United States v. Yousef Mohammad Ramadan

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 12, 2023
• Docket: 22-1243
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0439n.06

Case No. 22-1243

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Oct 12, 2023 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN YOUSEF MOHAMMAD RAMADAN, ) DISTRICT OF MICHIGAN Defendant-Appellant. ) ) OPINION

Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges.

COLE, Circuit Judge. A jury found Yousef Ramadan guilty of possession of a firearm

with an obliterated serial number, possession of a stolen firearm, and possession of an unregistered

silencer. Ramadan argues that the three statutes he was convicted under are unconstitutional. He

also argues the district court erred by finding that a deponent was an unavailable witness and

allowing the government to present videotaped testimony at trial. For the following reasons, we

affirm Ramadan’s convictions.

I.

During the execution of a search warrant on August 23, 2017, FBI agents found firearms

belonging to Ramadan in a storage unit in Ann Arbor, Michigan. Relevant here, the agents

recovered a stolen Jennings .22 caliber pistol, a Ruger .22 caliber pistol, and an unregistered

homemade silencer. The serial numbers on both pistols were obliterated. A grand jury later

indicted Ramadan on three counts: possession of a firearm with an obliterated serial number under Case No. 22-1243, United States v. Ramadan

18 U.S.C. § 922(k), possession of a stolen firearm under 18 U.S.C. § 922(j), and possession of an

unregistered silencer under 26 U.S.C. § 5861(d).

The agents determined that the original owner of the stolen Jennings pistol was Phillip

Prather, a California resident who was over 90 years old when the FBI recovered the gun. To

preserve Prather’s testimony for trial, the parties agreed to depose him in San Diego, California.

(Stipulation, R. 130, PageID 2347–48.) The parties’ listed reason for deposing Prather was that

he was “93 years old, and his limited ability to travel qualif[ied] as exceptional circumstances

under Rule 15(a)(1).” (Id. at PageID 2347.)

When deposed in April 2019, Prather’s testimony ultimately connected Ramadan to the

theft of the Jennings pistol. The government possessed video evidence “taken from Ramadan’s

perspective on September 21, 2015, at or near Prather’s residence, that include[d] Ramadan’s hand

removing the Jennings handgun from the back of a Star Carpet van.” (Mot. to Admit Test., R.

145, PageID 2457.) And when asked about the handgun, Prather testified that it was stolen and

that he noticed it was missing after his home was cleaned by Star Carpet in September 2015.

Ramadan worked for Star Carpet at that time.

Prather also testified to his various health issues and inability to travel: he was unable to

walk long distances without resting frequently, could not travel by plane or sleep in hotel rooms

comfortably, was still on medication for two previous heart attacks, and was planning to have back

surgery in the near future.

The government moved to admit a videotape of the deposition in lieu of live testimony at

the upcoming trial, citing to the health concerns Prather raised in the deposition, and requesting

that the district court find that he was an unavailable witness within the meaning of Federal Rule

of Evidence 804(a)(4). The government attached a letter from Prather’s doctor stating it would be

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difficult for Prather to participate in a trial because of his spinal stenosis, inability to sit in one

place, and limited walking capacity. Ramadan objected, arguing that Prather’s physical condition

did not limit his ability to travel and did not meet the unavailability standard. The district court

disagreed. It granted the motion in November 2019, concluding that it was “not possible for

[Prather] to come” because of his age and health concerns. (Mot. Hr’g Tr., R. 309, PageID 4643-

44.)

Ramadan’s trial did not commence until September 2021, two years later, because of delays

resulting from the COVID-19 pandemic. At trial, Ramadan did not object to the district court’s

admission of the video testimony or ask the court to reconsider its November 2019 unavailability

determination. A jury found Ramadan guilty of all three offenses. He brought this appeal.

II.

A.

On appeal, Ramadan argues for the first time that the statutes governing his three

convictions violate his Second Amendment rights. Since Ramadan did not make this argument

before the district court, we review for plain error. United States v. Skouteris, 51 F.4th 658, 673

(6th Cir. 2022) (citing United States v. Johnson, 627 F.3d 578, 585 (6th Cir. 2010)).

1.

