               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0555n.06

                                             No. 13–1723                                   FILED
                                                                                      Jul 24, 2014
                         UNITED STATES COURT OF APPEALS                          DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )         ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE EASTERN
v.                                                         )         DISTRICT OF MICHIGAN
                                                           )
ALI DARWICH,                                               )
                                                           )              OPINION
       Defendant-Appellant.                                )
                                                           )


BEFORE: SILER and KETHLEDGE, Circuit Judges; and WATSON, District Judge.*

       MICHAEL H. WATSON, District Judge.                       Defendant-Appellant Ali Darwich

(“Darwich”) was convicted of thirty-three counts of various federal crimes, including seven

counts of Using Fire to Commit Fraud in violation of 18 U.S.C. § 844(h)(1). The district court

sentenced Darwich to 1,647 months of imprisonment, 1,560 of which it imposed as a mandatory

minimum sentence pursuant to 18 U.S.C. § 844(h)(1). Darwich appeals his sentence, through

counsel, arguing that the district court improperly applied 18 U.S.C. § 844(h)(1). Darwich also

filed a pro se brief requesting we vacate his conviction and sentence on other various grounds.

For   the    following       reasons,   we     AFFIRM          the    district   court’s   judgment.




*
The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
                                                                        United States v. Darwich
                                                                              Case No. 13-1723

                                      I. BACKGROUND

       Darwich was indicted on numerous federal crimes in connection with a fraud scheme to

flood, vandalize, and set fire to several residences and businesses to collect insurance proceeds.

Counts 1–12 charged Darwich with Wire Fraud, Aiding and Abetting, in violation of 18 U.S.C.

§§ 1343, 2; Counts 13–27 charged him with Mail Fraud, Aiding and Abetting, in violation of 18

U.S.C. §§ 1341, 2; Counts 28–34 charged him with Use of Fire to Commit Fraud, in violation of

18 U.S.C. §§ 844(h)(1), 2; and Count 35 charged him with Conspiracy to Launder Monetary

Instruments, in violation of 18 U.S.C. § 1956(h). A jury convicted Darwich of thirty-three of the

thirty-five counts, acquitting him of Counts 19 and 24.

       At issue in this appeal is the district court’s sentence as to Counts 28–34, which charge

Darwich with using fire to commit a felony in violation of 18 U.S.C. § 844(h)(1). Section

844(h)(1) states in relevant part:

       (h) Whoever—

               (1) uses fire or an explosive to commit any felony which may be
               prosecuted in a court of the United States . . .

               shall, in addition to the punishment provided for such felony, be sentenced
               to imprisonment for 10 years. In the case of a second or subsequent
               conviction under this subsection, such person shall be sentenced to
               imprisonment for 20 years. Notwithstanding any other provision of law . .
               . the term of imprisonment imposed under this subsection [shall not] run
               concurrently with any other term of imprisonment including that imposed
               for the felony in which the explosive was used or carried.

18 U.S.C. § 844(h)(1).




                                                2
                                                                          United States v. Darwich
                                                                                Case No. 13-1723

       In Darwich’s pre-sentence investigation report (“PSR”), the probation officer applied

§ 844(h)(1) to require an enhanced sentence of ten years for Darwich’s first § 844(h)(1)

conviction and an additional twenty years for each of the six subsequent § 844(h)(1) convictions,

to run consecutively, resulting in a 130-year mandatory minimum sentence of imprisonment.

       Darwich objected to the PSR’s application of 18 U.S.C. § 844(h)(1). He specifically

objected to paragraphs sixty-nine and seventy, which set forth a mandatory ten-year minimum

sentence for his first § 844(h)(1) conviction, to run consecutive to all other counts, and a twenty-

year mandatory minimum sentence for each of his remaining § 844(h)(1) convictions, to run

consecutive to each other and all counts. Darwich did not develop his objection except to say

that he would “file a sentencing memorandum challenging the mandatory consecutive minimum

sentences based on separation of powers, equal protection, due process right to individualized

sentencing, statutory construction and the Sixth and Eighth Amendments to the Constitution.”

       Darwich then filed a sentencing memorandum, but he addressed only four of those six

bases. He did not develop objections based on statutory construction or the Sixth Amendment.

Nor did he challenge the probation officer’s conclusion that § 844(h)(1) subjected Darwich to a

mandatory minimum sentence of 130 years. Rather, after outlining the statutory language, he

concluded that “[b]ased on the directive of the statute, it appears that the Court must impose the

following sentences: [listing the sentences as determined by the probation officer].”1 Darwich

then argued that imposing this lengthy, mandated sentence violated the separation of powers

doctrine, the right to an individualized sentence, equal protection, and the Eighth Amendment.

