United States v. Shalhout

280 F.R.D. 223, 2012 WL 13675, 2012 U.S. Dist. LEXIS 979
CourtDistrict Court, Virgin Islands
DecidedJanuary 4, 2012
DocketCriminal No. 2010-53
StatusPublished

This text of 280 F.R.D. 223 (United States v. Shalhout) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shalhout, 280 F.R.D. 223, 2012 WL 13675, 2012 U.S. Dist. LEXIS 979 (vid 2012).

Opinion

MEMORANDUM OPINION

GÓMEZ, Chief Judge.

Before the Court is Jad Shalhout and Saker Shalhout’s motion for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 2010 the Grand Jury returned an indictment against Jad Shalhout, Saker Shalhout, and Mohannad Abdel-Samad. Thereafter, on January 13, 2011, the Grand Jury handed down a superseding indictment against the defendants. Count one charged Jad Shalhout, Saker Shalhout, and Mohannad Abdel-Samad, with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 and 1349. Counts two through forty-three charged Jad Shalhout, Saker Shalhout, and Mohannad Abdel-Samad with wire fraud in violation of Title 18 U.S.C. § 1343. Count forty-four charged Jad Shalhout, Saker Shalhout, and Mohannad Abdel-Samad with conspiracy to money launder. Counts forty-[225]*225eight and forty nine charged Jad Shalhout with money laundering in violation of Title 18 U.S.C. § 1956(a)(l)(B)(i). Mohannad Abdel-Samad entered a guilty plea on February 25, 2011.

The trial of this matter was held from March 28, 2011 to March 31, 2011. The government presented testimony from several witnesses: Denise Johannes, Luis Garcia Rojas, Maria Marino, Carlos Cruz, Silva Gibbs, Edris PanL-James, Paul Smith, Michael Thompson, Frederica Graneau, Marcella Somersal, Munif Asfour, Mohannad Abdel Samad, Hugh Brown, Kendy Javier, Jamil Daboub, and John Feola. Among them were two cooperating witnesses Mohannad Abdel-Samad and Jamil Daboub. Defendant, Jad Shalhout presented the testimony of George Ward, Kimberly Abhary, and Carolina Hussein. Jad Shalhout testified on his own behalf. Defendant, Saker Shalhout offered the testimony of Mohammed Hussein, and Ronald Belfon. Saker Shalhout testified on his own behalf. On March 31, 2011, Jad Shalhout was convicted on one count of conspiracy to commit wire fraud and two counts of money laundering. Saker Shalhout was convicted on one count of conspiracy to commit wire fraud and on forty-two counts of wire fraud.

Shortly after the conclusion of the trial, Jad Shalhout’s attorney, Arturo Watlington, communicated with an alternate juror who did not take part in deliberations. Thereafter, Jad Shalhout and Saker Shalhout presented a sworn affidavit from the alternate juror to the Court. In the affidavit, the alternate juror stated that during Jad Shalhout and Saker Shalhout’s trial, members of the jury panel “asserted that defendants where [sic] in guilty because they were of Arabic descent or as we call them hear [sic] in St. Thomas, ‘Arabs.’ ” (Def. Mot. to Interview Jurors Ex. 1). The alternate juror further averred that “[g]iven what I perceived to be preconceived negative opinions of some of the jurors who sat in the trial of the above-captioned matter the defendants could not have gotten a fair trial.” (Def. Mot. to Interview Jurors Ex. 1).

Jad Shalhout then moved to interview members of the jury “to determine the extent of the panel’s prejudice against persons of Arab heritage and Muslim belief.” (Def. Mot. to Interview Jurors at 2-3). In September 2011, the Court granted Jad Shalhout and Saker Shalhout leave to interview jury members for the limited purpose of exploring bias against Arabs. The Court also granted Jad Shalhout and Saker Shalhout’s motion for juror addresses. Jad Shalhout and Saker Shalhout successfully interviewed three jurors.

Jad Shalhout and Saker Shalhout (collectively the “Shalhouts”) now move for a new trial. The Government opposes.

II. DISCUSSION

Pursuant to Fed.R.Crim.P. 33 (“Rule 33”), the Court may grant a new trial “in the interest of justice.” United States v. Charles, 949 F.Supp. 365, 368, 35 V.I. 306 (D.V.I.1996). In assessing such “interest”, the court may weigh the evidence and credibility of witnesses. United States v. Bevans, 728 F.Supp. 340, 343 (E.D.Pa.1990), aff'd, 914 F.2d 244 (3d Cir.1990). If the Court determines that there has been a miscarriage of justice, the court may order a new trial. Id. “The burden is on the defendant to show that a new trial ought to be granted. Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.” United States v. Clovis, Crim. No. 94-11, 1996 WL 165011, at *2, 1996 U.S. Dist. LEXIS 20808, at *5 (D.Y.I. Feb. 12, 1996).

III. ANALYSIS

The Shalhouts argue that this Court should grant them a new trial for two reasons. First they assert that they were convicted before a racially and religiously biased jury. As such, they claim their convictions were obtained in violation of their right to a fair trial under the Fifth and Sixth Amendments. Second, they argue that the Court improperly excluded an exculpatory writing from an alleged co-conspirator acknowledging a debt owed to Jad Shalhout.

[226]*226A. Sixth Amendment Right to an Impartial Jury

a. Motion for a New Trial Based on the Court’s Yoir Dire

The Shalhouts contend that the Court’s refusal to voir dire potential jurors regarding bias against Arabs and Muslims resulted in a tainted jury. On this basis, they argue that the Court should grant them a new trial.

In Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981), the Supreme Court assessed whether the district court erred when it declined to voir dire the jury for racial and ethnic bias. In Rosales-Lopez the defendant Humberto Rosales-Lopez (“Rosales-Lopez”) was tried for his participation in a plan to bring three Mexican aliens into the United States. Rosales-Lopez was of Mexican descent. Before trial, counsel for Rosales-Lopez submitted questions for voir dire. Among the questions submitted was “Would you consider the race or Mexican descent of Humberto Rosales-Lopez in you evaluation of this case? How would it affect you?” The trial court declined to ask the questions. Rosales-Lopez, 451 U.S. at 185, 101 S.Ct. 1629.

In its analysis of the case, the Supreme Court emphasized that “[o]nly when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors ... does the trial court’s denial of a defendant’s request to examine the jurors’ ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.” Rosales-Lopez, 451 U.S. at 190, 101 S.Ct. 1629; see also Turner v. Murray, 476 U.S. 28, 36,106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (“We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.”).

More specifically, the Rosales-Lopez Court stated that previous Supreme Court cases, Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) and Ristaino v.

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Bluebook (online)
280 F.R.D. 223, 2012 WL 13675, 2012 U.S. Dist. LEXIS 979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shalhout-vid-2012.