23-7609-cr United States v. Balouchzehi

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 COURT’S 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 “SUMMARY ORDER“). 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 28th day of October, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 23-7609-cr

MALEK MOHAMMAD BALOUCHZEHI, AKA MALEK KHAN, AKA SEALED DEFENDANT 1,

Defendant-Appellant. ------------------------------------------------------------------ FOR APPELLEE: KAYLAN E. LASKY, Assistant United States Attorney (Elinor Tarlow, James Ligtenberg, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY

FOR DEFENDANT-APPELLANT: COHL K. LOVE (Marc Greenwald, Courtney C. Whang, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY

Appeal from a judgment of the United States District Court for the

Southern District of New York (Jesse M. Furman, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Malek Mohammad Balouchzehi appeals from a

judgment of conviction entered on October 25, 2023, in the United States District

Court for the Southern District of New York (Furman, J.), after a jury trial at

which he was found guilty of one count of conspiracy to import one kilogram or

more of heroin into the United States, in violation of

, 959, 960,

and 963, and one count of distribution of one kilogram or more of heroin for

importation into the United States, in violation of

, 959, 960, and 2 963. The District Court sentenced Balouchzehi principally to 240 months’

imprisonment to be followed by five years of supervised release. On appeal,

Balouchzehi raises several challenges to his conviction and sentence, which we

address in turn. We assume the parties’ familiarity with the underlying facts

and the record of prior proceedings, to which we refer only as necessary to

explain our decision to affirm.

I. Confrontation Clause Challenge

Balouchzehi raises a Confrontation Clause challenge to the District Court’s

decision to admit a digital report of the contents of Balouchzehi’s cellphone

without the testimony of the analyst who extracted the phone’s contents and

generated the report. Balouchzehi argues that he had the constitutional right to

cross-examine the analyst who performed the extraction. The parties dispute

whether the Confrontation Clause challenge was properly preserved. But even

assuming that the challenge was preserved, we need not resolve whether the

cellphone extraction report was the “functional equivalent” of live, in-court

testimony, Melendez-Diaz v. Massachusetts,

(2009) (quotation

marks omitted), or otherwise testimonial, see Smith v. Arizona,

(2024),

such that its admission violated the Confrontation Clause. We conclude instead

3 that any alleged error was harmless. As the District Court observed, the

evidence of Balouchzehi’s guilt was “overwhelming,” App’x 1118, including as it

did the testimony of an undercover special agent and confidential source whose

personal communications with Balouchzehi over the span of two years

culminated in negotiating the terms of importing literally ton-quantities of

heroin into the United States, surreptitious video and audio recordings made by

those witnesses corroborating their accounts of Balouchzehi’s statements, and the

actual delivery by courier (who reported having worked for Balouchzehi for a

long time) of a two-kilogram “sample” of heroin promised by Balouchzehi, after

Balouchzehi first arranged for one attempted transfer of the sample (at which the

courier balked because he did not want to deal with a foreigner) and then for a

second, successful attempt after advising the agent and informant that the

courier preferred to deal with a local intermediary.

II. Authentication Challenge

Balouchzehi also contends that, in the absence of testimony from the

analyst who performed the cellphone extraction, the Government failed to

properly authenticate the report and accompanying exhibits under Federal Rule

of Evidence 901. We review the District Court’s admission of the report on the

4 ground that it was authentic for abuse of discretion. United States v. Vayner,

(2d Cir. 2014).

“Rule 901 does not erect a particularly high hurdle” to the admission of

evidence. United States v. Dhinsa,

(2d Cir. 2001) (quotation

marks omitted). An item is properly authenticated under Rule 901 if its

proponent produces “evidence sufficient to support a finding that the item is

what the proponent claims it is,” such as the “appearance, contents, substance,

internal patterns, or other distinctive characteristics of the item, taken together

with all the circumstances.” Fed. R. Evid. 901(a), (b)(4). “Rule 901’s

requirements are satisfied if sufficient proof has been introduced so that a

reasonable juror could find in favor of authenticity or identification.” United

States v. Tin Yat Chin,

(2d Cir. 2004) (quotation marks omitted).

The Government laid a sufficient foundation to authenticate the report.