1
 Darwich also stated that “[g]iven the mandatory minimum sentences imposed consecutively on
Counts 28 through 34, the minimum sentences imposed on those counts is 130 years.”
                                                 3
                                                                        United States v. Darwich
                                                                              Case No. 13-1723

       Darwich persisted in these four constitutional objections at sentencing. Again, however,

he did not make a statutory construction argument or challenge the probation officer’s

conclusion that § 844(h)(1) subjected him to a 130-year mandatory minimum sentence. Rather,

his counsel stated: “I think that the consensus between the Government, and the defense and the

Probation Department at this point, is that the mandatory minimum before you even address the

underlying felonies is 130 years.”

       The district court overruled Darwich’s objections. It sentenced Darwich to eighty-seven

months for the wire fraud, mail fraud, and conspiracy convictions, to run concurrent; ten years

for the first § 844(h)(1) conviction, to run consecutive to all other counts; and twenty years for

each of the other six § 844(h)(1) convictions (130 years total), to run consecutive to each other

and all other counts.2 This resulted in a total of 1,647 months of imprisonment. Darwich filed a

timely notice of appeal.

                                       II. DISCUSSION

A. Counsel’s Claim

       Darwich appeals the district court’s sentence, arguing that it erred in interpreting

18 U.S.C. § 844(h)(1) to require consecutive enhanced sentences for multiple § 844(h)(1)

convictions within a single prosecution. He maintains that the mandatory sentences outlined in

§ 844(h)(1) do not apply to separate counts of a single prosecution.        Rather, he interprets

§ 844(h)(1) to provide for a single enhanced sentence regardless of the number of § 844(h)(1)


2
 The district court also sentenced Darwich to two years of supervised release as to each count, to
run concurrently; ordered $1,204,867.62 in restitution; and ordered the forfeiture of certain
proceeds, none of which Darwich challenges.

                                                4
                                                                         United States v. Darwich
                                                                               Case No. 13-1723

convictions within a prosecution. He further argues that § 844(h)(1) permits district courts to

determine whether the sentences for separate § 844(h)(1) convictions within a prosecution should

run concurrently or consecutively to each other.

       The Government maintains that 18 U.S.C. § 844(h)(1) permits consecutive sentences for

multiple § 844(h)(1) convictions that are part of a single case. The Government argues we need

not reach the merits of this issue, however, because Darwich waived, or at least forfeited, his

argument as to the statutory interpretation of § 844(h)(1).

       “In determining whether we have authority to consider an argument not raised below, we

distinguish between ‘waiver’ and ‘forfeiture.’” United States v. Holland, 522 F. App’x 265, 272

(6th Cir. 2013). “‘Waiver’ is the intentional relinquishment or abandonment of a known right.”

United States v. Hall, 373 F. App’x 588, 591 (6th Cir. 2010); United States v. Aparco-Centeno,

280 F.3d 1084, 1088 (6th Cir. 2002). As such, “a basic failure to bring an issue to the district

court’s attention does not create waiver. Rather, waiver requires some affirmative act that shows

a party has willfully declined to assert a right.” Holland, 522 F. App’x at 272 (citation omitted).

For example, it is well established that “the withdrawal of an objection would constitute a

waiver.” Hall, 373 F. App’x at 592. “But we have never held that a defendant must make an

objection, then withdraw it, before [a] point can be waived.” Id. Indeed, “‘[a]n attorney cannot

agree in open court with a judge’s proposed course of conduct and then charge the court with

error in following that course.’” Aparco-Centeno, 280 F.3d at 1088 (citation omitted); see also,

Hall, 373 F. App’x at 592 (citing Aparco-Centeno); United States v. Smith, 749 F.3d 465, 494

(6th Cir. 2014) (citing Aparco-Centeno); United States v. Turner, 436 F. App’x 582, 586 (6th


                                                   5
                                                                        United States v. Darwich
                                                                              Case No. 13-1723

Cir. 2011) (citing Hall). Waived claims are not reviewable. Hall, 373 F. App’x at 592; Aparco-

Centeno, 280 F.3d at 1088. In contrast, “[f]orfeiture occurs when a party fails ‘to make the

timely assertion of a right,’” and we review forfeited claims for plain error. United States v.

Rodriguez, 544 F. App’x 630, 633 (6th Cir. 2013).