As a preliminary matter, the constitutional challenge that Ramadan raises is predicated on

the test recently enumerated by the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, 142 S. Ct. 2111 (2022). Before Bruen, this court employed a two-part test to resolve Second

Amendment challenges to regulations. See United States v. Greeno, 679 F.3d 510, 518 (6th Cir.

2012), abrogated by Bruen, 142 S. Ct. at 2126−27; Oakland Tactical Supply, LLC v. Howell Twp.,

Mich., No. 21-1244, 2022 WL 3137711, at *2 (6th Cir. 2022). The first step of the pre-Bruen test

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required the government to offer evidence establishing that the challenged law did not regulate

activity protected by the Second Amendment’s historical scope. Greeno, 679 F.3d at 518. In step

two, “if the historical evidence [was] inconclusive or suggest[ed] that the regulated activity [wa]s

not categorically unprotected,” then courts conducted an inquiry “into the strength of the

government’s justification” under “the appropriate level of scrutiny.” Id. (quotation omitted).

The Bruen Court rejected this test, holding that “[w]hen the Second Amendment’s plain

text covers an individual’s conduct, the Constitution presumptively protects that conduct.” 142 S.

Ct. at 2129−30. If the regulation infringes upon protected conduct, then the government must

justify it by pointing to evidence showing consistency with the “Nation’s historical tradition of

firearm regulation.” Id. at 2130. So, post-Bruen, courts ask (1) whether the Second Amendment’s

plain text protects the conduct and, if so, (2) whether the government can justify the law by

demonstrating consistency with the Nation’s history of firearm regulation. Id. at 2129−30.

But because we review this case for plain error, we must determine only whether the

challenged statutes are “obviously unconstitutional.” United States v. Al-Maliki, 787 F.3d 784,

794 (6th Cir. 2015) (emphasis in original). Therefore, we need not decide today whether they

comply with Bruen’s mandate.

2.

As both parties acknowledge, we review for plain error because Ramadan raises this

argument on appeal for the first time. The plain error threshold is “extremely high” and is

overcome only in “exceptional circumstances.” Johnson, 627 F.3d at 586 (quotation omitted).

Ramadan must show “(1) error[,] (2) that was obvious or clear, (3) that affected [his] substantial

rights[,] and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” Id. at 585−86 (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)

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(en banc) (internal marks omitted). When addressing a constitutional challenge to a statute under

plain-error review, we examine whether the statute is unconstitutional, and ultimately whether the

statute is “obviously or clearly unconstitutional.” See Al-Maliki, 787 F.3d at 791, 794 (quotation

omitted).

Ramadan’s challenges do not clear this “high bar.” Skouteris, 51 F.4th at 673. Under our

precedent, an error is plain only where, at a minimum, the answer to the constitutional question “is

clear under current law.” Al-Maliki, 787 F.3d at 791, 794 (quoting United States v. Olano, 507

U.S. 725, 734 (1993)). Plain-error review is not satisfied when the state of the law regarding the

question is uncertain. See United States v. Woodruff, 735 F.3d 445, 451 (6th Cir. 2013). And a

circuit split also bars a finding of plain error because the split is “good evidence that the issue is

subject to reasonable dispute.” Al-Maliki, 787 F.3d at 794 (quotation omitted).

Here, Ramadan points to no “binding case law that answers the question,” let alone case

law suggesting that the statutes are plainly unconstitutional. Id. (citing Woodruff, 735 F.3d at 450).

His argument centers around the fact that “serial marring,” “[possessing] unregistered sound

reducers,” and “possessing a stolen firearm” were not criminalized when the Second Amendment

was adopted. (Appellant Br. 18.) Yet assuming Ramadan’s conduct is covered by the plain text

of the Second Amendment, Ramadan’s historical evidence is not enough to answer Bruen’s

historical inquiry to such a degree that the statutes are plainly unconstitutional. That’s especially

true here because neither our court nor the Supreme Court has determined the constitutionality of

18 U.S.C. § 922(k), 18 U.S.C. § 922(j), and 26 U.S.C. § 5861(d) vis-à-vis the Second Amendment.

Although one district court recently found that § 922(k) is unconstitutional under Bruen,

that specific issue is, at most, “subject to reasonable dispute.” Al-Maliki, 787 F.3d at 794; 142 S.

