United States v. Ali

47 F.4th 691

UNITED STATES of America, Plaintiff - Appellee

v.Muzammil ALI, Defendant - Appellant

No. 21-2286

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2022

Filed: August 30, 2022

Counsel who presented argument on behalf of the appellant and appeared on the brief was Gerald B. Feuerhelm, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Kyle J. Essley, AUSA, of Des Moines, IA.

Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.

SMITH, Chief Judge.

After a three-day trial, a jury convicted Muzammil Ali of conspiracy to distribute tetrahydrocannabinol (THC), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Ali appeals, arguing that the district court¹ (1) abused its discretion by denying his motion for a continuance; (2) erred by admitting into evidence portions of recordings of phone calls that Ali made from jail; (3) permitted trial delays that violated Ali's Sixth Amendment right to a speedy trial; and (4) erred at sentencing by declining to vary downward. We affirm.

I. Background

A. Indictment and Continuances

On November 14, 2019, Muzammil Ali and five associates were indicted for conspiracy to distribute THC. Joshua Hendrickson, the leader of the conspiracy, bought vape pens from Hong Kong, THC from California and Nevada, and flavoring from California; he had all of these materials shipped to his co-conspirators’ residences in Des Moines, Iowa, for assembly and distribution in the area. Ali, for his part, received shipments and helped to assemble the components into the final product, THC-filled vape pens, at his residence.

In late 2019, several of Ali's co-conspirators were arrested. The district court set their trial for July 13, 2020. Ali was arrested on February 18, 2020. At his arraignment the following day, Ali, though aware of his rights, made no objection to his trial date being the same as his co-defendants. A July 13, 2020 trial would trespass the April 29 deadline under the Speedy Trial Act. The exchange was as follows:

THE COURT: .... [B]y our calculation, the Speedy Trial Act deadline is April 29, but the co-defendants are set for trial for July 13.

So [does Ali have] any objection to going ahead and using the July 13 trial date?

[Ali's Counsel]: I'm sorry?

THE COURT: Is there any objection to going ahead to use the July 13 trial date?

[Ali's Counsel]: No, Your Honor.

R. Doc. 318, at 4.

In May 2020, co-defendant Hendrickson moved to continue the trial date until September. Ali initially objected to the continuance, but he later withdrew his objection and joined Hendrickson's motion along with several other co-defendants. The district court granted the motion, "find[ing] that the ends of justice served by a continuance outweigh the best interest of the public and Defendants in a speedy trial." R. Doc. 165, at 1. Trial was rescheduled for September 14, 2020.

In late July 2020, Ali moved pro se for his counsel to be replaced. The court granted his request. A new attorney was appointed on August 4. The next day, Ali's new counsel was provided with all discovery material produced to date. Ali thereafter moved for a continuance, stating that "the ends of justice served by granting this continuance outweigh the best interest of the public and the defendant in a speedy trial." R. Doc. 272, at 1. He further acknowledged that the time between the motion and the new trial date would be excluded from Speedy Trial Act calculations. See 18 U.S.C. § 3161. The court concurred and reset trial for October 19, 2020.

In late September 2020, Ali alleged that his speedy trial rights were being violated and moved to dismiss the charge against him. The district court rejected Ali's motion because (1) "Ali [had] consented to the trial continuances," (2) "the ends of justice served by the continuances outweighed the best interest of the public[ ] and ... [of] Ali in a speedy trial," and (3) the court's issuance of a series of Public Administrative Orders had postponed all jury trials until October 12, 2020, due to the COVID-19 pandemic, "exclud[ing] the intervening time from consideration [in] Speedy Trial Act calculations." R. Doc. 319, at 1–2.

In early October, the government requested that Ali's trial be continued for two months. In support of its motion, the government cited, among other things, the following: (1) that the only co-conspirator who had not yet pleaded guilty had recently become a fugitive, (2) the preference for co-conspirators to be tried jointly, (3) the ongoing COVID-19 pandemic, and (4) the fact that a continuance would not violate the Speedy Trial Act. Ali resisted the motion, indicating that he "wishe[d] to proceed to trial." R. Doc. 359, at 1. The court denied the government's motion. However, due to scheduling issues, the court pushed trial back three days, to October 22, 2020.

