                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2009

USA v. Sohail Chaudhry
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4540




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 07-4540
                                   _____________

                          UNITED STATES OF AMERICA

                                            v.

                               SOHAIL CHAUDHRY,
                                                 Appellant
                                ________________

                   On Appeal From the United States District Court
                             for the District of New Jersey
                               (Criminal No. 06-00771)
                    District Judge: Honorable Faith S. Hochberg

                     Submitted Under Third Circuit LAR 34.1(a)
                                  March 13, 2009
                                ________________

          Before: CHAGARES, FUENTES and TASHIMA*,Circuit Judges.*


                                (Filed: April 6, 2009)
                                    ____________

                                     OPINION
                                  ______________




      *
        The Honorable A. Wallace Tashima, Senior Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
CHAGARES, Circuit Judge.

       Sohail Chaudhry appeals his convictions for travel with intent to engage in a

sexual act with a minor and enticement of a minor female, as well as his sentence. We

will affirm.

                                             I.

       Because we write solely for the parties, we set forth only those facts that are

relevant to our analysis.

       On June 20, 2005, Chaudhry, then a married 28-year-old male living in

Pennsylvania, entered an internet chat room entitled “Romance NJ” and initiated contact

with a government agent, David Agar, who had assumed the identity of a 14-year-old girl

from New Jersey with the screen name “Cheergrlsam.” Chaudhry represented to

Cheergrlsam that he was a 20-year-old male living in Philadelphia. On approximately 54

occasions between June 20, 2005, and January 3, 2006, Chaudhry engaged in sexually

explicit conversations with Cheergrlsam. These conversations were recorded and stored

by the Yahoo! Messenger program, from which transcripts were later produced.2

       On January 4, 2006, Chaudhry traveled from his home in Pennsylvania to a

McDonald’s in New Jersey to meet “Cheergrlsam” in person. Upon arriving at the

McDonald’s, he was arrested. Chaudhry was taken to the Bergen County Prosecutor’s




       2
       The Government concedes that the first line or two of the instant messaging
conversations are not always recorded by the Yahoo! Messenger program.

                                              2
Office, where he was informed of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), and agreed to waive those rights and speak with the investigating officers.

Chaudhry admitted that he corresponded with a 14-year-old girl that he knew as

Cheergrlsam in an internet chat room, starting in June 2006. Chaudhry also admitted that

he initiated conversations with Cheergrlsam about sex, and that he had traveled to New

Jersey to meet Cheergrlsam in person. In addition, Chaudhry admitted that he discussed

performing various sexual acts with Cheergrlsam and that he had contacted the Horizon

Motel in South Hackensack, New Jersey, to check on the availability of rooms and on

rates. Chaudhry stated that he intended to purchase condoms ahead of time, but he forgot

and then decided to get them after he met with Cheergrlsam. Finally, Chaudhry stated

that he spoke with approximately six other girls, who he believed to be approximately

Cheergrlsam’s age, over the internet.

       On September 21, 2006, a grand jury returned a two-count indictment charging

Chaudhry with traveling in interstate commerce for the purpose of engaging in illicit

sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b), and with using

telephone lines and the internet to attempt to entice a minor to engage in criminal sexual

activity, in violation of 18 U.S.C. § 2422(b). On June 13, 2007, following a jury trial,

Chaudhry was convicted on both counts of the indictment. Chaudhry filed two post-

verdict motions for a new trial, both of which were denied by the District Court. On

November 28, 2007, the District Court sentenced Chaudhry to an 84-month term of



                                             3
imprisonment and a $12,500 fine.

       On appeal, Chaudhry argues that there was insufficient evidence to support the

jury’s rejection of his entrapment defense. Chaudhry further argues that the District

Court erred in denying certain preliminary and evidentiary motions, including, inter alia,

its ruling on certain discovery requests and its denial of Chaudhry’s motion to suppress

his post-arrest statements to investigating officers. Chaudhry also argues that his

sentence is unreasonable because he should not have received an upward adjustment for

obstruction of justice, and that the Court erred by limiting his right to allocution and

denying him the opportunity directly to address his departure motions to the Court.

