                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-2003

USA v. Hakim
Precedential or Non-Precedential: Precedential

Docket No. 02-3720




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                       PRECEDENTIAL

                           Filed September 22, 2003

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                 No. 02-3720


        UNITED STATES OF AMERICA
                      v.
            KHALIL ABDUL HAKIM
                   a/k/a
             ANTHONY LOWERY
                    Khalil Abdul Hakim,
                        Appellant

On Appeal From the United States District Court
    For the Eastern District of Pennsylvania
             (D.C. No. 02-cr-00131-1)
   District Judge: Honorable John R. Padova

            Argued: June 30, 2003
   Before: SLOVITER, AMBRO, and BECKER,
                Circuit Judges

          (Filed: September 22, 2003)
                           2


                    ROBERT EPSTEIN (Argued)
                    Assistant Federal Defender
                    DAVID L. McCOLGIN
                    Supervising Appellate Attorney
                    MAUREEN KEARNEY ROWLEY
                    Chief Federal Defender
                    Federal Court Division
                    Defender Association of Philadelphia
                    Suite 540 West - Curtis Center
                    Independence Square West
                    Philadelphia, Pennsylvania 19106
                    Counsel for Appellant
                    PATRICK L. MEEHAN
                    United States Attorney
                    LAURIE MAGID
                    Deputy United States Attorney for
                    Policy and Appeals
                    ROBERT A. ZAUZMER (Argued)
                    Assistant United States Attorney
                    Senior Appellate Counsel
                    FLOYD J. MILLER
                    Assistant United States Attorney
                    615 Chestnut Street
                    Suite 1250
                    Philadelphia, PA 19106-4476
                    Counsel for Appellee


               OPINION OF THE COURT

BECKER, Circuit Judge.
  Khalil Abdul Hakim was charged in connection with the
robbery by two armed men of a PNC Bank in Norristown,
Pennsylvania after an eyewitness saw a truck bearing a
“Boone’s Moving and Hauling” sign speed away from a
parking lot near the robbery. Hakim was one of three
employees of Boone’s, and the other two employees
identified him as one of the robbers from a “somewhat
blurred” [A283] photograph from the scene of the crime. A
jury subsequently convicted Hakim of four counts: (1)
                             3


conspiracy to commit armed bank robbery, 18 U.S.C. § 371;
(2) armed bank robbery, 18 U.S.C. § 2113(d); (3) using and
carrying a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1); and (4) using, carrying, and
brandishing a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii).
  Hakim makes two contentions on appeal. First, he
asserts that the District Court erred by refusing to grant
his motion for a mistrial based on the admission of
testimony that Hakim “smokes crack,” “take[s] pills,” and
will take “anything that will make him high.” [A451.]
Although the District Court instructed the jury to disregard
this testimony, Hakim contends that the instruction came
too long after the testimony (30 minutes), by which point
the substance of the testimony had become “etched in
granite” in the minds of the jurors and thus incurable by
instruction. Hakim also submits that the District Court’s
curative instruction to the jury was neither precise nor
strong enough: it did not specifically mention that the jury
was to disregard the testimony about Hakim’s drug use,
but rather referred to the testimony more generally, and, in
Hakim’s submission, it did not adequately emphasize to the
jury that the testimony about Hakim’s drug use should play
no part in its deliberations.
  Although the timing of a jury instruction may impact
whether the damage from improperly admitted testimony
can be undone, we conclude that the jury instruction was
in fact curative. We generally presume that juries follow
instructions given by the District Court, and the time lapse
between the testimony and the curative instruction here
was not long enough to overcome that presumption.
Moreover, during much of the thirty minutes that passed,
the jury was in recess and was presumably not
contemplating Hakim’s drug use, a fact which further
suggests that the testimony had not become indelibly
ingrained in the minds of the jurors. As to the content of
the instruction, it appears that the District Court made a
considered decision not to mention the word “drugs” a
second time while giving the instruction, so as not to
compound the damage done by the admission of the
testimony, an approach with which Hakim’s counsel
                                   4


