Filed: Oct. 18, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4470 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. AMAR ENDRIS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:15-cr-00044-LMB-1) Argued: September 23, 2016 Decided: October 18, 2016 Before TRAXLER, SHEDD, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Nicholas John Xenakis, O
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4470 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. AMAR ENDRIS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:15-cr-00044-LMB-1) Argued: September 23, 2016 Decided: October 18, 2016 Before TRAXLER, SHEDD, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Nicholas John Xenakis, OF..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4470
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AMAR ENDRIS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:15-cr-00044-LMB-1)
Argued: September 23, 2016 Decided: October 18, 2016
Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Jack Morgan,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender, Kevin R. Brehm, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, John T.
Gibbs, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Amar Endris of one count of possessing a
firearm with an obliterated serial number, in violation of 18
U.S.C. § 922(k). Endris appeals his conviction and sentence. For
the following reasons, we affirm.
I.
In early 2014, the FBI began investigating Amar Endris for
potential criminal offenses. 1 As part of its investigation, the
FBI used a confidential informant, Dylan Smith, 2 to make contact
with him. During the investigation, Endris remarked to Smith
that he wanted to find a firearm that the Government could not
trace; in response, the FBI instructed Smith to offer Endris a
gun from a man named “Paul.” Pursuant to these instructions,
Smith told Endris that he could buy a gun from “Paul” for $300.
Smith also told Endris that the serial number was scratched off
and the gun was thus illegal to possess. Endris responded,
“we’ll talk, don’t, don’t tell me on the phone we’ll talk about
it when, we’ll talk about it.” 3 (J.A. 281). Endris asked if he
1Because the jury found Endris guilty, “we recite the facts
. . . in the light most favorable to the government.” United
States v. McNeal, 818 F.3d 141, 146 n.3 (4th Cir. 2016).
2Dylan Smith is a pseudonym. Smith testified under this
name at trial.
3 All recordings and texts are presented as they were at
trial.
2
and Smith could meet to discuss the purchase. During that
ensuing discussion, Endris told Smith he was willing to buy the
gun but was worried about the price. He later texted Smith to
say that he did not have $300, but to “[t]ell Paul to save it
doe I we’ll get it some other time.” (J.A. 126).
In early October, Endris informed Smith that he was leaving
the country with family to go to Ethiopia. 4 For the next two
months, during which Endris told Smith he was in Ethiopia, there
is no evidence that Endris attempted to legally purchase a
firearm, and Smith made no mention of the gun from “Paul.”
On December 4, Endris sent Smith a Facebook message, asking
him, “Paul steel got the 17?” (J.A. 129). Three days later,
Endris sent another message asking, “Am good u talk to poul?”
(J.A. 130-31). Endris then texted Smith several days later,
telling him he was back in the country and asking if Smith could
“please hit up Paul ASAP” so Endris could get the gun “this week
I needit.” (J.A. 132). On December 15, Smith told Endris that
Paul still had the gun and reminded him that the serial number
was scratched off. Endris replied, “no problem,” and “I want it
tomorrow or, or Wednesday.” (J.A. 306). Endris increased his
4 In fact, Endris remained in northern Virginia during this
time.
3
urgency the next day, saying that he “need dat tmrw” and asked
if Paul had ammunition for the weapon. (J.A. 133).
Smith and Endris met “Paul” on December 17 in a shopping
center parking lot. Endris brought $300 with him and, after some
haggling, purchased a Glock handgun with a scratched off serial
number. After taking possession of the gun Endris was, in
Smith’s opinion, as happy as a “child on Christmas,” (J.A. 137),
using a flashlight to examine it and asking if the gun “got
bodies on it,” (J.A. 83). Endris never asked for a receipt and
left the transaction with the gun.
The FBI promptly arrested Endris, and the Government
charged him with one count of possession of a firearm with an
obliterated serial number, in violation of § 922(k). Before
trial, Endris moved in limine to keep the Government from
introducing certain recordings that occurred prior to Smith
offering Endris the gun from “Paul.” The district court denied
the motion, concluding that, because Endris intended to raise an
entrapment defense, the recordings were necessary to prove
predisposition.
Following a two-day trial, the jury convicted Endris of the
§ 922(k) violation. While awaiting sentencing, Endris was
released to his parents’ care. This arrangement ended when his
parents contacted the Probation Office and said they were
4
worried because they found pictures on Endris’ phone of Endris
posing with guns.
At sentencing, the district court expressed great concern
regarding Endris’ post-conviction activities. Accordingly, after
sentencing Endris to 30 months imprisonment, the court announced
special conditions for his supervised release. Condition 4
provides that “[t]he defendant shall not utilize any computer or
internet services to access information regarding firearms,
soldiers of fortune, or any type of violence.” (J.A. 539).