Finally, Chaudhry contends that he suffered from ineffective assistance of counsel at trial.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and jurisdiction to review the

sentences imposed by the District Court pursuant to 18 U.S.C. § 3742.

                                             III.

       The District Court determined that Chaudhry met the threshold requirements

entitling him to an entrapment instruction.1 The jury rejected Chaudhry’s entrapment

defense and returned a verdict of guilty. Chaudhry argues that this Court should reverse



       1
        A defendant is entitled to an entrapment charge when he is first able to show “(1)
evidence that the Government initiated the crime, regardless of the amount of pressure
applied to the defendant, and (2) any evidence negating the defendant’s propensity to
commit the crime.” United States v. Watson, 489 F.2d 504, 509 (3d Cir. 1973); see
United States v. Marino, 868 F.2d 549, 552 n.6 (3d Cir. 1987).

                                              4
the determination of the jury because the verdict was based on insufficient evidence and

he was entrapped as a matter of law. We review the jury’s determination in the light most

favorable to the prosecution, and resolve all reasonable inferences therefrom in its favor.

United States v. Jannotti, 673 F.2d 578, 598 (3d Cir. 1982) (en banc). Viewing the

evidence in this light, we must uphold the jury’s verdict “unless no reasonable jury could

conclude beyond a reasonable doubt that the defendant was predisposed to commit the

offense for which he was convicted.” Id.

       Chaudhry argues that the Government induced his actions, pointing to evidence

that there was a period of time in which the Government agents attempted to initiate

contact, and Chaudhry did not respond, and that, at one point, Chaudhry cancelled or

delayed a planned meeting with Cheergrlsam. We note that “inducement alone does not

establish entrapment as a matter of law”; rather, the central consideration is “whether the

undisputed evidence shows a lack of predisposition on the part of the accused.” United

States v. Gambino, 788 F.2d 938, 944 (3d Cir. 1986) (citing Hampton v. United States,

425 U.S. 484, 488 (1976)). We are unconvinced on this record that no reasonable jury

could have rejected Chaudhry’s entrapment defense.

       The record reflects that Chaudhry exhibited a willingness to meet, and engage in

sexual acts, with Cheergrlsam, and admitted to initiating the topic of sex with

Cheergrlsam. Moreover, regardless of which party initiated conversations, Chaudhry was

consistently the party that introduced the topic of engaging in sexual activity, as well as



                                              5
planning a meeting to engage in such conduct. We have held that the Government may

negate an entrapment defense with evidence of an existing course of conduct that is

similar to the crime charged, an “already formed design” to commit the crime with which

the defendant is charged, or a willingness to commit the crime “as evidenced by the

accused’s ready response to the inducement.” United States v. Lakhani, 480 F.3d 171,

179 (3d Cir. 2007) (quotations and citations omitted). Here, there is ample evidence upon

which the jury could have relied to reject the entrapment defense.

                                             IV.

       Chaudhry challenges the District Court’s pretrial ruling denying him the

opportunity to have an expert witness personally examine a government-owned computer

used in various undercover law enforcement investigations, including for the instant-

messaging based conversations between Chaudhry and the agent posing as Cheergrlsam.

“An application for discovery under Rule 16 of the Federal Rules of Criminal Procedure

is addressed to the sound discretion of the trial court, and its ruling will be disturbed only

for an abuse of discretion.” United States v. Newman, 476 F.2d 733, 739 (3d Cir. 1973)

(quotation omitted). The Government opposed the motion in the District Court, arguing

that such production could compromise unrelated investigations, and noting that it had

previously obtained from the computer and provided to Chaudhry copies of the recorded

instant messaging conversations between Chaudhry and Cheergrlsam. The District Court

denied the motion, satisfied with the testimony of Chaudhry’s own expert, who stated that



                                              6
the retrieval of documents resulting from certain term searches would be “sufficient” to

satisfy the discovery requests. Supplemental Appendix (S.A.) 1082-83. We find the

District Court acted well within its discretion in reaching this determination, and we will

not disturb it.