       The record confirms that Darwich waived his claim as to the statutory interpretation of

18 U.S.C. § 844(h)(1). Although he listed “statutory construction” as one of his objections to the

PSR’s application of § 844(h)(1), Darwich did not explain, develop, or even mention that

objection in his sentencing memorandum, let alone raise the statutory interpretation argument he

now advances on appeal.       Rather, his sentencing memorandum focused only on his four

constitutional objections. And in making those constitutional objections, Darwich explicitly

stated that “[b]ased on the directive of the statute, it appears the Court must impose” a 130-year

mandatory minimum sentence under § 844(h)(1). This conclusion represents an agreement with

the PSR’s interpretation of § 844(h)(1).

       Darwich reiterated his constitutional objections at the sentencing hearing but again did

not challenge the conclusion that the statute required a mandatory minimum sentence of

130 years.3 In fact, he explicitly conceded, through defense counsel, that the application of

§ 844(h)(1) to his case required a mandatory minimum sentence of 130 years. Indeed, in

defending his separation of powers argument at the sentencing hearing, defense counsel stated,

“[b]ut when we get to the fourth superseding indictment and Mr. Darwich, I think that the



3
 When asked if he had any additional objections or concerns at the conclusion of the sentencing
hearing, defense counsel responded that he did not and was only preserving his prior objections.

                                                6
                                                                         United States v. Darwich
                                                                               Case No. 13-1723

consensus between the Government, and the defense and the Probation Department at this point,

is that the mandatory minimum before you even address the underlying felonies is 130 years.”

       We have previously found a defendant to have waived a claim under similar facts. In

Hall, the defendant challenged the district court’s application of a sentencing enhancement

pursuant to the Armed Career Criminal Act. 373 F. App’x at 591. Although the defendant’s

counsel had previously reserved the right to dispute the enhancement at sentencing, he instead

argued that the prosecutor should have exercised more prosecutorial discretion. In so arguing,

the defendant’s counsel conceded the applicability of the enhancement and admitted that the

defendant was subject to a mandatory minimum. We found this to constitute waiver of the

defendant’s argument as to the sentencing enhancement. The defendant argued that he could

waive his argument only by objecting to the enhancement and then making an actual, affirmative

withdrawal of that objection.     He maintained that his counsel merely failed to renew his

objection when given the opportunity, rendering his claim forfeited rather than waived. Id. We

rejected this argument, finding that by “acknowledg[ing] the accuracy of the court’s

[enhancement] determination and reiterat[ing] the applicability of the statutory 15-year

mandatory minimum at sentencing,” the defendant waived any claim that the enhancement

should not apply. Id.

       Similarly, defense counsel’s statements in his sentencing memorandum and at the

sentencing hearing in this case represent a concession in open court that the probation officer and

the district court accurately interpreted § 844(h)(1) to impose a 130-year mandatory minimum

sentence. By agreeing with the probation officer and the district court that § 844(h)(1) subjected


                                                7
                                                                        United States v. Darwich
                                                                              Case No. 13-1723

Darwich to a 130-year mandatory minimum, Darwich agreed to the interpretation of the statute

that resulted in that 130-year sentence. As such, Darwich cannot now argue the court erred in

applying the statute in accordance with that interpretation. See Aparco-Centeno, 280 F.3d at

1088 (finding the defendant waived his argument that his two prior felonies should not qualify as

aggravated felonies for sentencing purposes where his counsel did not object to such a finding in

the PSR and explicitly agreed in his sentencing memorandum with the PSR’s position); see also,

Smith, 749 F.3d at 494–95 (finding the defendant waived his argument that the district court

improperly excluded expert testimony where his counsel “unequivocally agreed” at trial that the

witness was not considered an expert); United States v. Donovan, 539 F. App’x 648, 658 (6th

Cir. 2013) (finding the defendant waived his challenge to the district court’s failure to apply an

offense-level reduction where the defendant agreed at sentencing that the reduction was

inappropriate); Holland, 522 F. App’x at 272 (finding the defendant waived his theory that a

search was conducted without consent where his counsel explicitly disavowed the theory at a

suppression hearing and pursued other arguments as to the invalidity of the search)4; Turner,

436 F. App’x at 586 (finding waiver where defense counsel agreed with the Government’s

position at the sentencing hearing); United States v. King, 430 F. App’x 514, 517 (6th Cir. 2011)

(finding the defendant waived his challenge to the application of a sentencing enhancement

where at sentencing the defendant withdrew his objection to the PSR’s application of the
4
 We found that the defendant in Holland “unequivocally asserted a violation of his Fourth
Amendment right,” but “explicitly disavowed the theory that the violation stemmed from entry
into the apartment without consent.” Holland, 522 F. App’x at 272. Similarly, although
Darwich unequivocally challenged the application of the 130-year mandatory minimum sentence
pursuant to § 844(h)(1), he conceded that such a challenge was not based on the PSR’s
conclusion that the statute required such a sentence.

