, the jury convicted the defendant of the conspiracies alleged in counts 20 and 93 of the indictment. Those same fact-finders, however, voted to acquit Ali of the two charges involving the use of a communications device to commit a drug felony. After a sentencing hearing, the district judge then ordered Ali to serve 195 months in prison as a criminal history category II, offense level 34 offender. Ali now appeals.

DISCUSSION

I. Joinder of Offenses and Defendants

In his first issue of appeal, Ali contends that the district court should have granted his motion for severance of offenses and defendants at trial because much of the evidence adduced did not apply to him, thus prejudicing the presentation of his case. Although Ali raised this issue pretrial, he failed to renew the motion at the close of all the evidence. The allegation of error is thus not properly before us because, as we previously indicated in United States v. Swift, 809 F.2d 320, 323 (6th Cir.1987), “a severance motion will be deemed waived if it is not renewed at the end of the evidence.”

II. Sufficiency of the Evidence

Ali next claims that the evidence introduced at trial does not meet the constitutional standards necessary to support his convictions. Specifically, he contends that he was nothing more than a buyer or seller of cocaine on a large scale and, therefore, not acting as a co-conspirator. He further insists that he did not benefit from his transactions or from any agreement and that the incriminatory conversations between Adams and him that were intercepted by authorities are as consistent with discussions between independent actors as they are with co-conspirator dealings.

Our recitation of the evidence as set out above, however, demonstrates that there [224]*224existed a broad distribution agreement and that Ah was an active participant in that collective action, even to the extent of attempting to involve other individuals in the “organization.” We conclude that a rational trier of fact would be justified in finding Ah guilty beyond a reasonable doubt of the offenses charged in counts 20 and 93 of the relevant indictment, which is sufficient to satisfy the apphcable standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

III. Opinion Testimony of Special Agent Vogt

In another issue, Ah objects to the district court’s admission of certain testimony offered by the government’s initial witness at trial, Federal Bureau of Investigation Special Agent Stephen Vogt. The defendant now contends that Vogt improperly offered his opinion concerning the meaning of some of the telephone conversations intercepted and transcribed during the investigation of the conspiracy. According to the defense’s argument, such evidence purported to be expert opinion, but Vogt was not qualified, at the time of his testimony, to be anything other than a fact witness.

Ah is correct in asserting that this court has recognized that “there is a significant risk that the jury will be confused by the officer’s dual role” when a law enforcement official testifies in a single case as both a fact witness and an expert witness. See United States v. Thomas, 74 F.3d 676, 682 (6th Cir.1996), overruled on other grounds in Morales v. Am. Honda Motor Co., Inc.,

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Related

United States v. Roberts
316 F. App'x 388 (Sixth Circuit, 2008)
Ali v. United States
536 U.S. 915 (Supreme Court, 2002)

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Bluebook (online)
38 F. App'x 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ali-ca6-2002.