Filed: May 12, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-12-2009 USA v. Alfurgan Simon Precedential or Non-Precedential: Non-Precedential Docket No. 08-1174 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Alfurgan Simon" (2009). 2009 Decisions. Paper 1377. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1377 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-12-2009 USA v. Alfurgan Simon Precedential or Non-Precedential: Non-Precedential Docket No. 08-1174 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Alfurgan Simon" (2009). 2009 Decisions. Paper 1377. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1377 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-12-2009
USA v. Alfurgan Simon
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1174
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Alfurgan Simon" (2009). 2009 Decisions. Paper 1377.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1377
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-1174
__________
UNITED STATES OF AMERICA
v.
ALFURQUAN SIMON,
Appellant
__________
On Appeal from United States District Court
for the Western District of Pennsylvania
(D.C. No.: 07-cr-00003)
District Judge: Honorable Alan N. Block
__________
Submitted Under Third Circuit LAR 34.1(a)
January 6, 2009
Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge.
(Filed: May 12, 2009)
__________
OPINION OF THE COURT
__________
* The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.
GARBIS, District Judge.
Appellant Alfurquan Simon ("Simon") was convicted by a jury on two counts
charging (1) conspiracy to possess with the intent to distribute one kilogram or more of
heroin, in violation of 21 U.S.C. § 846 and (2) possession with intent to distribute 100
grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i) and 18
U.S.C. § 2. Simon was sentenced to 240 months of imprisonment on each count, to be
served concurrently, for a total of 240 months.1 Simon appeals from his conviction.
For the reasons set forth herein,2 we affirm.
I.
Simon was convicted of participation in a conspiracy to possess heroin with the
intent to distribute and the substantive offense of possession of heroin with the intent to
distribute. Simon contends that the evidence was insufficient to prove his guilt.
A defendant who challenges the sufficiency of the evidence bears a heavy burden.
United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). We have stated, "when
deciding whether a jury verdict rests on legally sufficient evidence . . . [i]t is not for us to
weigh the evidence or to determine the credibility of the witnesses. Rather we must view
the evidence in the light most favorable to the government, and will sustain the verdict if
1
He was also sentenced to 10-year (conspiracy) and 8-year (possession) terms of
supervised release, to be served concurrently for a total of 10 years.
2
Because we write exclusively for the parties, we will recount only those facts essential
to our decision.
2
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1990).
Consequently, we may overturn the jury's verdict only where the record contains no
evidence from which a rational jury could conclude beyond a reasonable doubt that the
defendant committed the crimes charged. United States v. Voight,
89 F.3d 1050, 1080
(3d Cir. 1996).
The essential elements of a drug distribution conspiracy under 21 U.S.C. § 846 are:
"(1) a shared unity of purpose, (2) an intent to achieve a common goal, and (3) an
agreement to work together toward the goal." United States v. Iglesias, 535 F.3d 150,
156 (3d Cir. 2008) (citation and internal quotation marks omitted).
Simon contends that the evidence, even though it may have been adequate to
establish the existence of the charged conspiracy, was not sufficient to prove his
participation beyond a reasonable doubt. He characterizes the case against him as "just .
. . " heaping service of inference upon inference." Appellant Br. at 23.
Of course, the Government cannot prove a conspiracy charge merely by piling
inference upon inference. See United States v. Coleman, 811 F.2d 804, 808 (3d Cir.
1987). However, in the instant case, the evidence was by no means as characterized by
Simon.
3
II.
The Government presented evidence that was plainly adequate to permit the jury
reasonably to find that Simon was a participant in the conspiracy and guilty as charged on
both counts.
The Government presented evidence that in the summer of 2006, two partners in a
Pittsburgh area drug dealing operation, Shakur Muhammad 3 ("Muhammad"), and
Kenneth Johnson ("Johnson") needed a new source of heroin and contacted Simon.4
Simon put them in touch with a person known as "Shawn." 5 Initially, Simon served as an
intermediary, facilitating contact and transactions for which he received compensation.
By the fall, sometime before October 10, 2006, Simon became the sole heroin source for
Johnson and Muhammad, supplying them once or twice a week with two brands of
heroin, "Chevrolet" and "mini men."