                                                8
                                                                           United States v. Darwich
                                                                                 Case No. 13-1723

enhancement and expressly conceded its applicability); United States v. Ward, 506 F.3d 468, 477

(6th Cir. 2007) (finding waiver of argument that provision of sentencing guidelines is

unconstitutionally vague where the defendant made the argument as an objection to the PSR but

at the sentencing hearing and in a subsequent motion represented that all objections had been

resolved except three other enumerated challenges); compare with, Rodriguez, 544 F. App’x at

634 (finding forfeiture where defense counsel withdrew his objection to certain testimony

“without explicitly conceding admissibility”).

       In sum, Darwich has waived any argument that the district court improperly interpreted

18 U.S.C. § 844(h)(1) to require a 130-year mandatory minimum sentence in his case, and we are

thus unable to review such a claim on appeal.5

B. Darwich’s Pro Se Brief

       About one month after Darwich’s counsel filed an appellate brief on Darwich’s behalf,

Darwich filed his own supplemental brief6 in which he requests we vacate his conviction and

sentence on the grounds that: (1) he was subject to selective prosecution; (2) he was denied the

right to a fair trial by a jury of his peers; (3) the district court erred in determining he breached




5
 We note that we may still review a waived claim where our failure to do so would result in a
plain miscarriage of justice. See, e.g., Humphrey v. United States Attorney General’s Office,
279 F. App’x 328, 331 (6th Cir. 2008) (citation omitted). But a review of the merits of
Darwich’s statutory interpretation claim does not indicate that the district court’s application of
§ 844(h)(1) was an error so egregious so as to qualify as a plain miscarriage of justice.
6
  Although we denied Darwich’s motion to proceed pro se, we granted him leave to file his
supplemental brief.
                                                 9
                                                                          United States v. Darwich
                                                                                Case No. 13-1723

his immunity agreement with the Government; and (4) the district court erred in denying him

funds to obtain a private investigator.7

1. Selective Prosecution

       Darwich, who is of Lebanese descent and Muslim faith, claims he was subject to

selective prosecution on the basis of his ethnicity and religion. He argues the Government chose

to prosecute the Arab participants in the insurance fraud scheme while foregoing prosecution of

more culpable Caucasian and African American participants. Darwich moved to dismiss the

fourth superseding indictment on the ground that the Government chose to prosecute the Arab-

American participants in the conspiracy but not the “White-Americans” or “Blac-Americans”

[sic]. The district court terminated Darwich’s motion without prejudice on the ground that it was

a repetitive, frivolous motion in violation of the court’s previous orders and rules of procedure.

       Darwich also made various pro se motions discussing selective prosecution. Finding no

evidence of such a claim, the district court granted the Government’s motion in limine

precluding him from discussing the issue at trial.

       To the extent Darwich intends to challenge the district court’s failure to dismiss his

indictment on selective prosecution grounds, we review such a claim for clear error. United

States v. Jones, 399 F.3d 640, 644 (6th Cir. 2005) (citation omitted).



7
 It is worth noting that Darwich elected to proceed pro se throughout the majority of his case,
including his trial. The district court appointed him stand-by counsel, from whom the record
indicates Darwich did not seek much assistance. Consequently, the district court found itself
amidst a plethora of pro se motions, the majority of which the district court found frivolous and
repetitive. Many of the arguments Darwich makes in his supplemental brief are the same
arguments he made before the district court.

                                                 10
                                                                         United States v. Darwich
                                                                               Case No. 13-1723

       “Prosecutors have great discretion when determining which cases to prosecute.” United

States v. Brimite, 102 F. App’x 952, 955 (6th Cir. 2004) (citation omitted). “As long as the

prosecutor has probable cause to believe that an accused has committed an offense defined by

statute, decisions regarding whether to prosecute and what charges to file generally rest entirely

within the prosecutor’s discretion.” Id. (citation omitted). “However, the decision to prosecute

may not be based on a defendant’s race, sex, religion, or exercise of a statutory or constitutional

right.” Id. (citation omitted).

       To prevail on a selective prosecution claim, a defendant must show that the
       federal prosecutorial policy had both a discriminatory effect and a discriminatory
       intent. To establish discriminatory intent in a case alleging selective prosecution
       based on race, a claimant must show that the prosecutorial policy was motivated
       by racial animus; to establish discriminatory effect, the claimant must
       demonstrate that similarly situated individuals of a different race were not
       similarly prosecuted.

Jones, 399 F.3d at 645 (citation omitted).

