United States v. Arsalan Nosrati, 51 F.3d 269, 4th Cir. (1995)
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Scribd Government DocsUnited States v. Arsalan Nosrati, 51 F.3d 269, 4th Cir. (1995)
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Scribd Government Docs51 F.
3d 269
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Arsalan NOSRATI, Defendant-Appellant.
No. 94-5336.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 2, 1995.
Decided April 10, 1995.
ARGUED: Gregg Lewis Bernstein, MARTIN, JUNGHANS, SYNDER &
BERNSTEIN, P.A., Baltimore, MD, for Appellant. Robert Reeves
Harding, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Baltimore, MD, for Appellee.
Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit Judge, and
YOUNG, Senior United States District Judge for the District of Maryland,
sitting by designation.
OPINION
PER CURIAM:
Arsalan Nosrati was convicted of conspiracy to distribute cocaine, distribution
of cocaine, and unlawful transfer of firearms knowing that such firearms would
be used in drug trafficking. Nosrati alleges that the district court erred by failing
to sever the drug counts from the firearms count, by failing to give the
requested entrapment instruction, by improperly calculating the quantity of
cocaine attributable to Nosrati, and by enhancing Nosrati's sentence due to his
use of a firearm in a narcotics scheme. Finding no error, we affirm.
I.
2
Undercover detective Larry Best visited several car dealerships in 1991
pursuant to an FBI investigation of money laundering operations. In June 1991,
Best met Nosrati and informed him that he was a cocaine dealer looking to buy
a car. At subsequent meetings, Nosrati suggested to Best that he could help him
with establishing more lucrative drug connections.
On October 10, 1991, Nosrati proposed that they jointly operate a narcotics
operation. Best asked Nosrati whether his drug distributors had their own guns,
and Nosrati responded that he could get whatever guns Best required, including
AK-47s and Uzis. On December 6, 1991, Best and Nosrati met again and
finalized the sale of four guns.
Best broke contact with Nosrati in 1992 while the DEA ran an undercover
cocaine investigation. The investigation eventually led to Nosrati as the
supplier of cocaine purchased by undercover agents. At trial, Nosrati was
convicted of cocaine distribution in violation of 28 U.S.C. Sec. 841, conspiracy
to distribute cocaine in violation of 28 U.S.C. Sec. 846, and of the sale of a
firearm knowing that such firearm would be used in drug trafficking in violation
of 18 U.S.C. Sec. 924.
II.
5
Nosrati contends that the district court erred by joining the offenses of cocaine
distribution and conspiracy to distribute with the offense of the sale of a firearm
knowing that such firearm would be used in drug trafficking. Nosrati argues
both that the prerequisites to joinder of offenses under Federal Rule of Criminal
Procedure 8(a) were not met and that, even if joinder was proper under rule
8(a), severance should have been ordered under Rule 14. A district court's
determination that a defendant is not entitled to a severance of charges is
subject to review for abuse of discretion. United States v. Roberts, 881 F.2d 95,
102 (4th Cir.1989).
Rule 8(a) permits joinder of offenses if the offenses charged "are of the same or
similar character or are based on the same act or transaction or on two or more
acts or transactions connected together or constituting part of a common
scheme or plan." Nosrati claims that the drug and weapons offenses are not of
the same or similar character and that they were too remote in time. The offer to
sell Best firearms, however, was part of Nosrati's scheme to profit from a
narcotics business relationship with Best. It was not error for the district court
to have found that the firearms and narcotics offenses were part of a common
scheme and joinder was proper.
7
Even when joinder is proper under Rule 8, however, a district court may sever
the charges "if it appears that a defendant ... is prejudiced by a joinder of
offenses...." F.R.Crim.P. 14. Nosrati claims that he was prejudiced by the joint
trial because the jury could not "compartmentalize" the evidence, and thus that
the jury might be tempted to convict him on the firearms charge simply
because it was convinced that the narcotics charges were well-founded.