apparently agreed since he did not object to the vagueness
or weakness of the jury instruction. We conclude that the
District Court did not err in the language of this
instruction.
   Hakim’s second contention is that he was denied the
right to a fair trial because the government made reference,
both during its questioning of Melvin Boone and its closing
arguments, to the following: (1) the fact that he was
Muslim; (2) his position as a Muslim spiritual leader; (3) his
ability to speak Arabic; and (4) his travel to Saudi Arabia.
The government alleges that it offered this to demonstrate
that Boone, who identified Hakim as the robber in the
surveillance photograph, respected Hakim as a spiritual
and worldly man and that therefore Boone would not lie
about his identification. Hakim responds that the
government made reference to his faith and his travels to
Saudi Arabia to suggest that he had connections to
terrorism; the trial followed shortly after the tragedy of
September 11, 2001 (“9/11”).
   We are underwhelmed by the government’s explanation,
and especially its contention that the prosecutor passed
Hakim’s passport around to the jury and called attention to
the fact that he had traveled to Saudi Arabia in order to
show that Boone thought Hakim was “worldly”; there is no
indication in the record that Boone was even aware that
Hakim had traveled to Saudi Arabia. However, counsel for
Hakim did not object at any point to the government’s
references to Hakim’s faith. Under that circumstance, we
can hold that Hakim was denied the right to a fair trial on
this ground only if we conclude that there was plain error,
which requires, in part, that the error “ ‘seriously affect the
fairness, integrity, or public reputation of judicial
proceedings.’ ”1 Johnson v. United States, 520 U.S. 461, 467
(1997)(quoting United States v. Young, 470 U.S. 1, 15
(1985)). We do not believe that Hakim’s argument survives
this very rigorous test. The judgment of the District Court
will be affirmed.

1. Counsel did move, post-trial, for a new trial on the basis of these
references to Hakim’s faith. The District Court accepted the government’s
explanation for its actions and denied the motion.
                             5


                             I.
  On November 28, 2001, two men brandishing firearms
entered a PNC Bank branch located in Norristown,
Pennsylvania and made off with $14,690. The bank robbers
were caught on film, but as the District Court later noted,
the surveillance photograph was “somewhat blurred.”
[A283.] The first robber entered the bank wearing a
stocking over his face; the second robber (alleged to be
Hakim) followed closely behind and entered the bank with
his face exposed, but covered it with a stocking shortly
thereafter.
   Hakim was connected to the robbery when witness
Robert Petersohn told the police that he had noticed a
black early-to-mid 1980s Chevrolet S-10 pick-up truck with
a sign reading “Boone’s Moving and Hauling” speed away
from a parking lot near the bank at the time of the robbery.
Petersohn worked at an auto body shop in Norristown and,
while taking a cigarette break, he noticed the black Chevy
truck parked very closely next to his own Chevy pick-up;
concerned about potential damage to his customized
vehicle, Petersohn walked over to make sure the black
Chevy had not scraped his own truck. [A187-190.]
Petersohn later saw the pick-up truck drive quickly away
down a back alleyway, but he was not able to see the
occupants of the truck. [A196-97.] Another witness,
Christopher Robbins, saw two men run across the street
from the vicinity of the bank, one of whom got into a black
“early 80’s Chevy” pick-up truck with a sign on it (although
he could not read the sign) and drove away. [A226-229.]
   Investigators located the owners and employees of
Boone’s Moving and Hauling: Melvin Boone, Hakim
(Boone’s business partner), and James Gray, an employee.
Boone and Gray identified Hakim as the man in the
surveillance photograph. The Norristown police found a
black Chevy S-10, with a “Boone’s Moving and Hauling”
sign, parked across from Boone’s home on the morning of
the robbery. The license plate on the truck belonged to a
different truck, which was registered to Hakim. Gray and
Boone stated that Hakim regularly drove the S-10 pick-up
truck. Petersohn identified the vehicle as the one he had
                             6


seen parked next to his truck at the time of the bank
robbery.
  Based on this evidence, the government obtained a
search warrant for Hakim’s house. They found a baseball
cap with an American flag on it similar to the one the
second robber was wearing in the surveillance photograph.
[A396-97.] They also found a pair of gray sweat pants
similar to the one worn by the second robber. They did not,
however, find the distinctive sweatshirt worn by the second
robber. [A416.]
  Three days after the bank robbery, Hakim purchased a
used Lexus automobile for $6,700 in cash (nearly half the
amount of money stolen.) [A171-72.] The vehicle was
purchased with new $100 bills. [A172.] However, Hakim
points out that he and Boone had received $4000 for a
moving job shortly before the purchase of the Lexus and
that he had purchased vehicles in the past for cash:
another Lexus three years earlier for $5,300 and a Jeep for
$6,000. Hakim also notes that he had received income from
various rental properties he owned.
  The initial description of the second bank robber given by
the bank employees present at the time of the robbery did
not match Hakim’s appearance. Seqora Ward, the bank’s
service manager, testified that she made eye contact with
the second robber before he put the stocking over his face.
She had initially told police that the robber was “dark
skin[ned],” [A361.], although at trial she testified that he
had “light brown” skin. [A144.]. Hakim is a light-skinned
African American man. Tawana West, the bank’s sales
manager, told officers that the second robber was “dark
skinned” and between thirty-five and forty-five years of age.
[A361.] Hakim is fifty-two years old. West also stated that
the second robber was six feet tall and was of “medium
weight.” [A161-62.] Hakim stands five feet nine inches tall
and weighs 205 pounds. [PSI #47.] The surveillance
photograph shows that the second robber was
approximately five foot nine and had a full beard.
   Hakim was charged with four counts of armed bank
robbery. The jury returned a verdict convicting Hakim on
all counts and he was sentenced to fifty two months on
                                7


