                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2008

USA v. Abdunafi
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3635




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 07-3635
                                 ____________

                       UNITED STATES OF AMERICA

                                       v.

                MALIK ABUHAMID IBM WAKIL ABDUNAFI,

                                                        Appellant

                                 ____________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                             (D.C. No. 06-cr-00255)
                  District Judge: Honorable James M. Munley
                                 ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                              November 20, 2008

          Before: FUENTES, HARDIMAN and GARTH, Circuit Judges.

                           (Filed: November 26, 2008)

                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       Malik Abdunafi appeals his conviction and sentence for drug-related offenses. We

will affirm.

                                             I.

       Because we write solely for the parties, we recount only the essential facts.

       After being arrested for distributing heroin to a confidential informant, Shavette

Swain identified Abdunafi as her supplier and agreed to cooperate with police. The

following day, Swain met with Abdunafi to settle a $1,500 heroin debt. Immediately

following their meeting, police stopped Abdunafi’s vehicle and seized the $1,500, along

with drug paraphernalia. Later that day, police conducted consent searches of two motel

rooms rented in Abdunafi’s name and a townhouse owned by Abdunafi’s cousin. These

searches yielded evidence of powder cocaine, crack, heroin, and drug paraphernalia.

       Abdunafi was indicted and convicted on five counts following a jury trial. He was

sentenced to 240 months imprisonment and ordered to forfeit $100,000.

                                             II.

       In this appeal, Abdunafi claims there was insufficient evidence to convict him on

Count I (conspiracy to distribute and possess with intent to distribute more than 50 grams

of cocaine base, more than 500 grams of cocaine, and additional quantities of heroin and

marijuana in violation of 21 U.S.C. § 846) and on Count IV (possession with intent to




                                             2
distribute more than 500 grams of cocaine, more than five grams of cocaine base, and

additional quantities of heroin and marijuana in violation of 21 U.S.C. § 841(a)(1)).1

         Abdunafi concedes that he sold crack, but claims that the evidence at trial was

insufficient to convict him of conspiracy to distribute crack. Abdunafi bears a heavy

burden in light of our “particularly deferential” standard of review in cases challenging

the sufficiency of the evidence. See United States v. Dent, 149 F.3d 180, 187 (3d Cir.

1998). We must sustain the verdict if there is substantial evidence, viewed in the light

most favorable to the Government, to uphold the jury’s decision. See Glasser v. United

States, 315 U.S. 60, 80 (1942), superseded by statute on other grounds; United States v.

Beckett, 208 F.3d 140, 151 (3d Cir. 2000). We neither weigh the evidence nor assess the

credibility of the witnesses. Dent, 149 F.3d at 187. Instead, we must affirm if “any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he evidence need

not unequivocally point to the defendant’s guilt as long as it permits a finding of guilt

beyond a reasonable doubt.” See United States v. Davis, 183 F.3d 231, 238 (3d Cir.

1999).

         When police stopped Abdunafi’s van following his meeting with Swain, he was

accompanied by two young men, who were later identified as Jose Louis Cano and Jamal


         1
         We exercise appellate jurisdiction over Abdunafi’s claims of trial error under 28
U.S.C. § 1291 and review his claim of sentencing error under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

                                              3
Tompkins. The van also contained paraphernalia used to cook powder cocaine into crack,

including a Pyrex ® beaker, a sifter, and a hotplate which had crack residue on it.

Although the mere presence of these two men with Abdunafi in the van is insufficient to

prove a conspiracy, three witnesses testified that two men were associated with Abdunafi

and his drug operation at the Super 8 Motel as well.

         According to Kim McGraw, Abdunafi summoned two young men to bring him

powder cocaine from a nearby room at the Super 8 Motel to supply to one of his

customers. McGraw also testified that she observed Abdunafi selling crack from the

motel. Furthermore, McGraw and Kimberly Doyle testified that when Abdunafi was not

around, he directed them to purchase marijuana or powder cocaine from those same men

at the motel. Similarly, Tabetha Mahnke testified that she purchased both powder cocaine

and crack from Abdunafi at the Super 8 Motel and she observed a bag almost full of

crack.    Donielle Lagabed testified that she remembered being at the motel with two men

and that she got crack at that location.