Ct. at 2129−30 (quotation omitted). In actuality, the weight of persuasive authority suggests that

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§ 922(k) is constitutional. (See Appellee Br. 14−15.) (collecting cases finding the regulation of

possessing firearms with obliterated serial numbers constitutional under Bruen). But see United

States v. Price, 635 F. Supp. 3d 455, 463 (S.D. W. Va. 2022) (order) (finding § 922(k) is

unconstitutional).

Accordingly, there is no binding case law or “good evidence” before this court showing

that the statutes are clearly unconstitutional under current law. See Al-Maliki, 787 F.3d at 791,

794. Because we are unable to say that the challenged statutes are plainly or obviously

unconstitutional, we find no plain error in Ramadan’s convictions.

B.

Ramadan also challenges the district court’s ruling that Prather was an unavailable witness,

which allowed the government to present a videotape recording of Prather’s deposition in lieu of

live testimony at trial. Since the district court was correct, we reject this argument.

At the outset, the parties dispute whether Ramadan preserved his challenge. Ramadan

objected to the government’s initial motion to admit Prather’s testimony in 2019, but he did not

object or ask the district court to revisit its ruling when the video was admitted at trial two years

later. The government therefore contends that Ramadan’s challenge to the unavailability ruling

should also be reviewed under plain error. The outcome is the same under either test, so we review

Ramadan’s challenge under the less demanding abuse-of-discretion standard. See United States v.

Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (“Evidentiary rulings are reviewed under the

abuse-of-discretion standard.”); United States v. Porter, 886 F.3d 562, 567 (6th Cir. 2018) (“We

review for abuse of discretion the admission of deposition testimony at trial in place of a live

witness.”)

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Under the abuse-of-discretion standard, we ask “whether the district court (1)

misunderstood the law . . ., (2) relied on clearly erroneous factual findings, or (3) made a clear

judgment error.” United States v. Chavez, 951 F.3d 349, 358 (6th Cir. 2020). Ramadan’s

challenge to the district court’s ruling focuses on the first prong. He argues that the district court

misunderstood the law because Rule 804(a)(4) “requires the government show a witness to be

unavailable, not that the witness is inconvenienced.” (Appellant Br. 36.) The district court was

not wrong, however, because Prather’s physical condition did in fact meet the unavailability

standard.

When a party claims that a witness is unavailable due to health concerns, the trial court

examines the duration and severity of the witness’s physical infirmities and illnesses to determine

whether the requisite finding of necessity is met. See Porter, 886 F.3d at 567. The admission of

deposition testimony at trial is a “case specific” determination, id., and is a matter “left to the

discretion of the trial judge,” United States v. Campbell, 845 F.2d 1374, 1378 (6th Cir. 1988).

Further, “it is well established that the infirmity of an elderly witness which prevents [them] from

traveling is an ‘exceptional circumstance’ [that] justifies the use of deposition testimony at trial.”

Campbell, 845 F.2d at 1377-78 (quotations omitted).

Prather’s physical condition met the unavailability standard. Cumulatively, deposition

testimony, the doctor’s note, and counsel for the government sufficiently articulated the nature and

severity of Prather’s health problems to the district court. See Porter, 886 F.3d at 568. At the time

of the evidentiary ruling, Prather was 93 years old, struggled to walk without needing rest, could

not travel by plane, and was on medication due to his previous heart attacks. His doctor also

concluded that Prather’s spinal stenosis would make it difficult for him to participate in the trial

because of his limited mobility and inability to sit in one place.

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Given Prather’s advanced age and health conditions, traveling across the country by plane

to testify would be more than an inconvenience. See United States v. Mallory, 902 F.3d 584, 590

(6th Cir. 2018). The district court gave proper weight to Prather’s characteristics when finding

that it would “essentially [be] physically impossible and [] dangerous to his health to travel here

and appear for what really should be fairly straightforward testimony.” (Mot. Hr’g Tr., R. 309,

PageID 4643-44.) Thus, we cannot say the district court misunderstood Rule 804(a)(4).

Given the above, the district court did not abuse its discretion in finding that Prather was

an unavailable witness and allowing the government to present videotaped testimony at trial.

III.

For the foregoing reasons, we affirm.

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