       Darwich has failed to establish either discriminatory intent or discriminatory effect.

Regarding discriminatory intent, Darwich claims that the Government prosecuted him only

because it believed he was funding a terrorist organization in Lebanon, not because it was

interested in prosecuting the fraud scheme. Darwich fails to support this bare allegation. Rather,

the evidence before the district court, including Darwich’s statements to investigators,

establishes that the Government had probable cause to believe that Darwich played a pivotal role

in the insurance fraud scheme.      Regarding discriminatory effect, Darwich alleges that the

Government chose not to prosecute the more culpable Caucasian and African-American

participants in the fraud scheme and specifically points to the Government’s decision not to


                                                11
                                                                           United States v. Darwich
                                                                                 Case No. 13-1723

prosecute Sydney Chavetz. However, Darwich presents no evidence indicating any of these

individuals were similarly situated as is required to establish discriminatory effect.

       In sum, Darwich’s unsubstantiated claims that he was targeted for prosecution as an Arab

Muslim are insufficient to establish selective prosecution, and therefore, the district court did not

clearly err in failing to dismiss the indictment on that ground.

       To the extent Darwich intends to challenge the district court’s order granting the

Government’s motion in limine precluding him from discussing selective prosecution at trial, we

find the district court correctly granted the Government’s motion in limine, as “the defense of

selective prosecution is a matter that is independent of a defendant’s guilt or innocence, so it is

not a matter for the jury.” United States v. Abboud, 438 F.3d 554, 579 (6th Cir. 2006).

       We therefore decline to vacate Darwich’s conviction or sentence on the ground of

selective prosecution.

2. Right to a Fair Trial by a Jury of his Peers

       a. Batson Claim

       Darwich next argues that the Government’s peremptory challenge to the only “Arabic”

juror violated his rights as outlined in Batson v. Kentucky, 476 U.S. 79 (1986).

       “In Batson v. Kentucky . . ., the Supreme Court held that the Equal Protection Clause

forbids the prosecution’s use of peremptory challenges to exclude jurors on the basis of race.”

United States v. Simon, 422 F. App’x 489, 493 (6th Cir. 2011).

       When a party raises a Batson challenge, courts must perform a three-step analysis.
       First, the trial court must determine whether the defendant has made a prima facie
       showing that the prosecutor exercised a peremptory challenge on the basis of
       race. . . . Once a prima facie case is established, the burden shifts to the

                                                 12
                                                                             United States v. Darwich
                                                                                   Case No. 13-1723

          prosecutor to present a race-neutral explanation for striking the juror in question. .
          . . [A]s a final step, reviewing courts must assess the prosecutor’s credibility,
          weigh the strength of the prosecution’s asserted justification against the
          defendant’s prima facie case, and determine whether a defendant has carried his
          burden of proving purposeful discrimination in light of all relevant circumstances,
          including comparative juror analysis and arguments related to pretext.

Id. (internal quotation marks and citations omitted). “On direct review, ‘the trial court’s decision

on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded

great deference on appeal’ and will not be overturned unless clearly erroneous.” United States v.

Odeneal, 517 F.3d 406, 419 (6th Cir. 2008) (citation omitted).

          Darwich claims that: (1) he objected to the Government’s peremptory challenge to the

only “Arabic” juror in the venire based on discrimination; (2) the district court overruled his

objection on the ground that another Arabic speaking juror remained; and (3) in doing so, the

district court accepted the Government’s explanation for its strike without a meaningful review.

          In order to review this claim, we require a transcript of voir dire. Federal Rule of

Appellate Procedure 10 required Darwich to include the transcript in the record, or if it was

unavailable, prepare a statement from his recollection as to what occurred during voir dire, serve

it upon the opposing party, and submit it to the district court for settlement and approval to be

made part of the record. Smith v. Yarrow, 137 F. App’x 778, 780 (6th Cir. 2005) (citing Fed. R.

App. P. 10(b)(2), (c)).8 Because voir dire was not ordered transcribed in this case, Darwich had a

duty to provide a statement of recollection pursuant to Rule 10(c). Id. He did not.



