09-5014-cr
USA v. Hossaini

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 28th day of January, two thousand eleven.

Present: RALPH K. WINTER,
         ROBERT A. KATZMANN,
         DEBRA ANN LIVINGSTON,
                           Circuit Judges,
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                           No. 09-5014-cr

WAHIDULLAH HOSSAINI,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         B. ALAN SEIDLER, ESQ ., New York, N.Y.

For Appellee:                                    JACQUELYN M. RASULO (Jo Ann M. Navickas,
                                                 of counsel), Assistant United States Attorney,
                                                 for Loretta E. Lynch, United States Attorney for
                                                 the Eastern District of New York, Brooklyn,
                                                 N.Y.
       Appeal from the United States District Court for the Eastern District of New York
(Dearie, C.J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Wahidullah Hossaini appeals from a November 19, 2009 judgment

of the United States District Court for the Eastern District of New York (Dearie, C.J.), following

a jury verdict convicting him of (1) conspiring to distribute and possess with intent to distribute

oxycodone and hydrocodone, in violation of 21 U.S.C. §§ 846, 841(a), 841(b)(1)(C), and

841(b)(1)(D); and (2) distribution and possession with intent to distribute oxycodone and

hydrocodone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 841(b)(1)(D). We assume

the parties’ familiarity with the underlying facts, procedural history of this case, and the

specification of issues on appeal.

       Hossaini first contends that there was insufficient evidence to sustain his conviction.

Specifically, he argues that there was “no evidence” that he “knowingly filled fake

prescriptions,” nor that he “solicited the criminal prescriptions, or that he was paid additionally

for filling [them].” Def. Br. at 18. “To be guilty of conspiracy, ‘there must be some evidence

from which it can reasonably be inferred that the person charged with conspiracy knew of the

existence of the scheme alleged in the indictment and knowingly joined and participated in it.’”

United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004) (quoting United States v. Gaviria,

740 F.2d 174, 183 (2d Cir. 1984)). Because Hossaini failed to object on this ground below, his

sufficiency challenge is reviewed for plain error. See, e.g., United States v. Allen, 127 F.3d 260,

264 (2d Cir. 1997) (“To preserve the sufficiency issue and avoid the burden of showing plain



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error, a defendant must have moved for judgment of acquittal either at the close of all the

evidence pursuant to Rule 29(a) or post-trial in a motion pursuant to Rule 29(c).”). “For plain

error, we must find (1) error, (2) that is plain, and (3) that affects substantial rights; if these three

conditions are met, we have discretion to notice the forfeited error only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Dorvee, 616 F.3d 174, 180 n.2 (2d Cir. 2010). Even had this claim been preserved, Hossaini

would “bear[] a heavy burden because a reviewing court must consider the evidence ‘in the light

most favorable to the prosecution’ and uphold the conviction if ‘any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” United States v.

Aguilar, 585 F.3d 652, 656 (2d Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

        We find that there was more than sufficient evidence from which the jury could

reasonably conclude that Hossaini knowingly conspired to and did in fact distribute narcotics.

For example, the evidence at trial included: (1) Hossaini’s handwritten notations — verified by

the government’s handwriting expert — on fraudulent prescriptions that he had verified the

prescriptions, and testimony from the doctors who purportedly wrote the fraudulent prescriptions

that Hossaini had not contacted them; (2) evidence that Hossaini had continued to fill

prescriptions purportedly written by Dr. Iandoli after the DEA had flagged the suspicious nature

of those prescriptions to Hossaini; and (3) testimony from one of the addicts for whom Hossaini

had filled fraudulent prescriptions that Hossaini had warned him when law enforcement agents

were in the vicinity of the pharmacy. Accordingly, Hossaini’s sufficiency challenge is

unavailing.


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       Hossaini next argues that he received ineffective assistance of counsel at trial. “To prove

such ineffective assistance, a defendant must show: (1) ‘that counsel’s representation fell below

an objective standard of reasonableness’; and (2) ‘that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.’”

United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (quoting Pham v. United States, 317

F.3d 178, 182 (2d Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984))).