                                             V.

       Chaudhry next argues that the District Court erred in denying his motion to

suppress his post-arrest statements. Chaudhry argues that his statements were not

voluntary because he “altered his statements” to “appease” the law enforcement officers

based on his belief that he was “undergoing a credibility test” and that his statements were

being recorded. Appellant Br. at 51. The District Court’s ultimate conclusion regarding

the voluntariness of a confession is subject to plenary review; however, we review the

District Court’s underlying factual findings for clear error. United States v. Perez, 280

F.3d 318, 336 (3d Cir. 2002). We consider the “totality of the circumstances” to

determine whether “the defendant’s will was overborne when he confessed.” Miller v.

Fenton, 796 F.2d 598, 604 (3d Cir. 1986) (citations omitted); see United States v. Jacobs,

431 F.3d 99, 108 (3d Cir. 2005). In making this determination, “coercive police activity

is a necessary predicate to the finding that a confession is not ‘voluntary’ within the

meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v.

Connelly, 479 U.S. 157, 167 (1986); see United States v. Bethancourt, 65 F.3d 1074,

1078 (3d Cir. 1995).



                                              7
       In its opinion denying Chaudhry’s motions to suppress, the District Court observed

that the Government had produced a Miranda waiver form, signed by Chaudhry; consent-

to-search forms, also signed by Chaudhry; and hand-written notes from a law

enforcement officer documenting Chaudhry’s post-arrest statements, each page of which

Chaudhry had initialed. The Court found no evidence of coercive police activity or that

Chaudhry did not understand his rights. Appendix (App.) 43. We conclude that the

District Court did not err in denying Chaudhry’s motion to suppress his statements.

       Chaudhry further argues that the District Court abused its discretion in denying

him the opportunity to inspect the interrogation room for recording equipment, and that

the District Court erred in failing to suppress his post-arrest statements under Federal

Rule of Evidence 403. We conclude that each of these arguments lacks merit.

                                              IV.

       Chaudhry raises a number of claims of sentencing error, including, inter alia, that

the District Court erred in imposing a two-level sentencing enhancement for obstruction

of justice, and that the District Court violated his right to allocute prior to the imposition

of sentence.

                                              A.

       Chaudhry argues that the District Court erred when it imposed a two-level

adjustment under United States Sentencing Guideline § 3C1.1 for obstruction of justice

because he willfully committed perjury during his suppression hearing and at trial. A



                                               8
district court may increase the offense level under § 3C1.1 based on perjured testimony if

it finds that the defendant gave false testimony as to a material matter with the willful

intent to give false testimony. United States v. Dunnigan, 507 U.S. 87, 94, 97 (1993);

United States v. Bass, 54 F.3d 125, 133 (3d Cir. 1995). We review the District Court’s

finding that Chaudhry’s testimony was willfully false for clear error. United States v.

Cusumano, 943 F.2d 305, 315 (3d Cir. 1991).

       We conclude that the record supports the District Court’s finding. Chaudhry based

his defense, in part, on his claim that he had numerous conversations with Cheergrlsam in

the four to six weeks prior to June 20, 2005, the date on which the chat transcripts begin.

Chaudhry claimed that those conversations, withheld from evidence, were nonsexual in

nature and led Chaudhry to determine that Cheergrlsam was an adult woman, role playing

as a minor. Chaudhry testified in detail concerning the content of these purported

conversations in both the suppression hearing and at trial. Chaudhry further claimed that

the Government concealed or destroyed the allegedly exculpatory chats, and argued that

this alleged violation of Brady v. Maryland, 373 U.S. 83 (1963), mandated dismissal of

the indictment. Chaudhry presented expert testimony both at trial and at pretrial hearings

in support of his defense that the submitted transcripts might be incomplete. See, e.g.,

S.A. 607-610 (testimony of expert witness Robert Andrew Leonard).