Evidence of intercepted telephone calls made by Johnson and Muhammad show
that when Johnson needed more drugs he would have Muhammad telephone Simon
(referred to in these calls as "him" or "the guy") by phone.6
3
Formerly known as Darnell Hill.
4
Simon was the uncle of Muhammad's son.
5
And also known as "S."
6
Simon argues that because he was never identified by name in these telephone calls,
this evidence could not be used against him. We find this unconvincing because he was
referred to explicitly in code words that were well known to the members of the
4
Telephone calls intercepted on October 9 and 10, 2006 establish that Muhammad
told Johnson that he would call his heroin source to report quality problems with the
heroin. Shortly thereafter, Muhammad made four calls to the Newark area – one to a
wrong number and the other three to a number connected to the telephone that, at the time
of Simon's arrest, was found in Simon's bedroom together with Simon's driver's license,
Simon's passport, Simon's work identification and another telephone of Simon's. The
jury could quite reasonably find that the subject telephone was Simon's.7
On November 1, 2006, the DEA intercepted a phone call between Johnson and
Muhammad concerning the need to make a trip to Newark for more heroin. Agents also
identified calls between Muhammad and Simon during this same period.
On November 2nd, Muhammad drove from Pittsburgh to New Jersey with
$84,000 of his and Johnson's money. During this drive, there were several calls between
Muhammad's and Simon's cell phones that, Muhammad testified, were made to keep
Simon apprised of his progress.
Muhammad also testified that he met Simon in Newark about 8:30 p.m.,
exchanged the money for two boxes of diapers containing heroin and by about 9:00 p.m.
was driving back to Pittsburgh. On the way back, the DEA stopped Muhammad's car,
conspiracy.
7
Simon contends that the Government did not prove the telephone was his; however, the
jury could quite reasonably have found that the telephone in question was Simon's.
5
made a consensual search and found 811.3 grams of cocaine in packages stamped with
the "Chevrolet" logo hidden in the boxes of diapers.
Muhammad's girlfriend testified that when Muhammad was in custody he gave
her the number of Simon's telephone and told her to infirm "Alph" or "Alf" of his arrest.
The jury could, quite reasonably, find that "Alph" or "Alf" referred to Simon whose first
name was Alfurquan. Moreover, when Simon's phone was seized it contained a text
message sent from Muhammad's girlfriend's telephone number stating: "I forgot to tell
you, his bail is a million."
After his arrest, Muhammad decided to cooperate with the DEA by calling his
source of supply, identified by him as Simon. The call to Simon's telephone number was
answered by Muhammad's son. Muhammad asked his son to have Simon return his call.
Simon did so, but hung up after Muhammad asked about cars, a reference to the
"Chevrolet" brand of heroin.
In sum, the Government has presented evidence, including but not limited to the
evidence discussed herein, that was more than adequate to prove beyond a reasonable
doubt that Simon was a member of the charged conspiracy and guilty of the substantive
charge as well. Indeed, the testimony of Muhammad alone,8 direct evidence of Simon's
guilt, could, in and of itself, be sufficient to sustain Simon's conviction. Of course,
Muhammad and Johnson testified pursuant to an agreement whereby they could receive
8
Johnson may not have met Simon.
6
reduced sentences for their cooperation. However, "[t]he mere fact that a witness hopes
to receive a reduced sentence by testifying for the prosecution does not disqualify him. . .
. [T]here is no absolute rule of law preventing convictions on the testimony of
accomplices if juries believe them. We follow the Supreme Court in holding that
uncorroborated accomplice testimony may constitutionally provide the exclusive basis for
a criminal conviction." United States v. Cartwright, 359 F.3d 281, 287 (3d Cir. 2004)
(internal citations omitted). Moreover, the Government-cooperator evidence was by no
means uncorroborated.
Our task on appeal is not to again weigh the evidence or reevaluate Johnson's and
Muhammad's credibility. United States v. Carr, 25 F.3d 1194, 1201 (3d Cir. 1994).
Rather, it is to decide whether, viewing the evidence in "the light most favorable to the
government, . . . any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt."
Dent, 149 F.3d at 187. It is our decision that, on the
evidence at trial, a rational jury could have found the elements of the charged offenses
proven beyond a reasonable doubt.
For the foregoing reasons, we affirm the judgment of the District Court.
7