To sustain his burden, Nosrati "must show that a joint trial [was] so prejudicial
as to have resulted in a miscarriage of justice." United States v. Pryba, 900 F.2d
748, 758 (4th Cir.1990). The evidence in the record was compelling on both the
narcotics conspiracy and the firearms offense, and there are no indicia that the
jury used the evidence of one crime to convict Nosrati of the other. Actual
prejudice not having been shown, the district court did not abuse its discretion
in refusing to sever the firearms and narcotics charges.
III.
9
Nosrati argues that he was entrapped by Best and that the district court erred in
refusing to grant the requested entrapment instruction. A district court's refusal
to permit a defendant to argue the defense of entrapment to the jury is subject to
de novo review. See, United States v. Daniel, 3 F.3d 775, 779 (4th Cir.1993).
10
Entrapment is defined as having "two related elements: government
inducement of the crime, and a lack of predisposition on the part of the
defendant to engage in the criminal conduct." Matthews v. United States, 485
U.S. 58, 63 (1988). Entrapment is an affirmative defense, and the initial burden
is on the defendant to come forward with evidence "beyond a mere scintilla
that the Government induced him to commit an offense he was not otherwise
predisposed to commit." United States v. Osborne, 935 F.2d 32, 37 (4th
Cir.1991). If there is sufficient evidence from which a reasonable jury could
find entrapment, then the defendant is entitled to the entrapment instruction. Id.
11
An essential element of the inducement requirement is governmental
overreaching. United States v. Daniel, 3 F.3d at 778. Examples of overreaching,
and therefore inducement, include urging or coercing a reluctant defendant into
committing a crime. Id. at 779. The district court found that there was no
evidence of overreaching and that an entrapment instruction would therefore be
inappropriate.
12
Nosrati argues that it was Best who first brought up the subject of guns and
that, feeling threatened by Best, he agreed to a sale of guns. Nosrati suggests
that he has therefore presented more than a mere scintilla of evidence of
overreaching and that the entrapment instruction should have been given.
13
Although Best first mentioned the subject of firearms in general, it was Nosrati
who first suggested selling firearms for use in drug trafficking. There is no
evidence that Nosrati was in fear of Best, and there is no conduct which could
be considered so coercive as to implant the criminal idea in the mind of an
innocent party. More than a mere scintilla of evidence of governmental
overreaching does not exist, and the district court did not err in declining to
instruct the jury on entrapment.
IV.
14
Nosrati asserts that the district court erred in finding one-half to two kilograms
of cocaine to be attributable to him for the purposes of applying a base level
offense of 26 under U.S.S.G. Sec. 2D1.1. Such a factual determination is
reviewable under the clearly erroneous standard. United States v. Goff, 907
F.2d 1441, 1444 (4th Cir.1990). When there has been no seizure, the sentencing
court may approximate the quantities of drugs involved, U.S.S.G. Sec. 2D1.4,
although the government bears the burden of proving the quantity by a
preponderance of the evidence. United States v. Gilliam, 987 F.2d 1009, 1013
(4th Cir.1993).
15
The district court found that 336 grams of cocaine were seized and another 140
grams were verified by two corroborating witnesses. In order to justify the
sentencing decision, therefore, the district court need have found only 24
additional grams of cocaine to be attributable to Nosrati. Mark Visbal testified
that he bought at least 30 ounces (720 grams) from Nosrati, and, based upon
this testimony, the district court found that at least 500 grams were attributable
to Nosrati. The district court was not clearly erroneous in its application of a
base offense level of 26.
V.
16
Finally, Nosrati contends that it was error for the district court to increase the
base offense level by two points under Sec. 2D1.1(b)(1) of the Sentencing
Guidelines. This section provides that an increase is appropriate if a dangerous
weapon was possessed during a drug offense. The commentary to Sec.
2D1.1(b)(1) explains that the "adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense."
17
The district court found that Nosrati's activities involving guns and drugs were
interrelated. Such a determination for sentencing purposes will not be
overturned unless clearly erroneous. See, United States v. Hayes, 15 F.3d 125,
127 (8th Cir.1994). Nosrati concedes that he possessed the firearms, and the
evidence in the record indicates that Nosrati hoped that the gun sales and
narcotics sales would merge into a larger illegal business relationship with Best.
The district court was not clearly erroneous in finding Sec. 2D1.1(b)(1)
applicable.
18
AFFIRMED.
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