17‐1717‐cr United States v. Altareb

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of December, two thousand eighteen.

PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐1717‐cr

ABDULKARIM ALTAREB, Defendant‐Appellant.

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FOR APPELLEE: Amy Busa, Assistant United States Attorney (Matthew J. Jacobs, Lindsay K. Gerdes, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: John C. Meringolo, Meringolo & Associates, P.C., Brooklyn, New York.

Appeal from the United States District Court for the Eastern District of

New York (Mauskopf, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Abdulkarim Altareb was convicted after a five‐day

jury trial of operating an unlicensed money transmitting business, bulk cash smuggling,

failing to file a report on the transporting of monetary instruments, making a false

statement, and using a false writing or document. On May 10, 2017, the district court

sentenced Altareb to 51 monthsʹ imprisonment and ordered him to forfeit $776,814.

Altareb filed a timely notice of appeal on May 30, 2017. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

On March 1, 2015, Altareb arrived at John F. Kennedy Airport (ʺJFK

Airportʺ) in Queens, New York to travel to Yemen. During a currency enforcement

examination, Altareb told officers he was transporting only $6,500. Officers arrested

him, however, after finding $6,012 of declared currency on his person and $770,802 of

undeclared currency in his checked luggage. Altareb was initially charged on March 2,

2015, and on March 2, 2016, the Government filed a superseding five‐count indictment.

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During jury selection before a magistrate judge (Pohorelsky, M.J.), Altareb

challenged the Governmentʹs peremptory strike of Juror 19, contending that Juror 19

was the only individual of Arab heritage in the jury pool. The Government proffered

three reasons for its strike: (1) Juror 19ʹs husband was a taxi driver and Altareb used to

be a taxi driver, (2) Juror 19 was unemployed and her employment history was unclear,

and (3) Juror 19 received her news from Al Jazeera and the British Broadcasting

Corporation. The magistrate judge rejected Altarebʹs challenge because he found these

reasons were legitimate, non‐discriminatory reasons and not a pretext for

discrimination based on ethnic background. On appeal, the district judge also found

ʺno evidenceʺ of pretext and held that the peremptory challenge did not violate Batson

v. Kentucky,

(1986). J. App. at 206.

At trial, Hassan Saleh testified that Altareb operated a Hawala, an

unlicensed money transmitting business that does not use banks. Saleh also testified

that Altareb transferred money to Yemen for him on four occasions, from 2011 through

2015, and that he paid Altareb a fee on three of the four occasions. In addition, Adel

Kassim, a cooperating witness, testified that he twice used Altareb to transfer money to

Yemen in 2013, both times paying him a fee. Moreover, at the Governmentʹs direction,

Kassim contacted Altareb multiple times in December 2014 and January 2015 about the

possibility of a third transfer.

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After Altareb was convicted on all counts, the Government sought

forfeiture of $776,814 ‐‐ the full amount seized from Altareb. During the forfeiture

hearing, the district court recognized that there were legal issues presented by the

forfeiture, including whether, in light of United States v. Bajakajian,

(1998),

the forfeiture would constitute an excessive fine, but it held that these issues were better

left for sentencing. At sentencing, however, the district court did not address the

forfeitureʹs excessiveness and Altareb did not object. The district court ordered Altareb

to forfeit $776,814. This appeal followed.

DISCUSSION

Four issues are presented: (1) the Batson challenge to Juror 19; (2) the

sufficiency of the evidence as to Count One, which charged the operation of an

unlicensed money transmitting business in violation of

; (3) venue as to

Count One; and (4) the amount of the forfeiture order.

1. Batson Challenge to Juror 19

Altareb argues that his conviction must be vacated and the case remanded

for a new trial because neither the magistrate judge nor the district judge expressly

found the Governmentʹs race‐neutral reasons to be credible. Alternatively, he argues

that the district court erred in rejecting his Batson challenge on the merits. We review a

trial courtʹs conclusion that a defendant failed to carry his burden of proving

discriminatory intent in a Batson challenge for clear error, giving ʺgreat deferenceʺ to the

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trial courtʹs ruling. United States v. Lee,

(2d Cir. 2008) (internal quotation

marks omitted).

In Batson v. Kentucky,

(1986), the Supreme Court established a

three‐step burden‐shifting framework to determine whether a peremptory challenge is

race‐based. Carmichael v. Chappius,

(2d Cir. 2017). After a defendant

has put forth a prima facie case of a race‐based strike and the Government has provided

a neutral explanation, the court must determine whether the defendant has established

purposeful discrimination.

