                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1995




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"USA v. Zahir" (2007). 2007 Decisions. Paper 384.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/384


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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1995
                                     ____________

                            UNITED STATES OF AMERICA

                                          vs.

                            TABARI MALIK ZAHIR,
                                                        Appellant

                                     ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Crim. No. 03-cr-00800)
                  District Judge: Honorable Michael M. Baylson

                                     ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 18, 2007
                Before: SLOVITER, SMITH and WEIS, Circuit Judges.

                               (Filed September 25, 2007)
                                    _______________

                                        OPINION


WEIS, Circuit Judge.

              Defendant was convicted by a jury of one count of possession with intent to

distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), one

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count of attempting to possess with the intent to distribute more than five kilograms of

cocaine in violation of 21 U.S.C. § 846, and five counts of unlawful use of

communications facilities in furtherance of a drug crime in violation of 21 U.S.C. §

843(b).

              The District Court imposed concurrent sentences of 210 months

imprisonment on the two cocaine counts and 48 months incarceration on the five

remaining counts.

              Defendant was represented by counsel at his trial and at sentencing, but

pursues this appeal pro se. He raises three contentions: 1) his counsel was ineffective for

failing to file a motion to dismiss the indictment and criminal complaint based on bad

faith of the prosecution and violations of the Speedy Trial Act; 2) the District Court erred

in failing to grant the defendant’s Rule 29 motion because of insufficiency of the

evidence; and 3) the Court erred in admitting evidence of the defendant’s prior contacts

with a UPS store and his use of the alias Michael Marquez.

              The evidence indicates that defendant, using the alias Michael Marquez,

packed cocaine into cartons of computers and parts in Oakland, California. He then

shipped the material via UPS to “The UPS Store, 3741 Walnut Av., [sic] Philadelphia, PA

19104 Attn: M. Markez.”

              Defendant then flew to Philadelphia to retrieve the packages. UPS officials

became suspicious of the packages and alerted members of the Postal Inspection Service,



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who arranged a controlled delivery. Defendant was arrested after he picked up the

parcels on November 7, 2003. A magistrate judge ordered him detained pending trial.

               Despite the existence of a December 3, 2003, indictment, a magistrate

judge dismissed the criminal complaint on March 10, 2004, and defendant was released.

A bench warrant was issued in April 2004 after a magistrate judge granted the

government’s motion to vacate the dismissal. Defendant was apprehended on November

14, 2004. Trial was continued on several occasions at the request of defendant and at the

instance of the District Court. On June 22, 2005, a superseding indictment was filed and

trial began on July 6, 2005.

              Defendant contends that the various delays were violations of the Speedy

Trial Act and that his attorney was ineffective for failing to bring the matter to the

attention of the court.

              We have a longstanding policy of declining to review claims of ineffective

assistance of counsel on direct appeal, except in unusual cases where the record

establishes the necessary background. See United States v. McLaughlin, 386 F.3d 547,

555-56 (3d Cir. 2004). In the case before us, the District Court has not reviewed the

allegations, including the Speedy Trial Act contentions, and defense counsel has not had

the opportunity to explain his position. Therefore, we will decline to review the

ineffective assistance of counsel claim without prejudice. Defendant may still take




                                              3
advantage of the opportunity to pursue his claim in a collateral attack under 28 U.S.C. §

2255.

              Our review of the record also persuades us that there was adequate evidence

to sustain the guilty verdict. A reasonable jury could conclude that defendant knew that

he was shipping cocaine for purposes of distribution. His extensive use of an alias, his

airplane flight from Oakland to Philadelphia the day after the packages were mailed, the

presence of his fingerprints inside the packages, his actions after picking up the packages,

his previous use of the UPS store as a pickup point, and his attempts to recruit a UPS

employee to fly to California to pick up the packages all point toward his knowing

participation in drug activity.

              We find the claim of insufficient evidence to lack merit. Nor do we find

any substance to the defendant’s claims of error in the admission of evidence at trial. The

challenged evidence served as proof of the defendant’s conduct in furtherance of the drug

crimes. See United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999).

              Accordingly, the judgment of conviction will be affirmed. The claim of

ineffectiveness of counsel will be denied without prejudice.




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