Counts One and Two, to run concurrently, and 84 months
on Counts Three and Four, to run concurrently to each
other but consecutively to Counts One and Two. The
District Court also imposed five years of supervised release,
restitution in the amount of $14,698 and a special
assessment of $400. Hakim timely appealed.
   The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review the District Court’s denial of a mistrial
for abuse of discretion. See United States v. Weaver, 267
F.3d 231, 245 (3d Cir. 2001), cert. denied, 534 U.S. 1152
(2002). Since counsel objected neither to the content of the
curative instruction nor to the references to Hakim’s faith
at trial, we review for plain error the content of the
instruction and the question whether the government
violated Hakim’s right to a fair trial by making references to
his faith. See United States v. Brennan, 326 F.3d 176, 182
(3d Cir. 2003). To establish plain error, the defendant must
prove that there is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that
‘affect[s] substantial rights.’ If all three conditions are met,
an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error ‘seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.’ ” Johnson v. United States, 520 U.S. 461, 467
(1997)(citations omitted).

                                II.

                                A.
  We begin with the issue of the introduction of testimony
about Hakim’s drug use. This testimony was elicited in
response to questions posed by defense counsel to Melvin
Boone, one of the government’s key witnesses. Boone was
presented with a surveillance photo of the robbery and he
identified Hakim as one of the participants. In order to
challenge Boone’s credibility as a witness, defense counsel
presented evidence that Boone had been involved in the
sale of illegal drugs. This testimony was given by James
Gray, an employee of Boone’s Moving and Hauling, who
stated that when questioned about the robbery he had told
                                      8


Detective Emrich that Boone had sold crack cocaine out of
his girlfriend’s apartment. [A432-36.] During the re-direct
examination, the government attempted to bring out the
fact that Gray had also told Emrich that Hakim used drugs.
The government argued that this information was
admissible under Fed. R. Evid. 106. Over Hakim’s
objection, the Court permitted the prosecutor to ask Gray,
“Does Khalil (Hakim) smoke rock or do any drugs?” Gray
answered, “Yes. He smokes, I’ve seen him smoking crack
before. I’ve seen him take pills, anything that will make him
high.” [A451].2
   After a recess, at a side bar, the District Judge informed
counsel for both sides that he had decided to change his
ruling on defense counsel’s objection to Gray’s testimony.
Defense counsel welcomed this development and the
Court’s determination to give the jury a curative
instruction, but stated that such an instruction would be
inadequate to cure the prejudice to Hakim and moved for a
mistrial, which was denied. When the jury re-entered the
courtroom, approximately thirty minutes after Gray had
finished testifying, the Judge told them that the evidence of
Hakim’s drug use had been improperly admitted and
instructed them to disregard that testimony. The Court told
the jury:
     Ladies and gentleman of the jury, there is a ruling that
     I do want to make you aware of. You’ll recall that
     during the course of the Government’s redirect
     examination of Mr. Gray, reference was made by the
     Government to a statement that Mr. Gray had made to
     Detective Emrich concerning the defendant’s conduct.
     [Hakim’s counsel] objected to that question, I overruled
     that objection and the contents of a statement made by

2. Fed. R. Evid. 106 provides that:
    When a writing or recorded statement or part thereof is introduced
    by a party, an adverse party may require the introduction at that
    time of any other part or any other writing or recorded statement
    which ought in fairness to be considered contemporaneously with it.
  The decision to admit the answer under Rule 106 was plainly
incorrect, as the Court later conceded.
                              9