While there must be an ʺexplicit adjudication of the

credibility of the non‐movantʹs race‐neutral explanations,ʺ Barnes v. Anderson,

(2d Cir. 1999), ʺno clearly established federal law require[s]ʺ the district court

ʺto provide express reasons for each credibility determination,ʺ McKinney v. Artuz,

(2d Cir. 2003). So long as the parties are given a ʺreasonable opportunity to

make their respective records,ʺ a judge ʺmay express his Batson ruling . . . in the form of

a clear rejection or acceptance of a Batson challenge.ʺ Messiah v. Duncan,

(2d Cir. 2006).

We are troubled here by the Governmentʹs use of a peremptory challenge

to strike Juror 19, who was apparently the only member of the jury pool of Arab

heritage. One of the reasons given by the Government for striking Juror 19 was that

ʺshe receives her news from Al Jazeera and the British Broadcasting Corporation.ʺ J.

App. at 176. While some news channels certainly do reflect a ʺpolitical bentʺ that can

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fairly provide a basis for exercising a peremptory challenge, J. App. at 176; see, e.g., Lee,

(finding jurorʹs news source a sufficient basis), disqualifying a juror for

watching a news channel that targets viewers of Arab descent and viewers with an

interest in the Middle East is hardly race‐neutral. Indeed, it comes dangerously close to

purposeful discrimination. Nevertheless, we are not persuaded that there was

reversible error here.

First, we reject Altarebʹs contention that there was procedural error. Both

the magistrate judge and the district judge allowed the parties to make a record. The

magistrate judge stated he was ʺsatisfiedʺ with the Governmentʹs proffered reasons,

concluding that they were ʺnot a pretext for discrimination.ʺ J. App. at 177‐78.

Similarly, the district judge found the Governmentʹs reasons to be ʺneutral,ʺ found ʺno

evidence . . . that the reasons . . . are pretext,ʺ and concluded that ʺthis peremptory

challenge does not violate the tenets of Batson.ʺ J. App. at 206. Hence, Altarebʹs

contention that the district court failed to make the necessary findings at step three of

Batson is without merit.

Second, giving the district court great deference, we find that the district

court did not commit clear error in denying the Batson challenge. The Government also

struck Juror 19 because (1) she might be sympathetic to Altareb, a former taxi driver,

because her husband was a taxi driver, and (2) she was unemployed and her

employment history was unclear. Although these excuses are thin, we are obligated to

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afford wide discretion to the presiding judge. This Court has previously allowed strikes

on the ground that a potential juror may be sympathetic to a defendant. See, e.g.,

Messiah,

(finding jurorʹs potential sympathy for defendant to be a

sufficient basis). Moreover, the Government struck two of the other jurors who were

unemployed, Jurors 11 and 23. These strikes undercut Altarebʹs argument that the

stated reasons were pretextual. Accordingly, while we might have reached a different

conclusion if we were deciding this question de novo or if the only reason given by the

Government was that Al Jazeera was the source of the jurorʹs news, we affirm the

courtʹs rejection of Altarebʹs Batson challenge.

2. Sufficiency of the Evidence for Count One

Altareb argues there was insufficient evidence that he violated

. ʺWe review challenges to the sufficiency of evidence de novo.ʺ United States v.

Pierce,

(2d Cir. 2015). The defendant ʺbears a heavy burden because a

reviewing court must consider the evidence in the light most favorable to the

prosecution and uphold the conviction if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.ʺ United States v. Mazza‐

Alaluf,

(2d Cir. 2010) (internal quotation marks omitted).

An individual violates § 1960 if he ʺknowingly conducts, controls,

manages, supervises, directs, or owns all or part of an unlicensed money transmitting

business.ʺ

(a). Section 1960 requires the operation to be a business such

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that a person ʺcannot be prosecuted for a single, isolated transmission of money.ʺ

United States v. Velastegui,

, 595 n.4 (2d Cir. 1999).

The Government put forth sufficient evidence that Altareb operated a

money transmitting business.1 For example, trial testimony showed that Altareb

transferred money to Yemen four times for Saleh and twice for Kassim. Moreover, in

March 2015, Altareb was arrested in possession of $776,814 at an airport while trying to

fly to Yemen, and he used a fee schedule to encourage larger transfers. Altareb even

acknowledges that, ʺ[a]t most, the evidence showed a few disparate, isolated instances.ʺ

Appellantʹs Br. at 29 (emphasis added). Viewing the evidence in the light most

favorable to the Government, a rational trier of fact could have found sufficient

evidence to support Altarebʹs conviction on Count One.

3. Venue for Count One

Altareb argues that the district court lacked venue for Count One because

the crime did not take place in the Eastern District of New York. ʺA defendant in a

criminal case has the right to be tried in the district where the crime was ʹcommitted.ʹʺ

United States v. Lange,

(2d Cir. 2016) (quoting U.S. Const. amend VI).