A few weeks later, the government reasserted its motion, asking for permission to call a witness via two-way video or, in the alternative, for a continuance. In addition to the reasons set forth in its initial motion, the government disclosed that an essential witness was unavailable to appear in-person at trial due to personal circumstances related to the COVID-19 pandemic.² The court granted the continuance "[f]or the reasons stated in the [g]overnment's motion" and set trial for January 11, 2021. Id. at 1.

Five days before trial, on January 6, 2021, Ali sought a continuance until "a time when C[OVID-19] vaccinations ha[d] been administered." R. Doc. 457, at 2. Ali argued that restrictions at the jail where he was detained rendered him "unable to meet with his attorney in person on an unlimited basis to review discovery and prepare for trial." Id. at 1. In a pro se letter to the court, Ali added that neither he nor his attorney was prepared for trial and that he needed additional time "to go over the discovery with [his attorney] face to face." R. Doc. 460, at 1. A hearing was held the next day. There, Ali's attorney represented that he was prepared for trial and that he was "familiar with all the evidence" but that Ali did not "believe [they were] prepared for trial" because Ali had only recently shifted his focus from challenging his pre-trial detention to trial matters. R. Doc. 573, at 6, 33.

The district court rejected Ali's request for a continuance, noting Ali's repeated "insistence in October [2020] that any continuance would be a violation of his rights and that he needed to go to trial in October despite pandemic circumstances." Id. at 6. In the interim, said the court, the only change had been "a constriction of evidence ... to be presented at trial." Id. at 5. And the restrictions on in-person communication at the jail where Ali was incarcerated did not result in a due process violation or call for a continuance, because Ali "ha[d] had adequate time to prepare for trial." Id. at 25.

The court did not ignore Ali's concerns about time for trial preparation. The court scheduled the hearing early in the morning so that Ali and his attorney would have the remainder of the day to work together at the courthouse where they would not be subject to the jail's COVID-19 restrictions. The court arranged for a private room in which Ali and his attorney would be able to review discovery materials. The court also permitted Ali and his attorney several hours the following day to work together at the courthouse. Ali's attorney stated to the court that he appreciated the court "going way over the top to try to help us here," and Ali acknowledged that the court's efforts had "addressed [his] concerns." Id. at 28, 29.

B. Jail Calls

In the two days before trial, Ali placed multiple telephone calls to his former girlfriend, Samantha Kendall, from his jail cell. Kendall lived with Ali during the time when his co-conspirators used his residence as home base for their drug operation. The government also called Kendall as a witness for the government at Ali's trial. Kendall answered only the first two calls she received from Ali.

During his two recorded conversations with Kendall, Ali made several statements that the government sought to introduce at trial. The government believed the calls were attempts to influence her testimony or to persuade her not to testify at all. In the first call, for example, Ali said:

[Y]ou want to help these people [the government], and you don't know what the f*ck they're going to do to you? ... [Y]ou know what the f*ck's going to happen? They don't give a f*ck about you or anybody else. You're going to testify? That's fine, do what you have to do. But you do have to be careful. They will turn around and charge you too. This is the federal government. You know the government doesn't give a f*ck.

R. Doc. 577, at 33 (second, third, fourth, sixth, seventh, and eighth alterations in original). Ali said similar things in the second call. Specifically, Ali told Kendall that she "made a big mistake all last year" and was "still making mistakes" by cooperating with the government. Id. When she told him that she was not concerned about being charged with a crime, he claimed that she was culpable in the criminal activity that occurred at their residence.

At trial, the government offered into evidence two exhibits which contained excerpts of the two recorded calls. The first exhibit contained nearly 9 minutes of the first call, which was around 13 minutes in total, and the second contained 3 minutes of the 20-minute second call.

Ali objected to the exhibits, arguing that the risk of unfair prejudice substantially outweighed their probative value. Ali asked, in the alternative, that, if the court admitted the exhibits, it would admit them in their entirety. The district court overruled Ali's objection. The court reasoned that portions of the calls were "relevant to [Ali's] attempt to influence [Kendall's] testimony," to "intimidate" her, and to persuade her "to not testify about his involvement in this case." R. Doc. 555, at 46....