When an ineffective assistance claim is raised on direct appeal, we may “(1) decline to hear the

claim, permitting the appellant to raise the issue as part of a subsequent 28 U.S.C. § 2255

petition; (2) remand the claim to the district court for necessary fact-finding; or (3) decide the

claim on the record before us.” Id. at 112-13 (quoting United States v. Hasan, 586 F.3d 161, 170

(2d Cir. 2009)). “[I]n most cases a motion brought under § 2255 is preferable to direct appeal for

deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504 (2003).

In the instant case, we conclude that the factual record before us is insufficiently developed to

allow us to resolve Hossaini’s ineffective assistance claim, and we accordingly decline to hear it

on direct review. We conclude that “a collateral proceeding under section 2255 provides the

defendant with an ample remedy for any ineffectiveness claim,” while also promoting “judicial

economy . . . by requiring the district court to await the defendant’s collateral section 2255

motion before addressing his ineffectiveness claim.” United States v. Doe, 365 F.3d 150, 154

(2d Cir. 2004).

       Hossaini also challenges the substantive reasonableness of his sentence. Our review of

his sentence for reasonableness “amounts to review for abuse of discretion.” United States v.

Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S. 38, 46


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(2007)). Substantive determinations shall be set aside “only in exceptional cases where the trial

court’s decision ‘cannot be located within the range of permissible decisions.’” Id. at 189

(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). “[W]e do not presume that a

Guidelines-range sentence is reasonable,” but rather “take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing

in mind the institutional advantages of district courts.” Id. at 190. “Generally, ‘[i]f the ultimate

sentence is reasonable and the sentencing judge did not commit procedural error in imposing that

sentence, we will not second guess the weight (or lack thereof) that the judge accorded to a given

factor or to a specific argument made pursuant to that factor.’” United States v. Pope, 554 F.3d

240, 246-47 (2d Cir. 2009) (alteration in original) (quoting United States v. Fernandez, 443 F.3d

19, 34 (2d Cir. 2006)). Hossaini argues that his below-Guidelines sentence of 84 months’

imprisonment is too harsh for a first-time offender with his background. However, the district

court was conscious of the facts about Hossaini’s background and the mitigating factors to which

he now points, and the judge went to great lengths, including consulting with two colleagues, in

order to craft a reasonable sentence. We conclude that the district court gave great consideration

to this exercise of its discretion, and the resulting sentence is not unreasonable.

       Finally, Hossaini challenges the denial of his two motions to suppress evidence —

including prescriptions for oxycodone and hydrocodone, patient and doctor controlled substance

dispensing histories, and inventory reports — taken during various administrative visits to his

pharmacy. “When considering a challenge to the resolution of a suppression motion, we review

findings of fact for clear error and legal questions de novo.” United States v. Stewart, 551 F.3d

187, 190-91 (2d Cir. 2009). We view the facts in the light most favorable to the government.


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United States v. Casado, 303 F.3d 440, 443 (2d Cir. 2002). Hossaini argues that the DEA

conducted two administrative visits in June and July 2005 without presenting the statutorily

required Notice of Inspection form to obtain his consent, and that by September 2005, the

administrative inspection was being conducted in bad faith to obtain evidence for a parallel

criminal investigation. The only evidence supporting Hossaini’s contention that two

unauthorized inspections occurred prior to the documented administrative inspection in August

2005 is his sister’s testimony at the suppression hearing, which was contrary to the evidence and

testimony presented by the government at that hearing. The district court’s weighing of the

witnesses’ credibility and its implicit conclusion in denying suppression that no such

unauthorized inspections occurred is the sort of finding that is deferentially reviewed, and the

district court’s conclusion — crediting the testimony of the government witnesses — is not

clearly erroneous. With respect to the alleged bad faith stemming from the concurrent

investigations, it is entirely permissible for the government to conduct administrative searches for

dual administrative and criminal purposes; to find otherwise would require the government to

choose between its means of protecting the public and would undermine the regulatory scheme

that authorizes administrative investigations. See United States v. Gel Spice Co., 773 F.2d 427,

432 (2d Cir. 1985). The evidence supports the conclusion that the administrative investigation

was legitimately begun in response to a report from a pharmaceutical company about Hossaini’s

unusual ordering of oxycodone and hydrocodone; there is no evidence of bad faith. Accordingly,

the denial of the suppression motions was proper.




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       We have considered all of Hossaini’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                                 FOR THE COURT:
                                                 CATHERINE O'HAGAN WOLFE, CLERK




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