    Mr. Gray to Detective Emrich during that interview,
    was testified to by Mr. Gray.
    I’ve decided to change my ruling in that regard. I am
    going to sustain the defendant’s objection to that
    testimony. I’m going to strike that testimony out of this
    case completely and I instruct you — and this is an
    instruction which you must follow — that you are to
    disregard completely and entirely that question and the
    answer that was given to that question that has — that
    is to play no part whatsoever in your consideration
    with respect to the charges that have been made
    against this defendant in the indictment.
    The only thing that this defendant is on trial for in this
    courtroom — the only thing he’s on trial for — is that
    charged in the indictment and you know all about that
    up to now and I don’t want anything at all to distract
    you from that focus and from that analysis. So,
    therefore, disregard that testimony completely and
    entirely.
[A469-70.]
  Hakim contends that he was prejudiced by the Court’s
initial decision to admit the testimony and that the Court’s
curative instruction was insufficient.
   We will assume, without deciding, that Gray’s testimony
about Hakim’s drug use was prejudicial. This brings us to
the question whether the District Court’s instruction to the
jury to ignore that part of Gray’s testimony was sufficient to
cure whatever prejudice may have resulted from it. Hakim
asserts that it was not, for two reasons: it came too long
after the key testimony and it was too vague to be effective.

          1.   The Delay in Giving the Instruction
  Approximately thirty minutes passed between Gray’s
testimony about Hakim’s drug use and the District Court’s
curative instruction. Hakim submits that by the time the
Court gave its instruction, the fact of Hakim’s drug use was
already indelibly etched on the minds of the jurors,
resulting in incurable prejudice against him.
                              10


   We begin our analysis with the presumption that juries
follow the instructions given by district courts. See United
States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993)(“In
reviewing the district court’s handling of the evidence that
was subsequently stricken from the record, we presume
that the jury will follow a curative instruction unless there
is an ‘overwhelming probability’ that the jury will be unable
to follow it and a strong likelihood that the effect of the
evidence would be ‘devastating’ to the defendant.”)(citations
omitted). The question then is whether the delay in this
case was sufficient to overcome this presumption. We
believe that it was not. We agree with Hakim that the lapse
of time between an error and a curative instruction can be
significant. In United States v. Gullo, for example, while the
substance of particular curative instructions given at trial
was adequate, “they came some twenty-four hours after the
inadmissible question had been injected into the case” and
“[w]hatever efficacy curative instructions possess cannot
help but be weakened by the lapse of time.” 502 F.2d 759,
762 (3d Cir. 1974). See also United States v. Vaulin, 132
F.3d 898, 901 (3d Cir. 1997)(denying the defendant’s
request for a new trial because “the trial judge immediately
gave a strong curative instruction”)(emphasis added); United
States v. Traitz, 871 F.2d 368, 398 (3d Cir. 1989)(noting
that a “timely curative instruction [was] given by the district
judge”).
  Under the circumstances of this case, however, the delay
was insufficient to overcome the presumption that the jury
adhered to the dictates of the curative instruction. First,
the delay was only about thirty minutes long, significantly
shorter than the twenty-four hour delay at issue in Gullo.
Second, much of the delay was taken up by a recess,
during which the jurors were not hearing testimony and
were taking a break from their contemplation of the case.
Under these circumstances, we conclude that the fact of
Hakim’s drug use had not become so ingrained in the
minds of the jurors that the curative instruction was
insufficient to ameliorate any prejudice Gray’s testimony
might have caused Hakim.
  We acknowledge that our conclusion arguably conflicts
with that of the Court of Appeals for the Sixth Circuit in a
                               11


similar case, United States v. Solivan, 937 F.2d 1146 (6th
Cir. 1991). In Solivan, the defendant was on trial for selling
cocaine, and the prosecutor urged the jury during his
closing arguments to send a message to other drug dealers
that “we don’t want that stuff in Northern Kentucky.” Id. at
1148. After twenty minutes had passed, including a recess,
the district court admonished the jury, “[d]o not consider
any urgings by the prosecutor to send messages to
anybody. We’re not here to send messages to anybody.
We’re here to try this defendant’s case.” Id. at 1149. On
appeal, the Court of Appeals for the Sixth Circuit concluded
that “[t]he admonition given by the district court in this
case was given too late to eradicate the prejudice from the
jurors’ minds” and that the comments had become “ ‘etched
in granite’ in the jurors’ minds.” Id. at 1157. However, we
view the Court’s statement as hyperbolic, animated perhaps
by the egregious nature of the prosecutor’s statement. We
see no reason why an admonition twenty minutes (or thirty,
in this case) after the objectionable comments would be
ineffective.