       Chaudhry’s testimony was contradicted by agent Agar, who testified that he

originated the screen name “Cheergrlsam” on June 20, 2005, the date of his first internet



                                              9
investigation with the Computer Crimes Task Force, and that this was the first time he

communicated with Chaudhry. Officer Agar’s testimony was further bolstered by records

from Yahoo! indicating that the “Cheergrlsam” account was first created on June 20,

2005.

        The District Court found that Chaudhry fabricated these earlier conversations with

the purpose of constructing a defense “that he hoped would lead to an acquittal.” App.

10; see Appellant Br. at 9 (acknowledging that the theory that the online chats were “role

play” was critical to Chaudhry’s defense). Accordingly, the District Court held that such

testimony was not merely false, but willfully so. We conclude that the District Court’s

ruling was not clearly erroneous.

                                             B.

        Chaudhry also challenges the District Court’s procedures at sentencing, and

contends that the Court improperly limited his right to allocute. This Court exercises

plenary review over claims challenging the legality of sentencing procedures. United

States v. Woods, 986 F.2d 669, 673 (3d Cir. 1993). Federal Rule of Criminal Procedure

32 requires, in relevant part, that before imposing its sentence, the Court must provide the

defendant’s attorney the opportunity to speak on the defendant’s behalf, and “address the

defendant personally in order to permit the defendant to speak or present any information

to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A). The District Court provided both

defense counsel and Chaudhry ample opportunity to speak on his behalf. Chaudhry’s



                                             10
contention that he should have been allowed to speak earlier, while the Court was making

legal and factual findings, and as his defense counsel was presenting arguments, is

without merit. The Court personally addressed Chaudhry prior to sentencing, providing

him with the opportunity to present any mitigating evidence on his behalf, and placed no

limitation on Chaudhry’s remarks. Rule 32 requires no more.

                                             VI.

       Finally, Chaudhry presents a claim on appeal based on ineffective assistance of

trial counsel. It is well settled that such claims should be raised in collateral proceedings,

particularly when, as in this case, the record is insufficient for this Court’s review. See

United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (citing Massaro v. United

States, 538 U.S. 500 (2003)). We thus decline to address Chaudhry’s arguments based on

ineffective assistance of counsel.2



       2
           Chaudhry argues that he was denied his right to a fair trial because the
Government failed to preserve exculpatory evidence allegedly contained in his “initial
conversations” with Cheergrlsam. Appellant Br. at 47. We reject this argument. As
discussed in Section IV.A., supra, the Government was able to refute the defense that
earlier, exculpatory communications between Chaudhry and Cheergrlsam existed, and
thus was under no obligation to “preserve” such communications. In addition, for the
first time in his reply brief, Chaudhry contends that the District Court committed plain
error in failing to instruct the jury regarding the spoliation of evidence. Appellant Reply
Br. at 23-25. Chaudhry waived any such argument by failing to raise it in his opening
brief. See, e.g., Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994).
        Chaudhry also asks this Court to “take into account his special circumstances,
particularly his prior history and characteristics,” and afford him some relief under the
Second Chance Act, 18 U.S.C. § 3624. Appellant Br. at 60. This request is not properly
before this Court. Section 3624(b) provides that federal prisoners serving a term of

                                              11
                                            VII.

       For the reasons stated, we will affirm the judgment of the District Court in all

respects.




imprisonment of more than a year may receive “credit” toward the prisoner’s term of
imprisonment of up to 54 days per year, subject to a determination by the Bureau of
Prisons, at the end of the first year of the prison term, that the prisoner had demonstrated
exemplary behavior. Finally, all of Chaudhry’s arguments not specifically addressed are
without merit.

                                             12