8
    Federal Rule of Appellate Procedure 10 provides, in relevant part:

          (b)(2) Unsupported Finding or Conclusion. If the appellant intends to urge on
          appeal that a finding or conclusion is unsupported by the evidence or is contrary
                                                   13
                                                                           United States v. Darwich
                                                                                 Case No. 13-1723

       Absent a transcript or statement of recollection, we cannot verify that Darwich “made a

proper objection, preserving the issue for appeal[,] or examine the explanation, if any, the district

court may have provided for its decision on the record.” Id. Accordingly, the record before us

does not allow for a review of this claim, and therefore, the issue is waived. See id. (internal

quotations and citations omitted); see also, Lane v. City of Jackson, 86 F. App’x 874, 874 (6th

Cir. 2004) (finding the appellant waived his sufficiency of the evidence claim where he did not

supply the court with a trial transcript, move for the preparation of a transcript at the

government’s expense, or prepare an appropriate statement of evidence under Rule 10(c));

Alhasan v. Pizza Hut of America, 70 F. App’x 828, 829 (6th Cir. 2003) (same).

       b. Fair Cross-Section Claim

       Darwich also argues he was denied his Sixth Amendment right to a jury chosen from a

fair cross-section of the community. “‘Whether a defendant has been denied his right to a jury

selected from a fair cross-section of the community is a mixed question of law and fact, which


       to the evidence, the appellant must include in the record a transcript of all
       evidence relevant to that finding or conclusion.
       ...

       (c) Statement of the Evidence When the Proceedings Were Not Recorded or
       When a Transcript Is Unavailable. If the transcript of a hearing or trial is
       unavailable, the appellant may prepare a statement of the evidence or proceedings
       from the best available means, including the appellant’s recollection. The
       statement must be served on the appellee, who may serve objections or proposed
       amendments within 14 days after being served. The statement and any objections
       or proposed amendments must then be submitted to the district court for
       settlement and approval. As settled and approved, the statement must be included
       by the district clerk in the record on appeal.

Fed. R. App. P. 10(b)(2), (c).

                                                 14
                                                                            United States v. Darwich
                                                                                  Case No. 13-1723

we review de novo.’” United States v. Suggs, 531 F. App’x 609, 618 (6th Cir. 2013) (citation

omitted).

        The Sixth Amendment requires that a jury venire represent a fair cross-section of the

community. Id.

        To show a prima facie violation of this requirement, [a defendant] must
        demonstrate “(1) that the group alleged to be excluded is a ‘distinctive’ group in
        the community; (2) that the representation of this group in venires from which
        juries are selected is not fair and reasonable in relation to the number of such
        persons in the community; and (3) that this underrepresentation is due to
        systematic exclusion of the group in the jury-selection process.” Duren v.
        Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Exclusion is
        “systematic” if it is “inherent in the particular jury-selection process utilized.” Id.
        at 366, 99 S.Ct. 664. Once a defendant establishes a prima facie case, the
        government has the burden to justify the “infringement by showing attainment of
        a fair cross section to be incompatible with a significant state interest.” Id. at 368,
        99 S.Ct. 664.

Id. at 619.

        Darwich claims he asserted a fair cross-section objection at the same time that he asserted

his Batson objection. Without a transcript of voir dire, however, we cannot determine whether

Darwich in fact made a proper objection that is preserved for appeal.             Nevertheless, even

assuming he did, his claim fails on the merits.

        Darwich claims that his jury pool did not consist of a fair cross-section of eligible Arab

and Muslim peers and that the jury selection procedures in the Eastern District of Michigan

systematically exclude Arab and Muslim citizens from the district’s jury pools. Darwich’s claim

fails because he has not presented any evidence of the elements required to establish a prima

facie violation. Rather, his entire argument is based on conclusory allegations. Darwich does



                                                  15
                                                                          United States v. Darwich
                                                                                Case No. 13-1723

state that his jury pool included only one prospective Arab juror and one juror who claimed to

speak Arabic, but “[i]t is incumbent upon the defendant to show more than that a particular jury

panel was unrepresentative.” Id. at 619 (citation omitted). Because Darwich failed to provide

any evidence that a “systematic underrepresentation was ‘inherent in the particular jury-selection

process utilized[,]’” he cannot establish that he was denied his right to a jury selected from a fair

cross-section of the community. We therefore decline to vacate his conviction and sentence on

this ground. Id.9

3. Breach of Immunity Agreement

       Darwich next argues the district court erred in determining that he breached his immunity

agreement with the Government.

       Two main types of immunity the Government may offer a suspect in return for his

disclosure of information are transactional immunity and use immunity. Transactional immunity

“is full immunity from prosecution for any offenses to which [the suspect’s] testimony relates.”

United States v Fitch, 964 F.2d 571, 575 (6th Cir. 1992) (citation omitted). In contrast, use

immunity precludes only the use of the suspect’s statements in a prosecution against him.

