United States v. Sabil Mujahid

Opinion

FILED NOT FOR PUBLICATION JUN 08 2015

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-36173

Plaintiff - Appellee, D.C. Nos. 3:11-cv-00140-TMB 3:09-cr-00034-TMB- v. JDR-1 District of Alaska, SABIL M. MUJAHID, Anchorage

Defendant - Appellant. ORDER

Before: CANBY, BYBEE, and WATFORD, Circuit Judges.

The memorandum disposition in this case that was filed on May 26, 2015, is

amended as follows:

On page 3, lines 1-3, the sentence is amended to state: “Even if the

Witness’s credibility had been further undermined and substantive evidence of his

criminal activity had been presented, we are confident that the jury would have

convicted Mujahid, in light of the very strong evidence that he knowingly

possessed a firearm.” The amended disposition is submitted for filing along with

this order. With that amendment, the petition for panel rehearing is denied. No further

petitions shall be entertained. FILED NOT FOR PUBLICATION JUN 08 2015

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

Plaintiff - Appellee, D.C. Nos. 3:11-cv-00140-TMB 3:09-cr-00034-TMB- v. JDR-1

SABIL M. MUJAHID, AMENDED MEMORANDUM* Defendant - Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Argued and Submitted May 12, 2015 Anchorage, Alaska

Sabil Mujahid appeals from the district court’s order denying his 28 U.S.C.

§ 2255 motion, following his 2009 jury trial conviction for being a felon in

possession of a firearm. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

We review the district court’s denial of a 28 U.S.C. § 2255 motion and all

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. questions of law de novo. See United States v. Olsen, 704 F.3d 1172, 1178 (9th

Cir. 2013). We review the district court’s factual findings for clear error. See

United States v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). We affirm the

order of the district court.

Mujahid contends that the prosecutor violated Brady v. Maryland, 373 U.S.

83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by withholding

several pieces of evidence relating to a principal witness (“the Witness”), who was

called by the defense to testify after the government elected not to call him. His

testimony was largely but not entirely adverse to the defense. The evidence not

furnished by the prosecution related to ongoing investigations into the Witness’s

criminal and civil wrongdoing, his cooperation with the government’s

investigation of Mujahid, and his attempts to avoid prosecution in other matters in

exchange for his cooperation.

Even without making adjustments for the fact that it was Mujahid, not the

government, that put the Witness on the stand, we conclude that there was no

material violation of Brady or Giglio. There is no reasonable probability that the

outcome of the trial would have been different had the additional evidence been

disclosed. Using other evidence disclosed by the prosecutor, Mujahid was able

sufficiently to impeach the Witness, and the jury was instructed to view his

2 13-36173 testimony with caution. Even if the Witness’s credibility had been further

undermined and substantive evidence of his criminal activity had been presented,

we are confident that the jury would have convicted Mujahid, in light of the very

strong evidence that he knowingly possessed a firearm. Accordingly, despite the

government’s failure to disclose certain pieces of evidence, Mujahid received a

“trial resulting in a verdict worthy of confidence.” See Olsen, 704 F.3d at 1185

(internal quotation marks omitted).

Mujahid also contends that the prosecutor violated Napue v. Illinois, 360

U.S. 264 (1959), by failing to correct the Witness’s false testimony during trial

regarding whether the Witness used or purchased drugs, and whether he testified

with the expectation of leniency in matters beyond his pending ammunition case.

Under Ninth Circuit Rule 22-1(e), uncertified issues raised on appeal “will be

construed as a motion to expand the COA.” So construed, we grant the motion

because Mujahid has shown this issue to be debatable among reasonable jurists.

See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Nevertheless, upon thorough review of the record, we agree with the district court

that Mujahid failed to prove that the testimony in issue was material.

3 13-36173 The Witness’s denial of purchase of drugs arose in questioning about his

personal use of prescription and other drugs. There is no showing that the Witness

was personally using other drugs or that the prosecution knew he was doing so.

The prosecution cross-examined the Witness on the facts that he had been

indicted on the charge of purchasing ammunition for Mujahid, that he had been

granted immunity for his testimony, and that he had been told that if he testified

falsely the immunity would not protect him. The prosecutor’s ensuing question

was whether the “whole idea” of sitting down to talk with the prosecution in that

discussion had been to influence the government’s recommendation on his

sentence in the ammunition case. But the Witness’s affirmative answer did not

create any reasonable likelihood of an effect on the verdict, or deprive Mujahid of

a fair trial. See United States v. Rodriguez, 766 F.3d 970, 990 (9th Cir. 2014).

AFFIRMED.

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