II.
On appeal, Endris challenges: (1) the admission of three
recordings under Rule 404(b); and (2) Condition 4 of his
supervised release. 5 We address these issues in turn.
A.
Rule 404 generally prohibits evidence of other crimes or
bad acts to prove the defendant’s character and conduct in
accordance with his character. See Fed. R. Evid. 404(b)(1). Such
5Endris also challenges the sufficiency of the evidence
against him, arguing that the Government failed to prove
predisposition. When, as here, entrapment is submitted to the
jury, Endris’ guilty verdict “comprehends a finding of no
entrapment” and we can “overturn this determination only if no
rational trier of fact could have found predisposition beyond a
reasonable doubt, viewing the evidence in the light most
favorable to the prosecution.” United States v. Jones, 976 F.2d
176, 180 (4th Cir. 1992). Applying this standard, we have
reviewed this claim and find it to be without merit because a
rational juror could have found predisposition.
5
evidence, however, may be admissible “for another purpose, such
as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b). “Rule 404(b) is viewed as an inclusive
rule, admitting all evidence of other crimes or acts except that
which tends to prove only criminal disposition.” United States
v. Young, 248 F.3d 260, 271 (4th Cir. 2001) (internal quotation
marks omitted). “To be admissible under Rule 404(b), evidence
must be (1) relevant to an issue other than character; (2)
necessary; and (3) reliable.” United States v. Siegel,
536 F.3d
306, 317 (4th Cir. 2008) (internal quotation marks omitted).
Additionally, evidence should be excluded under Rule 404(b) if
its probative value is substantially outweighed by its unfair
prejudice to the defendant. United States v. Johnson,
617 F.3d
286, 296–97 (4th Cir. 2010). We review the district court’s
admission of evidence under Rule 404(b) for abuse of discretion.
United States v. Queen,
132 F.3d 991, 995 (4th Cir. 1997).
As noted, Endris moved in limine to suppress three audio
recordings of conversations that occurred prior to Smith
mentioning the gun with the obliterated serial number. The
conversations occurred on August 5, August 19, and August 26.
On August 5, Endris told Smith about a recent encounter
with an acquaintance:
6
Endris: Remember that Spanish dude from the first
time? . . . I went up to him, uh. I was, I was
chillin’ with him on, on Sunday, He, and uh, uh, he,
I, I was talking to him. I told you his people are
like the cartel and stuff. So I asked him, um, do you
know anybody with guns and stuff. He’s like yah but he
said for uh new ones it’s gonna be expensive. Clean
ones, but for dirty, dirty ones it will be cheaper.
Smith: Yeah, of course dirty ones will be cheaper.
(J.A. 594).
Next, on August 19, Endris and Smith discussed the
possibility of using a gun to rob Endris’ khat dealer:
Endris: You wanna try and do it?
Smith: I mean if you make up a plan and it’s straight
enough my brother.
Endris: It is. It’s good.
Smith: I might be down.
Endris: Akh, here’s the thing. You got to. I won’t
Smith: You just got to make sure the plan is
Endris: What do you think about ski masks or not? What
if, what if we go there, like, the first thing we do
is have ski masks and go in there? That's hot?
(J.A. 597).
Finally, on August 26, Endris discussed wanting to find
someone to buy a gun for him:
Endris: But what I want to do, I want to find somebody
that’s 21 that I trust and shit that’s cool and I
wanna give them the money and I wanna go to the store
with them and I want them to buy it.
(J.A. 599).
7
The district court denied Endris’ motion, ruling that
because Endris intended to raise an entrapment defense, the
conversations were “necessary” to show that Endris “had a
predisposition to obtain an unlawful weapon.” (J.A. 15).
In United States v. McLaurin, 764 F.3d 372, 380 (4th Cir.
2014), we held that “there is no doubt that proving
predisposition is one of the purposes for which bad-act evidence
may be admissible.” Because predisposition was a “broad
concept,” a “broad swath of evidence, including aspects of the
defendant’s character and criminal past, is relevant to proving”
it.
Id. at 381. Thus, when a defendant raises entrapment,
“‘prior bad acts relevant to a defendant’s predisposition to
commit a crime are highly probative and can overcome the Rule
404(b) bar.’”
Id. (quoting United States v. Van Horn,
277 F.3d
48, 57 (1st Cir. 2002). To be admissible under Rule 404(b) to
prove predisposition, the past conduct need not be identical to
the crime charged. Rather, the conduct need only be “similar
enough and close enough in time to be relevant to the matter at
issue.
Id. at 382 (internal quotation marks omitted).
