United States of America v. Mohammad Taher Al-Suqi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4830
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMMAD TAHER AL-SUQI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:13-cr-00191-JCC-1)
Submitted: July 24, 2014 Decided: August 7, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan D. Bowman, LAW OFFICE OF ALAN D. BOWMAN, Newark, New
Jersey, for Appellant. Dana J. Boente, United States Attorney,
Paul J. Nathanson, Jasmine H. Yoon, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mohammad Taher Al-Suqi was convicted, following a jury
trial, of nineteen counts of aiding in the preparation of a
false income tax return, 26 U.S.C. § 7206(2), two counts of
making and subscribing a false income tax return, 26 U.S.C.
§ 7206(1), and one count of making a false statement to a
federal agent, 18 U.S.C. § 1001. On appeal, he argues that the
district court improperly admitted evidence that he created
false verifications of employment (“VOE”) and evidence from an
undercover Internal Revenue Service (“IRS”) investigation. Al-
Suqi further asserts that the prosecutor’s reference to the VOEs
during closing argument was plainly improper. Finally, he
contends that the district court erroneously relied on evidence
not proved at trial in assessing the tax loss attributable to
him for sentencing purposes. Finding no error in the district
court’s rulings, we affirm.
First, Al-Suqi contends that the VOE evidence was
irrelevant and unnecessary. We review a district court’s
evidentiary rulings for abuse of discretion. See United
States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). A
district court abuses its discretion by acting “arbitrarily or
irrationally” in admitting evidence. Id. (internal quotation
marks omitted).

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“Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). Such evidence may,
however, “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)(2). To be admissible under Rule 404(b), evidence
must be “(1) relevant to an issue other than character; (2)
necessary; and (3) reliable,” and must also satisfy Fed. R.
Evid. 403. United States v. Siegel, 536 F.3d 306, 317, 319 (4th
Cir. 2008) (internal quotation marks omitted). Under Rule 403,
“damage to a defendant’s case is not a basis for excluding
probative evidence” because “[e]vidence that is highly probative
invariably will be prejudicial to the defense.” United
States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).
We conclude that the district court did not abuse its
discretion when it admitted the VOE evidence. Evidence that Al-
Suqi had prepared similar false documents for relatively meager
compensation was highly probative on the issue whether he acted
knowingly and without mistake in preparing the false returns
charged in the indictment, the central issue at trial. Thus,
the VOEs were highly relevant and significantly aided the

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Government in meeting its burden to show that Al-Suqi acted
willfully.
Next, Al-Suqi challenges the district court’s decision
to admit evidence recorded during an IRS undercover operation.
An IRS agent, posing as a taxpayer, entered Al-Suqi’s tax
preparation business seeking to have a tax return prepared
during the time period when Al-Suqi allegedly prepared and
submitted false tax returns. The district court concluded that
the recording and transcript of the meeting were intrinsic to
the charged offenses and admissible under Rule 403.
“Evidence of uncharged conduct is not other crimes
evidence subject to Rule 404 if the uncharged conduct arose out
of the same series of transactions as the charged offense, or
. . . is necessary to complete the story of the crime on trial.”
United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009)
(internal quotation marks omitted). Such intrinsic evidence is
“inextricably intertwined” with evidence of the charged offenses
and forms an integral part of the testimony concerning them.
United States v. Lighty, 616 F.3d 321, 352 (4th Cir. 2010)
(internal quotation marks omitted).
We conclude that the district court did not abuse its
discretion in admitting the challenged evidence, because the
evidence was intrinsic to the charges in the indictment. The
recording showed Al-Suqi preparing the undercover agent’s tax

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return in the same fraudulent manner that he prepared the tax
returns underlying the charges. The meeting occurred during the
same time period that Al-Suqi was preparing the tax returns that
were the subject of the indictment. While Al-Suqi’s case was
damaged by the incriminating recording and transcript, we cannot
say that he was unfairly prejudiced. See Grimmond, 137 F.3d at
833.
Al-Suqi next contends that the prosecutor improperly
stated during closing argument that Al-Suqi deceived banks by
confirming the false information contained in the VOEs. Because
Al-Suqi did not object to this statement at trial, we review for
plain error. United States v. Umana, 750 F.3d 320, 351 (4th
Cir. 2014).
A defendant’s due process rights are violated by a
prosecutor’s closing argument when (1) the prosecutor’s remarks
were improper, and (2) the improper remarks prejudiced the
defendant’s substantial rights to such a degree that he was
denied a fair trial. Lighty, 616 F.3d at 359. We conclude that
Al-Suqi has not demonstrated that the prosecutor’s isolated
remark, which was supported by evidence adduced at trial, was
either improper or unfairly prejudicial.
Finally, Al-Suqi argues that the district court
erroneously calculated the tax loss attributable to him. He
asserts that under Alleyne v. United States, 133 S. Ct. 2151

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(2013), the tax loss amount is an element of the crime that must
be submitted to the jury. We disagree. Alleyne requires that
any fact, other than a prior conviction, that increases the
statutory minimum punishment is an element of the offense that
must be proved beyond a reasonable doubt. 133 S. Ct. at 2155,
2162-63. The Supreme Court cautioned that its holding “does not
mean that any fact that influences judicial discretion must be
found by a jury.” Id. at 2163. The tax loss calculation here
was relevant only to determine Al-Suqi’s advisory Guidelines
range and had no impact on any mandatory minimum sentence. We
therefore reject Al-Suqi’s challenge to the tax loss
calculation.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
Court and argument will not aid the decisional process.
AFFIRMED

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