                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1393




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      ___________

                      No. 04-1393
                      ___________


            UNITED STATES OF AMERICA

                           vs.

        AKTHAM ABUHOURAN a/k/a HOURAN


                                   Aktham Abuhouran,
                                   Appellant.

                      ___________


      On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
              (D.C. Criminal No. 01-cr-00629-3)
     District Judge: The Honorable James McGirr Kelly

                      ___________

             ARGUED DECEMBER 13, 2004


BEFORE: NYGAARD, ROSENN, and BECKER, Circuit Judges.




                 (Filed January 14, 2005)
Jerry S. Goldman, Esq. (Argued)
Jerry S. Goldman & Associates
1500 John F. Kennedy Boulevard
Two Penn Center Plaza, Suite 1411
Philadelphia, PA 19102

      Counsel for Appellant

Robert A. Zauzmer, Esq. (Argued)
Office of the United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

      Counsel for Appellee


                                       ___________

                              OPINION OF THE COURT
                                   ___________


NYGAARD, Circuit Judge.

      Appellant Aktham Abuhouran, appeals his sentence following a guilty plea to one

count of conspiracy to commit bank fraud, mail fraud and obstruction of justice.

Determinative here, however, is an appellate waiver in Abuhouran’s plea agreement,

upon which the government has moved to dismiss the appeal. We will grant the motion

and dismiss the appeal.

      Abuhouran was involved in two bank fraud schemes. The first, which is not the

subject of this appeal, involved frauds perpetrated on the Bank of the Brandywine Valley




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(BBV) in 1990 and 1991. Abuhouran was tried, convicted and sentenced for his part in

this scheme.

        Germane to this appeal, is a counterfeit check scheme that Abuhouran perpetrated

while he was released on an electronic monitor between his conviction and sentencing in

the BBV case. He, his wife and brother Adam Abuhouran deposited over $2.5 million in

counterfeit checks into accounts they controlled in six banks. After making various

transfers designed to conceal the fraud, they then asked that the funds be wired to

accounts in Jordan. Only one bank actually wired the funds. At the request of

Abuhouran’s wife, PNC Bank wired $185,000 to an account in Jordan in the name of

Tony Abuhouran.

        They then cut their electronic monitoring bracelets and attempted to flee the

country. Appellant’s brother, sister, wife and children were successful and fled to Jordan,

but Abuhouran was apprehended at Kennedy Airport.

        A week later, Abuhouran was sentenced on his conviction in the BBV scheme. He

was later indicted with one count of conspiracy to commit fraud and obstruct justice, in

violation of 18 U.S.C. § 371, and three counts of mail fraud, in violation of 18 U.S.C. §

1241.

        Abuhouran and the Government entered into a plea agreement in which the

Government agreed to dismiss the mail fraud charges and Abuhouran agreed to plead

guilty to the conspiracy charge and agreed:



                                              3
       In exchange for the undertakings made by the government in entering this
       plea agreement, the defendant voluntarily and expressly waives all rights to
       appeal or collaterally attack the defendant’s conviction, sentence, or any
       other matter relating to this prosecution, whether such a right to appeal or
       collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C.
       § 2255, or any other provision of law.

(App. at 9). The agreement provided two instances in which Abuhouran could appeal his

sentence, neither applies here.

       Under the terms of the agreement, the Government was required to recommend

that all but 24 months of the 60-month sentence run concurrent with the BBV sentence.

The Government was not required to make this recommendation, however, if Abuhouran

failed to meet certain conditions. Specifically, Abuhouran was required to take all steps