             2.   The Specificity of the Instruction
  Hakim also argues that the District Court’s instruction
was too vague to ensure that the jury would disregard the
testimony about his drug use. Rather than directly telling
the jury to ignore any statements about Hakim’s drug use,
the Court chose to describe Gray’s testimony only
indirectly:
    You’ll recall that during the course of the Government’s
    redirect examination of Mr. Gray, reference was made
    by the Government to a statement that Mr. Gray had
    made to Detective Emrich concerning the defendant’s
    conduct.
[A469-70].
  The government argues that for a number of reasons the
District Court’s decision not to refer directly to the drug use
testimony was not error. First, the government asserts that
because the District Judge was actually able to see the
jury, he was in a good position to gauge whether the jurors
understood the reference to Hakim’s “conduct.” Second, the
                               12


government submits that the District Court purposefully
declined to use the word “drugs” in its instruction because
it did not want to cause Hakim further prejudice by
explicitly repeating the testimony. Third, the government
points out that Hakim’s counsel did not object to the
phrasing of the instruction, a fact which suggests that
counsel agreed with the Judge’s approach and believed the
jury understood what the Judge was referring to.
  We do not think that the instruction was impermissibly
vague. The District Judge was discussing testimony that
had been heard mere minutes earlier and was in a much
better position than this Court to determine whether the
jury understood what he was referring to. At all events,
based on the transcript, the object of the Court’s reference
seems clear, and we cannot say that the content of the
instruction amounted to plain error.

  B.     The Government’s References to Hakim’s Muslim
                           Faith
  Most of the government’s references to Hakim’s faith
occurred during examination of Boone. Boone explained
that he had met Hakim while attending a spiritual class,
and they ultimately became business partners at Boone’s
Moving:
    Q. Would you describe for the jury . . . your
    relationship with the defendant.
    A. Yes. We were very close friends. As a matter of fact,
    spiritually, we was — we used to - - we used to go to
    Jumal, which is our spiritual classes together.
    Q. All right. When you say spiritual, what particular
    branch of religion do you subscribe to?
    A.    Islam - - Muslims.
    Q.    Muslims?
    A.    Right.
    Q.    So you attended spiritual classes together?
    A.    Right.
                             13


Q. What role if any, did he play in the classroom
setting?
A. He was very intelligent, he was the Eman [sic], that
was, like, a head priest.
Q.      Head priest.
A.      Yes.
. . .
Q. Now I want to explore his role as Eman [sic] - - I
believe as you call it - - and what position is that now
in the Muslim faith?
A. That would be, like, head position to - - like a
teacher in the class. In other words, he would be the
head man of the Jumal, he would read the Koran and
explain to us, different scenarios in the book. And he
would make prayer and stuff like that, lead the prayer.
Q.      Was he able to do this in English or Arabic?
A.      Both - - both [A247-48.]
. . .
Q. Why did the two of you agree on that particular
arrangement in terms of the duties that each of you
would perform [in the business?].
A. Well, see, Khalil’s educational background was
strong and he had been, basically, scholarships he had
and stuff like that. . . .
. . .
Q. Is it fair to say, you trusted him to handle the
money?
A.      Exact.
Q.      And why did you have such trust in him?
A. I looked up to Khalil, I looked up to him a lot and
- -
Q.      Tell the jury why?
A. Spiritually, he - - spiritually, I looked up to Khalil
very a lot, because he was an idol for me. I mean, I
                             14


    never had nobody to really help me come through life,
    but I never put - - put trust in nobody, but I put trust
    in him, because I looked up to Khalil very - - so much
    - - I looked up to him.
[A252.]
  During the government’s closing arguments, the
prosecutor passed around Hakim’s passport, noting that he
had traveled to Saudi Arabia:
    Now, [Boone] told you that he had met the defendant,
    he had known him for about ten years, they were both
    members of the same religious community, Muslims.
    The defendant occupied the role of Iman, the spiritual
    lead of the congregation and that he looked up to him,
    he admired him. He said, he was a teacher, he was the
    leader.
    And as you will see from the defendant’s passport and
    I - - I urge you to take the time to look at this passport,
    not only from the standpoint of identification, but the
    facial hairs that was [sic] described by Seqora Ward
    and the skin tone color. But you may remember that I
    asked the question of Mr. Boone, he’s the spiritual
    leader? Yes. He speaks Arabic and English. And if you
    will look in the passport, you will notice that in 1996,
    the defendant visited Saudi Arabia and there are a
    number of other stamps in the passport, all showing
    that he’s a worldly man, he’s well traveled.
    Of course, a person like Melvin Boone - - from a family
    of twenty-one children, someone who cut grass, saved
    $1200 to try to start a business on his own, someone
    with no world travel, none of the worldly experiences
    that this defendant would have, of course Melvin Boone
    would respect a man like this.
[A475.]
  Hakim argues that these references have no relation to
the crime with which he was being charged: bank robbery.
Boone was brought to the stand to identify Hakim as the
second robber in the surveillance photograph. As such,
Hakim maintains that the prosecution had only to establish
that Boone was able to identify Hakim; testimony that he
                                   15