Applying McLaurin, we find no abuse of discretion. The
conversations were offered for the permissible purpose of
predisposition and were necessary to offset Endris’ entrapment
defense. Moreover, the August 5th and August 26th conversations
relate to Endris’ continuing efforts to obtain a firearm
8
illegally, while the August 19th conversation shows that Endris
had a plausible use for an untraceable firearm. 6
We also find that the probative value of the conversations
is not substantially outweighed by the risk of unfair prejudice.
The evidence is prejudicial to Endris’ entrapment defense, “just
as all evidence suggesting guilt is prejudicial to a defendant,”
United States v. Williams, 445 F.3d 724, 730 (4th Cir. 2006),
but “[t]hat kind of general prejudice . . . is not enough to
warrant exclusion of otherwise relevant, admissible evidence,”
Siegel, 536 F.3d at 319.
B.
Endris also challenges Condition 4 of his supervised
release. We review the imposition of a supervised release
condition for abuse of discretion. United States v. Holman, 532
F.3d 284, 288 (4th Cir. 2008). After Endris’ conviction, he was
remanded into his parents’ custody pending sentencing. During
the time between conviction and sentence, his parents contacted
the Probation Office and asked that they take Endris into
custody because of disturbing images they discovered on his
phone: photographs of him posing with guns. In addition, before
6While these conversations are admissible individually,
their admissibility is underscored when viewed cumulatively. See
Bourjaily v. United States, 483 U.S. 171, 179-80 (1987) (“The
sum of an evidentiary presentation may well be greater than its
constituent parts.”).
9
sentencing, a neuropsychological evaluation concluded that
Endris has Autism Spectrum Disorder. 7
In light of these post-conviction developments and the
district court’s concern that the “combination of severe mental
illness and weapons is deadly,” (J.A. 524), the court noted that
Endris requires a “very strict regime of supervised release” to
“avoid a tragedy down the road,” (J.A. 525). To that end, the
court explained that it was adding a “very strict restriction
on” Endris’ “use of computer and the Internet,” and that Endris
could have “absolutely no communication about guns or any type
of weapon or any kind of soldiers of fortune, any kind of
publication doing with — having to do with violence.” (J.A.
527). 8 The court also prohibited Endris from possessing “any type
of weapon, that includes knives, nunchucks, any kind of weapon
at all.” (J.A. 529). Endris indicated that he understood each of
these conditions. Endris’ attorney objected to the “violence”
condition, and the court responded that it would leave the
7As explained in the evaluation, Autism Spectrum Disorder
“consists of two major components: 1) Persistent deficits in
social communication and social interaction across multiple
context; and 2) Restricted, repetitive patterns of behavior,
interests, or activities.” (J.A. 558).
8The judgment sheet memorialized this condition as stating
that Endris “shall not utilize any computer or internet services
to access information regarding firearms, soldiers of fortune,
or any type of violence.” (J.A. 539).
10
condition because “if there’s a problem . . . if the Probation
Office thinks there’s been a violation, we’ll address it at that
point, but I want it made clear that [Endris] needs to be
extremely conservative as to what sites he decides to go visit
when he’s on the internet.” (J.A. 533).
A district court is empowered to impose special conditions
on supervised release so long as the condition is “reasonably
related” to the 18 U.S.C. § 3553(a) factors and involves “no
greater deprivation of liberty than is reasonably necessary.”
United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009)
(internal quotation marks omitted). The relevant statutory
factors include the following: the nature and circumstances of
the offense, the history and characteristics of the defendant,
and the need to protect the public. 18 U.S.C. § 3583(d)(1). A
district court has “broad latitude” in imposing special
conditions. United States v. Dotson,
324 F.3d 256, 260 (4th Cir.
2003).
Under the particular facts of this case, we believe the
restriction is reasonably related to at least two sentencing
goals: protection of the public and the history and
characteristics of the defendant. Endris argues that the
reference to “violence” is overbroad and may land him in
violation of his supervised release for any number of innocuous
11
activities. However, when read in the context of this case, we
find the “violence” reference permissible.
“Conditions . . . may afford fair warning even if they are
not precise to the point of pedantry. In short, conditions of
[supervised release] can be written—and must be read—in a
commonsense way.” United States v. Paul, 274 F.3d 155, 166-67
(5th Cir. 2001) (internal quotation marks omitted). Here, the
court made clear throughout sentencing its concern with Endris’
fascination with guns and criminal plots and, in its reasoned
view, determined that strict conditions were needed to protect
not only the public but also Endris. The reference to “violence”
is not free-standing; instead, it is tied to Endris’ use of the
internet and aimed at a very specific concern and potential
harm: to prevent him from examining firearms and other weapons
and soldiers of fortune. We therefore find the district court
did not abuse its discretion in imposing Condition 4.
III.
For the foregoing reasons, we affirm Endris’ conviction and
sentence.
AFFIRMED
12