First, Habibullah Khan, a special agent of the Drug Enforcement Administration

(“DEA”), and Abdullah Qandari, a confidential source, both testified that they

observed Balouchzehi using a Samsung phone during their meetings with him,

and Qandari testified that the Samsung phone was still in Balouchzehi’s

possession when he was arrested. Khan testified that he received Balouchzehi’s

5 Samsung phone from the arresting officers and provided it to Enrique Santos, an

investigative analyst for the United States Attorney’s Office. Next, Santos

testified that he sent the phone to the DEA for data extraction. He further

testified that the data in the report he received from the DEA did not appear to

be altered or manipulated in any way and that the make and model of

Balouchzehi’s Samsung phone matched the make and model listed in the report.

In addition, the videos of narcotics that Khan testified that Balouchzehi showed

him on Balouchzehi’s phone were the same videos contained in the report.

Finally, the report also contained photographs that, Khan testified, showed

Balouchzehi, as well as photographs that depicted Balouchzehi’s family fishing

business, which Balouchzehi had explained to Khan and Qandari was used as a

cover for the export of illegal narcotics.

This evidence was sufficient to show that the phone belonged to

Balouchzehi and that the extraction report and accompanying exhibits were

derived from the contents of Balouchzehi’s phone. Balouchzehi’s arguments

regarding breaks in the chain of custody “do not bear upon the admissibility of

evidence, only the weight of the evidence, and therefore do not provide us any

basis for reversal.” United States v. Morrison,

(2d Cir. 1998).

6 III. Lay Witness Testimony

Balouchzehi next contends that the District Court erred by allowing lay

witnesses to testify as experts, in violation of Rule 701 of the Federal Rules of

Evidence. We review the decision to admit lay opinion testimony for abuse of

discretion. United States v. Tsekhanovich,

(2d Cir. 2007).

Balouchzehi argues that the District Court improperly admitted Khan and

Qandari’s testimony because the testimony lacked an objective factual basis, did

not help the jury understand the evidence, and was based on specialized

knowledge. We are not persuaded. To start, Khan and Qandari offered

testimony on their own multi-year undercover communications with

Balouchzehi, including interpreting coded narcotics terminology used by

Balouchzehi in recorded discussions and chats with them. Khan and Qandari’s

interpretations were based on their first-hand knowledge acquired through their

extensive personal interactions with Balouchzehi. See United States v. Rea,

(2d Cir. 1992). Next, Khan and Qandari “provide[d] insight into

coded language through [their] testimony.” United States v. Yannotti,

(2d Cir. 2008). Finally, the testimony was not the product of specialized

knowledge because it was based on the witnesses’ personal participation in the

7 investigation of Balouchzehi. United States v. Rigas,

(2d Cir.

2007). This was not a case in which the government witnesses were relying on

their expertise and training to interpret coded conversations between alleged

narcotics dealers whom they had never met. Cf. United States v. Garcia,

, 216–17 (2d Cir. 2005).

Accordingly, we see no abuse of discretion.

IV. Leadership Enhancement

Finally, Balouchzehi contends that the District Court erred in applying a

leadership enhancement at sentencing under Section 3B1.1 of the United States

Sentencing Guidelines. Reviewing the District Court’s factual findings for clear

error and its conclusion that those findings support the sentencing enhancement

de novo, United States v. Si Lu Tian,

(2d Cir. 2003), we affirm the

sentence as imposed.

Section 3B1.1 provides for a sentencing enhancement for a defendant who

is “an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Balouchzehi

argues that the District Court failed to make the requisite factual findings to

justify the enhancement and that the facts do not support the conclusion that he

8 was an organizer or leader of a criminal activity. We disagree. The District

Court satisfied its obligation to make specific findings by explicitly adopting the

presentence report. See United States v. Molina,

, 275–76 (2d Cir.

2004). The report details Balouchzehi’s decision-making authority and

management of several workers in an international drug trafficking operation.

Based on these factual findings, the District Court correctly determined that

Balouchzehi “exercise[d] some degree of control over others involved in the

commission of the offense . . . or play[ed] a significant role in the decision to

recruit or to supervise lower-level participants.” United States v. Payne,

(2d Cir. 1995) (quotation marks omitted).

CONCLUSION

We have considered Balouchzehi’s remaining arguments and conclude

that they are without merit. For the foregoing reasons, the judgment of the

District Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9