Venue may lie in more than one location and is ʺproper in any district in which an

offense was begun, continued or completed.ʺ

(internal quotation marks

omitted). The Government must establish venue by a preponderance of the evidence,

1 The parties stipulated that Altareb did not have a license to transmit money.

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and we review the evidence in the light most favorable to the Government. United

States v. Tzolov,

(2d Cir. 2011).

Where a defendant fails to object with ʺsufficient clarity to apprise the

district court of his position,ʺ we review the district courtʹs judgment for plain error.

United States v. Joseph,

(2d Cir. 2008), abrogated on other grounds by United

States v. Ferguson,

, 276 n.14 (2d Cir. 2011). To establish plain error, the

defendant must show ʺ(1) [an] error (2) that is plain and (3) affects substantial rights.ʺ

United States v. Villafuerte,

(2d Cir. 2007). If these requirements are

met, we may correct the error only if it ʺseriously affected the fairness, integrity, or

public reputation of the judicial proceedingsʺ and constitutes a ʺmiscarriage of justice.ʺ

(internal quotation marks omitted).

Here, Altareb failed to preserve his venue objection because he did not

raise it below. Joseph,

; see United States v. Vasquez,

(2d Cir.

2001) (holding defendant failed to preserve objection where defendant objected to

charges below but urged different grounds on appeal). After the Governmentʹs case,

Altareb argued that the Government ʺfailed to prove each and every element as a

matter of law beyond a reasonable doubt as to all five counts.ʺ J. App. at 770. Altareb

did not, however, articulate a venue objection or a basis for a venue objection.

Therefore, we review the district courtʹs decision for plain error.

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The district court did not, in any event, commit error, much less plain

error, for venue in the Eastern District of New York was proper. Altareb was arrested

in JFK Airport, while attempting to transport $776,814 to Yemen. Evidence at trial

established that Hawalas, like the one Altareb operated, required a settling of accounts

through bulk cash smuggling around once or twice a year. Altareb, therefore, was

arrested in the Eastern District of New York while continuing his money transmitting

business by traveling to Yemen to settle his accounts. The venue challenge fails.

4. Constitutionality of Forfeiture

Altareb argues that the forfeiture of $776,814 was excessive under the

Eighth Amendment. Where a defendant fails to bring a constitutional challenge to

forfeiture below, as is the case here, we review the district courtʹs decision for plain

error. United States v. Elfgeeh,

, 138 (2d Cir. 2008).

In United States v. Bajakajian, the Supreme Court established a two‐step

inquiry to determine whether a forfeiture was excessive under the Eighth Amendment.

(1998); accord United States v. Viloski,

(2d Cir. 2016). At

step one, we must determine whether the Excessive Fines Clause applies to the

forfeiture at issue. Viloski,

. The Excessive Fines Clause applies only

where the forfeiture may be characterized, at least in part, as punitive.

At step two,

we determine whether the challenged forfeiture is unconstitutionally excessive.

A

forfeiture is unconstitutionally excessive ʺif it is grossly disproportional to the gravity of

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a defendantʹs offense.ʺ Bajakajian,

. There is no test for gross

disproportionality, but ʺwe have interpreted [Bajakajian] as requiring us to consider the

following four factorsʺ:

(1) the essence of the crime of the defendant and its relation to other criminal activity, (2) whether the defendant fits into the class of persons for whom the statute was principally designed, (3) the maximum sentence and fine that could have been imposed, and (4) the nature of the harm caused by the defendantʹs conduct.

Viloski,

(internal quotation marks omitted).

Altareb did not preserve this objection because he did not raise it at

sentencing. Moreover, Altareb has not shown that, even assuming there was plain

error, the error ʺseriously affected the fairness, integrity, or public reputation of the

judicial proceedingsʺ and that it resulted in a ʺmiscarriage of justice.ʺ Villafuerte,

. Indeed, he was arrested with $776,814 in his possession as he was trying to

smuggle the funds out of the country, in connection with his unlicensed money

transmitting business. Section 982(a)(1), the forfeiture provision applicable to the crime

of operating an unlicensed money transmitting business, authorizes forfeiture of

property ʺinvolved inʺ the offense or ʺtraceable to such property.ʺ

(a)(1);

see also

(b)(2) (providing court ʺshall orderʺ forfeiture of property

ʺinvolvedʺ in bulk cash smuggling and property traceable thereto). The money here

was being used to operate an unlicensed money transmitting business and in a bulk

cash smuggling operation.

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Accordingly, there was no plain error in the district courtʹs forfeiture

order.

* * *

We have considered Altarebʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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