United States v. Mohammad Tavakkoly, AKA Mohammad Amin

Citations: 238 F.3d 1062; 2001 Daily Journal DAR 1341; 2001 Cal. Daily Op. Serv. 1026; 2001 U.S. App. LEXIS 1518; 2000 WL 33152062Docket: 99-10166

Court: Court of Appeals for the Ninth Circuit; February 5, 2001; Federal Appellate Court

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Mohammad Tavakkoly was convicted of conspiracy to sell heroin and opium while on pretrial release in a separate federal drug case and was sentenced to 126 months in prison, which included additional time for the pretrial release violation. The conviction was based on evidence from a confidential informant, recorded phone calls, and videotaped meetings with undercover agents. During the execution of a search warrant at Tavakkoly's home, agents discovered a significant quantity of opium. He faced three felony counts: conspiracy to possess with intent to distribute heroin, distribution of heroin, and possession with intent to distribute opium, all leading to a jury conviction.

Tavakkoly raised several claims of error, including the prosecutor's alleged vouching for a witness's credibility, the jury instructions not aligning with his requests, insufficient evidence for the opium possession charge, sentence enhancements due to prior convictions, and an additional consecutive sentence for offenses committed while on pretrial release. The court addressed these points, noting that vouching involves the government suggesting a witness's credibility through personal assurances. Since Tavakkoly did not timely object to the vouching, the court stated that it would only constitute reversible error if it significantly impacted the fairness of the trial. The decision relied on a totality of the circumstances rather than a strict rule for when vouching warrants reversal. Ultimately, the court affirmed Tavakkoly's conviction and sentence.

Soheil Nazari, a drug dealer, agreed to cooperate with law enforcement in exchange for leniency, which included compiling evidence for Tavakkoly's arrest. During his testimony, the prosecutor extensively questioned Nazari about his criminal background, including his convictions, drug use, and fugitive status. Nazari confirmed an agreement with the DEA, stating he would tell the truth and not commit crimes while acting as an informant. The prosecutor sought to clarify Nazari's understanding of this agreement but did not emphasize the truthfulness requirement, avoiding any implication that Nazari's testimony was guaranteed to be truthful. Despite Nazari’s unprompted comments about the necessity of truthfulness in his agreement, the prosecutor redirected the conversation, focusing instead on Nazari's criminal history. Previous cases, such as United States v. Lew and Necoechea, established that the absence of direct implications of a witness's truthfulness by the prosecutor does not constitute vouching. The court found that the prosecutor's thorough examination of Nazari set a clear context for his cooperation without implying an assurance of credibility, allowing the testimony to be appropriately admitted.

Tavakkoly contends that the district court erred by not instructing the jury to view Nazari's testimony with caution due to his status as a government informant. Under the Federal Rules of Criminal Procedure, objections to jury instructions must be raised before the jury deliberates; failure to do so generally waives the right to appeal on those grounds. Despite this, courts may review unobjected instructions if they significantly impact the fairness of the proceedings. Tavakkoly's counsel requested a specific cautionary instruction regarding Nazari's testimony, but the district court provided a general warning about Nazari's felony conviction and government benefits, stating that the jury should weigh his testimony cautiously. The court determined this instruction was adequate and that the failure to use the exact requested language did not materially affect the verdict.

Additionally, Tavakkoly challenges the sufficiency of evidence for his conviction for possession with intent to sell opium, arguing that the government failed to present competent evidence of saleable quantities. The standard for reviewing evidence requires examining it in the light most favorable to the prosecution to determine if any rational juror could find the elements of the crime proven beyond a reasonable doubt. Since Tavakkoly did not renew his motion for judgment of acquittal after all evidence was presented, the review for insufficiency of evidence is limited to plain error.

Tavakkoly was found in possession of 1,350.6 grams of opium, with expert testimony indicating that such a quantity is inconsistent with personal use, supporting the jury's finding of intent to distribute. Tavakkoly contended that the district court wrongly considered a prior conviction for sentencing, asserting that the prosecutor's delay in filing an information about the conviction deprived him of the opportunity to challenge it. However, under 21 U.S.C. § 851, he was time-barred from challenging a conviction occurring more than five years prior to the filing. The prosecutor complied with the statute by filing the information before trial, thus the district court's use of the prior conviction to enhance his sentence was affirmed.

Additionally, Tavakkoly challenged a consecutive six-month sentence under 18 U.S.C. § 3147 for committing drug offenses while on pretrial release. The statute mandates an additional consecutive term for such offenses. The district court appropriately applied sentencing guidelines, resulting in a total punishment of 126 months, which fell within the guideline range for his offense. The court affirmed that Tavakkoly received a fair trial, and the enhancements to his sentence were justified based on his prior conviction and actions while on pretrial release. The affirmation of the district court's decisions was confirmed.