Kastigar v. United States, 406 U.S. 441, 453 (1972).          An immunity agreement granting a

defendant use immunity is commonly referred to as a Kastigar agreement. “The conditions that

will constitute a breach of the immunity agreement are governed by the agreement itself.” Fitch,

964 F.2d at 574 (citation omitted). The Government bears the burden of proving a breach, and
9
 Darwich also argues that the district court should have conducted a hearing on his fair-cross
section claim. However, the cases he cites in support require a hearing on Batson challenges, not
on fair-cross section claims. See United States v. McAllister, 693 F.3d 572, 580 (6th Cir. 2012);
United States v. Torres-Ramos, 536 F.3d 542, 559 (6th Cir. 2008).

                                                 16
                                                                        United States v. Darwich
                                                                              Case No. 13-1723

the breach must be material and substantial. Id. (citation omitted). “Although an inadvertent

omission or oversight would not rise to the level of a materially false statement so as to

constitute a breach of the agreement, a bad faith, intentional, substantial omission . . . does

constitute a materially false statement and thereby a breach of an agreement.” Id. (citation

omitted).

       On May 13, 2009, Darwich signed a document granting him some level of immunity

from prosecution. On May 22, 2009, FBI agents interviewed Darwich. Thereafter, Darwich was

charged with one count of conspiracy to commit arson and two counts of arson.

       Darwich moved to dismiss the indictment, or in the alternative limit the admissibility of

any statement he made to law enforcement at the May 22nd meeting, on the ground that he

believed the Government granted him transactional immunity.          The district court held an

evidentiary hearing to determine: (1) the type of immunity agreement that existed between the

Government and Darwich; and (2) whether Darwich breached that immunity agreement. The

Government argued that the document Darwich signed on May 13th was a Kastigar agreement

granting him use immunity and that Darwich breached that agreement by making materially false

statements and omissions during his May 22nd proffer. Darwich attempted to establish that he

signed a document granting him transactional immunity.         He argued that the Government

conspired with his counsel to either forge his signature on a separate Kastigar agreement or

change the substance of the transactional immunity agreement after he signed it.

       The district court ultimately determined that the agreement Darwich signed on May 13th

was a Kastigar letter granting him use immunity and that Darwich failed to prove the existence


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                                                                         United States v. Darwich
                                                                               Case No. 13-1723

of a transactional immunity agreement. Thus, it denied Darwich’s motion to dismiss.10 The

district court then determined that Darwich substantially and materially breached that Kastigar

agreement by intentionally making false statements and omitting relevant facts during his May

22nd proffer. Following multiple motions by Darwich challenging these determinations, the

district court granted the Government’s motion in limine preventing Darwich from discussing the

alleged transactional immunity agreement at trial.

       Darwich now argues the district court erred in determining that he was not granted

transactional immunity and in finding that he breached whatever immunity agreement he did

have. Repeating the same argument he made before the district court, he first contends the

Government granted him transactional immunity. Because he does not cogently develop an

argument to that effect, however, we decline to disturb the district court’s finding that the only

immunity agreement that existed between Darwich and the Government was that for use

immunity as outlined in the Kastigar letter.

       Darwich next argues the district court erred in finding that he substantially and materially

breached his immunity agreement. It did not. The Kastigar agreement required Darwich to

“make a complete and truthful statement of his knowledge of (and role in) the matters under

investigation, and to fully and truthfully answer all questions.”      It explicitly clarified that

Darwich “may not omit facts about crimes, other participants, or his [ ] involvement in the

offenses, and must volunteer all information that is reasonably related to the subjects discussed

in the debriefing.” In exchange for such disclosure, the Government would not offer any of
10
  Darwich later moved to dismiss the Fourth Superseding Indictment on the same grounds, which
the district court also denied.

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                                                                          United States v. Darwich
                                                                                Case No. 13-1723

Darwich’s statements in its case-in-chief in any criminal prosecution of Darwich for the matters

under investigation. If Darwich failed “to provide truthful and complete information (such as by

making a false statement, providing false information, omitting facts or otherwise misleading the

government),” there would be no restrictions on the Government’s use of any of his statements.

In other words, if Darwich breached the agreement, he would no longer enjoy immunity.

          The district court found that Darwich breached the agreement by: (1) failing to provide

information regarding his alias, Abdullah Derbas; (2) intentionally lying to or misleading agents

regarding their investigation into the marriage of Fatima Toufaili11 and the paternity of her eldest

child; (3) intentionally omitting or downplaying Toufaili’s involvement in the arsons; (4) failing

to provide any information regarding the involvement of “Tony,” “Playboy,” Rabih Ali, Mazen

Mazraani, and possibly others; (5) failing to volunteer details regarding all of the properties

involved in the various arsons; and (6) misrepresenting his business. The district court also

pointed to Darwich’s tape recorded post-proffer admissions to his wife that he had lied to the

Government as evidence that Darwich did in fact breach the agreement by lying to federal

officials.