“within his power” to assure the return of the funds to PNC Bank. Failure to return the

funds relieved the Government of its obligation under the agreement. 1



1        The provision stated: “8. The defendant agrees that, as a condition of this plea
agreement, he is obligated to take all steps, within his power, to assure that $185,000
which was wired from PNC Bank to an account in the defendant’s name at Arab Jordan
Investment Bank on August 14, 1997 is returned to the custody of PNC Bank (“PNC”)
prior to the date of sentencing in this case, including, without limitation, executing any
documentation reasonably required to secure such release, communicating with counsel
and other third parties of his position, withdrawing any pending litigation or appeal, not
filing any new litigation or soliciting or encouraging others to file new litigation, and fully
cooperating with counsel for PNC. . . . The defendant agrees to make every effort to
assure that Nasim Hattar, Izdehar Abuhouran, and any other person acting on the
defendant’s behalf or on behalf of Nasim Hattar and Izdehar Abuhouran, including
counsel, will likewise take all necessary steps to return the $185,000 to PNC. The
defendant agrees that if all of this money is not returned to PNC prior to the date of
sentencing, the government may declare a partial breach of this plea agreement, and is
relieved of its consent in this agreement to recommend that part of the 60 month sentence
                                                                                  (continued...)

                                               4
       The money was never returned. Abuhouran did sign legal documents releasing

any claim to the funds and did instruct his attorney in Jordan to end legal action to

retrieve the funds. 2 When PNC Bank attempted to claim the money, however, they

discovered that the money was no longer in the possession of the courts in Jordan. As a

result of a lawsuit against Abuhouran, the Jordan Court had released the money to a third

party. The Government contends that this third party was Abuhouran’s brother Adam.

The District Court found that because Abuhouran had breached the plea agreement, the

Government was not required to recommend the sentence provided for by the plea

agreement. The District Court found that Abuhouran did nothing to determine whether

Adam had the money or to convince Adam to return the funds; thus, he had not taken all

steps within his power to secure the return of the money. Thus, the District Court adopted

the Government’s recommendation and imposed a 60-month sentence, 42 months to run

consecutively with the BBV sentence and 18 months concurrently.

       If an appellate waiver is entered into knowingly and voluntarily, it is a permissible

negotiating tool. Such a waiver is impermissible only when enforcing the waiver would

amount to a miscarriage of justice. In United States v. Khattak, 273 F.3d 557, 563 (3d.


1       (...continued)
provided by this agreement run partially concurrently with the other federal sentence the
defendant is serving.” (App. at 7-8).


2       In legal proceedings regarding ownership of the funds, Abuhouran and his family
claimed the money belonged to them. PNC Bank claimed that the money was rightfully
theirs.

                                              5
Cir. 2001), we adopted a series of factors initially set forth by the Court of Appeals for

First Circuit in United States v. Teeter, 257 F.3d 14 (1st Cir. 2001). The six factors we

must consider in determining whether a miscarriage of justice results by enforcing a

waiver are: (1) the clarity of the error, (2) the gravity of the error, (3) the character of the

error, (4) the impact of the error on the defendant, (5) the impact of correcting the error

on the Government and (6) the extent to which the defendant acquiesced in the result.

Khattak, 273 F.3d at 565 (citing Teeter, 257 F.3d 14).

       All the Khattak factors presuppose error. We find none. First, the District Court

held a hearing and made factual findings that support the sentence imposed. Second,

Abuhouran still reaped the benefit of his plea bargain—the mail fraud charges were

dropped and he was given 18 months concurrent time. Third, the character of any error

would be in the District Court’s factual findings, in which we find no error. Fourth, even

had the court erred, Abuhouran still reaped the benefit of the bargain. Fifth, the impact

on the Government is that it would lose the benefit of its bargain— the waiver clause.

Finally, as to acquiescence, this issue was anticipated by Abuhouran. When Abuhouran

expressed his concern about what would happen if his reasonable actions were not

enough, the judge stated, “you are in the horns of the dilemma and if you don’t want to

take that step, we can go to trial on the matter.” (Sentencing Trans. at 16).

       Finally, we note that a defendant who signs an appellate waiver may nonetheless

appeal if the government breaches its obligations under the plea agreement. United States



                                               6
v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989). This is not such a case. Here, the District

Court concluded, and we agree, that the Government did not breach its obligations under

the plea agreement. Because the government fulfilled its obligations under the terms of

the plea agreement, and it would not be unjust to enforce the appellate waiver, the

Government’s motion to enforce the appellate waiver and dismiss the appeal is granted.




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