         In addition to this general testimony that Abdunafi and two men were distributing

various drugs from two rooms at the Super 8 Motel, there is circumstantial evidence that

at least one of the men at the motel was one of the men found with Abdunafi in the van.

Both Swain and another witness, Christina Shotwell, observed a man with stitches at the

Super 8 Motel, which was consistent with the description of one of the men found by

police in the van.



                                              4
       Taking the evidence in the light most favorable to the Government, we find that a

rational trier of fact could have found the essential elements of the crime of conspiracy

beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Abdunafi was found in the

van with two men and crack-producing paraphernalia; two men meeting a similar

description were involved in drug transactions at the Super 8 Motel; and Abdunafi was

selling crack out of the motel. From these facts it can be logically inferred that the same

two men were involved in all instances and that they and Abdunafi shared a unity of

purpose to distribute crack, an intent to achieve a common goal, and an agreement to

work together toward that goal. See United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.

1999).2

       The other members of the conspiracy need not be specifically identified, Rogers v.

United States, 340 U.S. 367, 375 (1951), and there is sufficient evidence that Abdunafi

“had an agreement with someone – anyone” in order to meet the requirements of a

conspiracy charge. United States v. Obialo, 23 F.3d 69, 73 (3d Cir. 1994). Although the

jury was not required to find that the two young men found with Abdunafi in the van were

the same as his accomplices in the Super 8 Motel, it was reasonable for the jury to so find.




       2
        Abdunafi argues that Kim McGraw’s testimony regarding the two men at the
Super 8 Motel related only to powder cocaine and did not include crack cocaine. This
argument ignores the circumstantial evidence that suggests that Abdunafi’s two young
accomplices conspired with him to sell crack and powder cocaine.

                                             5
Accordingly, the evidence was sufficient to convict Abdunafi for conspiracy to distribute

crack.

                                             III.

         Abdunafi also challenges the sufficiency of the evidence regarding his conviction

for possession with intent to distribute drugs (Count IV).3 This conviction was premised

on a finding that Abdunafi constructively possessed drugs found at the residence of his

cousin, William Robbins.

         Upon searching Robbins’s residence, police discovered 645.5 grams of powder

cocaine, 5.4 grams of crack, and 30.5 grams of heroin, along with empty Ziploc ® bags, a

digital scale, and a glass jar of cutting agents. The bags found in the Robbins residence

matched Ziploc ® bags seized from the Super 8 Motel. Robbins testified that the drugs did

not belong to him and that he did not know how the drugs got there. Robbins also

testified that he gave Abdunafi a key to his residence and that Abdunafi kept clothes

there. Besides Abdunafi, only Robbins, his mother, and father-in-law had access to the

home.

         In addition to Robbins, Kim McGraw testified that she accompanied Abdunafi to

Robbins’s residence on multiple occasions, stating: “I would call him, and he wouldn’t




         3
          Because Abdunafi did not move for a judgment of acquittal on this charge in the
District Court, we review for plain error. See United States v. Grasso, 381 F.3d 160, 166
(3d Cir. 2004), overruled on other grounds, United States v. Santos, 128 S. Ct. 2020
(2008); F ED. R. C IV. P. 29.

                                              6
have anything, and he would pick me up and he would stop there. . . . He would just get

out of the car and go inside.” She then testified that Abdunafi would return minutes later

with powder cocaine for her. This happened on three occasions. Additionally, McGraw

testified that she saw Abdunafi use a black digital scale, which she later identified as

belonging to Abdunafi after it was seized over the ceiling tiles alongside the drugs in the

Robbins residence. In light of this testimony, a jury could reasonably deduce that

Abdunafi had knowledge of the drugs and exercised sufficient dominion and control over

them to establish constructive possession. See United States v. Iafelice, 978 F.2d 92, 96

(3d Cir. 1992).4

       A reasonable jury believing this circumstantial evidence “and the inferences

logically deducible therefrom in the light most favorable to the government,” United