had known Hakim for 10 years would have been sufficient.
Hakim therefore contends that the government elicited the
testimony about his faith in an attempt to peg him as a
potential terrorist in the minds of the jurors and that such
use of race or ethnicity is improper. See, e.g., Moore v.
Morton, 255 F.3d 95, 113 (3d Cir. 2001)(holding that where
the prosecutor suggested that the fact that the black
defendant was married to a white woman, allegedly showing
his preference for white women, made it more likely he had
raped the white victim, “[r]acially or ethnically based
prosecutorial arguments have no place in our system of
justice.”).
   As noted above, because Hakim’s lawyer did not object to
the references to Hakim’s faith at trial, we review the
question whether the government violated Hakim’s right to
a fair trial for plain error. As Hakim points out, there are a
handful of cases in which Courts of Appeals have remanded
a matter for a new trial on the basis of the prosecutor’s
reference      to    a   defendant’s   race    or    ethnicity,
notwithstanding the failure of defense counsel to object at
trial. In United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990),
for example, the Court determined that the defendant, a
Jamaican, had been deprived of the right to a fair trial,
despite the fact that defense counsel had not raised an
objection at trial, because the prosecutor made references
to the fact that the retail drug market in Washington D.C.
had been taken over by Jamaicans, thereby suggesting that
it was more likely that the defendant was guilty of the drug
sales with which he had been charged. Although the
government argued that these references were “fleeting” and
“insignificant,” the Court concluded that the “fairness,
integrity [and] public reputation of judicial proceedings”
were “seriously affected.” Id. at 26.3 Similarly, in United
States v. Cabrera, 222 F.3d 590 (9th Cir. 2000), the Court
found that the government’s references to the drug market
falling under the control of Cuban dealers, its suggestion
that the Cubans were flight risks, and its description of

3. Although this case was decided before United States v. Olano, 507 U.S.
725 (1993), which laid out the plain error standard we employ here, the
Doe panel appears to have employed substantially the same plain error
test.
                             16


how Cubans tended to package their drugs, were plain
error where defendant was also Cuban. See also Withers v.
United States, 602 F.2d 124, 125 (6th Cir. 1979)(holding
that prosecutor’s reference to the fact that “not one white
witness” has produced contradictory evidence was plain
error).
   While we find the government’s mention of Hakim’s
religion disturbing, we conclude that Hakim cannot
demonstrate that it amounted to plain error. This is
primarily because the government offers a plausible
explanation for why it made these references to Hakim’s
faith: it wanted to demonstrate that Boone respected Hakim
and had no incentive to lie about his identification. The fact
that the government offered this permissible explanation
and that it never directly drew the link between Hakim’s
faith and the events of 9/11 distinguish this case from Doe
and Cabrera, in which the government offered no such
explanation and drew direct links between the defendants’
race or ethnicity and the crimes with which they were
charged.
   To meet his burden on plain error review, Hakim would
have to show that the government’s actions “seriously
affect[ed] the fairness, integrity, or public reputation of
judicial proceedings,” Johnson v. United States, 520 U.S.
461, 467 (1997)(quoting United States v. Young, 470 U.S. 1,
15 (1985)), a showing difficult to make when there is a
permissible explanation for the government’s conduct. He
has not made it here, hence we are constrained to reject
Hakim’s contention that these actions violated his right to
a fair trial.
  Despite so holding, we note that the government’s
explanation for its references to Hakim’s faith, and even
more so for its showing the jury Hakim’s passport to
demonstrate that he had traveled to Saudi Arabia, is by no
means compelling. We do not reverse given the plain error
standard of review, but we are troubled that the
government, by making the references so soon after 9/11,
needlessly made this case close.
  The judgment of the District Court will be affirmed.
                            17


A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