          Citing Fitch, 964 F.2d at 571, Darwich argues that his lies were just a thinly veiled

attempt to minimize his involvement in the scheme, which he maintains does not constitute a

substantial material breach. Fitch is distinguishable. In Fitch, we found that the defendant did

not substantially and materially breach his immunity agreement where his false implication of

another as the source of a drug deal was nothing more than an effort to minimize his involvement


11
     Fatima Toufaili is Darwich’s wife and co-defendant.

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                                                                         United States v. Darwich
                                                                               Case No. 13-1723

and that the Government was not misled by his untruths. Id. at 574–75. Even assuming

Darwich’s misrepresentations similarly did not constitute a substantial material breach, that does

not render clearly erroneous the district court’s finding that his omissions did. Moreover, we

emphasized in Fitch that the defendant’s fabrication was not sufficient to constitute a substantial

material breach because he supplied the Government with a substantial amount of incriminating

information and assisted the investigation in other ways. Id. In other words, we found that

although defendant’s fabrications were a technical breach of the agreement, they were

insufficient to constitute a substantial material breach because the Government still “received the

benefit of its bargain.” Id. at 575. Darwich does not demonstrate a similar result here and

neither does our review of the record.

       Accordingly, to the extent Darwich challenges the district court’s denial of his motion to

dismiss the indictment based on an alleged immunity agreement, we find that the district court’s

determination that he substantially and materially breached his Kastigar agreement was not

clearly erroneous. See id. at 574 (applying the clearly erroneous standard to review of district

court’s decision as to whether the defendant breached his immunity agreement). To the extent

Darwich challenges the district court’s order granting the Government’s motion in limine

precluding him from discussing the alleged transactional immunity agreement at trial, we cannot

find that the district court abused its discretion in preventing discussion of an immunity

agreement that it found did not exist. See Abboud, 438 F.3d at 579 (reviewing evidentiary

rulings for abuse of discretion). We therefore decline to vacate Darwich’s conviction and

sentence on this ground.


                                                20
                                                                          United States v. Darwich
                                                                                Case No. 13-1723

4. Funds for a Private Investigator

        Lastly, Darwich argues the district court denied him due process and a fair trial by

denying his requests for funds for a private investigator (“PI”) pursuant to 18 U.S.C. § 3006A.

        “We review the district court’s denial of an indigent defendant’s request for authorization

for investigative services under 18 U.S.C. § 3006A for an abuse of discretion.” United States v.

Pacheco, 466 F. App’x 517, 521 (6th Cir. 2012) (citing United States v. Gilmore, 282 F.3d 398,

406 (6th Cir. 2002)).

        18 U.S.C. § 3006A(e)(1) permits district courts to authorize payment for investigative

services for an indigent defendant. Id. District courts may authorize investigative services

“‘upon a demonstration that (1) such services are necessary to mount a plausible defense, and

(2) without such authorization, the defendant’s case would be prejudiced.’” Id. (citing Gilmore,

282 F.3d at 406).

        Throughout the pendency of his case, Darwich made numerous motions requesting funds

for a PI. The district court denied all of those motions for failure to establish necessity. Darwich

does not specify the orders of which he seeks review, but we find that the district court did not

abuse its discretion in denying any of Darwich’s § 3006A(e)(1) motions. First, the district court

did not abuse its discretion in denying Darwich’s early motions for a PI as they consisted of only

general averments that he required a PI to aid in his defense and did not specify what he expected

the PI to find.

        The district court likewise did not abuse its discretion in denying Darwich’s later motions

for a PI. Although his later motions specified the various topics that he intended the PI to


                                                21
                                                                        United States v. Darwich
                                                                              Case No. 13-1723

investigate and the various tasks he required the PI to undertake, a review of those reasons and

tasks confirms that Darwich still failed to establish necessity because he sought “information as

to issues already definitively decided by the court, information which is irrelevant, or, most

prominently, information which could be obtained through Defendant’s stand-by counsel.”

Furthermore, we agree with the district court that Darwich failed to show that his stand-by

counsel was incapable of completing, or at least starting, the tasks for which Darwich sought a

PI.

       Accordingly, although Darwich was indigent, he failed to show through any of his

motions that appointment of a PI, especially in light of his stand-by counsel, was necessary to

mount a plausible defense. The district court thus did not abuse its discretion in denying any of

Darwich’s motions for a PI, and we decline to vacate his judgment of conviction or sentence on

this ground.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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