States v. McNeill, 887 F.2d 448, 449-50 (3d Cir. 1989), could find beyond a reasonable

doubt that Abdunafi constructively possessed the drugs at Robbins’s home with the intent

to distribute them.5



       4
          Constructive possession may be proved by circumstantial evidence. See United
States v. Bobb, 471 F.3d 491, 497 (3d Cir. 2006).
       5
          Abdunafi also challenges for the first time on appeal the District Court’s jury
instruction regarding constructive possession, arguing that the trial judge misstated its
requirements. The District Court properly explained the requirements for constructive
possession while cautioning the jury that “merely being present at the scene of a crime . . .
is not sufficient conduct to find that Mr. Abdunafi committed that crime.” We find no
error at all, much less an error that “was so fundamental and highly prejudicial as to
constitute plain error.” Bennis v. Gable, 823 F.2d 723, 727 (3d Cir. 1987) (quotation
marks omitted).

                                              7
                                             IV.

       Abdunafi’s final sufficiency of the evidence challenge regards his conviction for

conspiracy to distribute at least 500 grams of cocaine (Count I). This involves two

separate inquiries: (1) whether a conspiracy existed to distribute cocaine; and (2) the

weight of the cocaine in question. These inquiries correspond to our findings in Parts II

and III.

       In Part III, we concluded that the evidence was sufficient to establish that

Abdunafi constructively possessed the drugs found in the Robbins townhouse. The

testimony of McGraw regarding her multiple visits to the residence and her identification

of the black digital scale were sufficient for a jury to find that Abdunafi knew of the

drugs located in that residence and exercised the requisite dominion and control over

them. See Iafelice, 978 F.2d at 96. Therefore, we determined that the evidence was

sufficient to find that Abdunafi constructively possessed the 645.5 grams of cocaine

seized at the Robbins residence.

       Furthermore, a jury could have reasonably deduced that these drugs were part of a

larger conspiracy to distribute cocaine. As discussed in Part II, McGraw testified that

Abdunafi summoned two young men at the Super 8 Motel to bring him powder cocaine

from a nearby room to supply to one of his customers. Additionally, McGraw and

Kimberly Doyle testified that when Abdunafi was not around, he directed them to

purchase drugs, including powder cocaine, from those same men at the motel. Finally,



                                              8
the bags found in the Robbins residence matched Superman Ziploc ® bags seized from the

Super 8 Motel, leading to a logical inference that the drugs and paraphernalia found at the

Robbins residence were connected to Abdunafi’s activities at the motel.

       The Government need not prove that the other members of the conspiracy were

ever present at the Robbins townhouse in order to prove a conspiracy involving these

drugs. There is sufficient circumstantial evidence that a reasonable jury could find a

“logical and convincing connection” between the drugs Abdunafi constructively

possessed at the townhouse and the activities at the motel. McNeill, 887 F.2d at 449-50.

Accordingly, a reasonable jury could find beyond a reasonable doubt that Abdunafi

participated in a conspiracy to distribute at least 500 grams of cocaine.

                                             V.

       Abdunafi also challenges his sentence, arguing that the District Court erred by

imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

       Five hours after police took Abdunafi into custody following the van stop,

Abdunafi was transported to the Lackawanna County Prison. As the transport vehicle

entered the confines of the prison, Abdunafi broke free from his restraints and escaped

from the vehicle. He was found 90 minutes later about a mile from the facility. Abdunafi

contends that he was not yet in custody when he fled from the police and his behavior is

more appropriately classified as “avoiding or fleeing arrest” which does not warrant an

enhancement. See U.S.S.G. § 3C1.1, Application Note 5(d). We disagree.



                                              9
       Unlike the cases cited by Abdunafi in which the defendant’s arrest was still in

progress, United States v. Draves, 103 F.3d 1328 (7th Cir. 1997), or had not yet occurred,

United States v. Stroud, 893 F.3d 504 (2d Cir. 1990), Abdunafi had been in police

custody for five hours; an arrest had been accomplished and a state of legal custody had

begun. See United States v. Williams, 152 F.3d 294, 304 (4th Cir. 1998). Abdunafi’s

willful attempt to escape from that custody in order to obstruct justice warranted his two-

point enhancement.

                                            V.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            10
