The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0555n.06
No. 13–1723 FILED
Jul 24, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
ALI DARWICH, )
) OPINION
Defendant-Appellant. )
)
BEFORE: SILER and KETHLEDGE, Circuit Judges; and WATSON, District Judge.*
MICHAEL H. WATSON, District Judge. Defendant-Appellant Ali Darwich
(“Darwich”) was convicted of thirty-three counts of various federal crimes, including seven
counts of Using Fire to Commit Fraud in violation of 18 U.S.C. § 844(h)(1). The district court
sentenced Darwich to 1,647 months of imprisonment, 1,560 of which it imposed as a mandatory
minimum sentence pursuant to 18 U.S.C. § 844(h)(1). Darwich appeals his sentence, through
counsel, arguing that the district court improperly applied 18 U.S.C. § 844(h)(1). Darwich also
filed a pro se brief requesting we vacate his conviction and sentence on other various grounds.
For the following reasons, we AFFIRM the district court’s judgment.
*
The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
United States v. Darwich
Case No. 13-1723
I. BACKGROUND
Darwich was indicted on numerous federal crimes in connection with a fraud scheme to
flood, vandalize, and set fire to several residences and businesses to collect insurance proceeds.
Counts 1–12 charged Darwich with Wire Fraud, Aiding and Abetting, in violation of 18 U.S.C.
§§ 1343, 2; Counts 13–27 charged him with Mail Fraud, Aiding and Abetting, in violation of 18
U.S.C. §§ 1341, 2; Counts 28–34 charged him with Use of Fire to Commit Fraud, in violation of
18 U.S.C. §§ 844(h)(1), 2; and Count 35 charged him with Conspiracy to Launder Monetary
Instruments, in violation of 18 U.S.C. § 1956(h). A jury convicted Darwich of thirty-three of the
thirty-five counts, acquitting him of Counts 19 and 24.
At issue in this appeal is the district court’s sentence as to Counts 28–34, which charge
Darwich with using fire to commit a felony in violation of 18 U.S.C. § 844(h)(1). Section
844(h)(1) states in relevant part:
(h) Whoever—
(1) uses fire or an explosive to commit any felony which may be
prosecuted in a court of the United States . . .
shall, in addition to the punishment provided for such felony, be sentenced
to imprisonment for 10 years. In the case of a second or subsequent
conviction under this subsection, such person shall be sentenced to
imprisonment for 20 years. Notwithstanding any other provision of law . .
. the term of imprisonment imposed under this subsection [shall not] run
concurrently with any other term of imprisonment including that imposed
for the felony in which the explosive was used or carried.
18 U.S.C. § 844(h)(1).
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In Darwich’s pre-sentence investigation report (“PSR”), the probation officer applied
§ 844(h)(1) to require an enhanced sentence of ten years for Darwich’s first § 844(h)(1)
conviction and an additional twenty years for each of the six subsequent § 844(h)(1) convictions,
to run consecutively, resulting in a 130-year mandatory minimum sentence of imprisonment.
Darwich objected to the PSR’s application of 18 U.S.C. § 844(h)(1). He specifically
objected to paragraphs sixty-nine and seventy, which set forth a mandatory ten-year minimum
sentence for his first § 844(h)(1) conviction, to run consecutive to all other counts, and a twenty-
year mandatory minimum sentence for each of his remaining § 844(h)(1) convictions, to run
consecutive to each other and all counts. Darwich did not develop his objection except to say
that he would “file a sentencing memorandum challenging the mandatory consecutive minimum
sentences based on separation of powers, equal protection, due process right to individualized
sentencing, statutory construction and the Sixth and Eighth Amendments to the Constitution.”
Darwich then filed a sentencing memorandum, but he addressed only four of those six
bases. He did not develop objections based on statutory construction or the Sixth Amendment.
Nor did he challenge the probation officer’s conclusion that § 844(h)(1) subjected Darwich to a
mandatory minimum sentence of 130 years. Rather, after outlining the statutory language, he
concluded that “[b]ased on the directive of the statute, it appears that the Court must impose the
following sentences: [listing the sentences as determined by the probation officer].”1 Darwich
then argued that imposing this lengthy, mandated sentence violated the separation of powers
doctrine, the right to an individualized sentence, equal protection, and the Eighth Amendment.
1
Darwich also stated that “[g]iven the mandatory minimum sentences imposed consecutively on
Counts 28 through 34, the minimum sentences imposed on those counts is 130 years.”
3
United States v. Darwich
Case No. 13-1723
Darwich persisted in these four constitutional objections at sentencing. Again, however,
he did not make a statutory construction argument or challenge the probation officer’s
conclusion that § 844(h)(1) subjected him to a 130-year mandatory minimum sentence. Rather,
his counsel stated: “I think that the consensus between the Government, and the defense and the
Probation Department at this point, is that the mandatory minimum before you even address the
underlying felonies is 130 years.”
The district court overruled Darwich’s objections. It sentenced Darwich to eighty-seven
months for the wire fraud, mail fraud, and conspiracy convictions, to run concurrent; ten years
for the first § 844(h)(1) conviction, to run consecutive to all other counts; and twenty years for
each of the other six § 844(h)(1) convictions (130 years total), to run consecutive to each other
and all other counts.2 This resulted in a total of 1,647 months of imprisonment. Darwich filed a
timely notice of appeal.
II. DISCUSSION
A. Counsel’s Claim
Darwich appeals the district court’s sentence, arguing that it erred in interpreting
18 U.S.C. § 844(h)(1) to require consecutive enhanced sentences for multiple § 844(h)(1)
convictions within a single prosecution. He maintains that the mandatory sentences outlined in
§ 844(h)(1) do not apply to separate counts of a single prosecution. Rather, he interprets
§ 844(h)(1) to provide for a single enhanced sentence regardless of the number of § 844(h)(1)
2
The district court also sentenced Darwich to two years of supervised release as to each count, to
run concurrently; ordered $1,204,867.62 in restitution; and ordered the forfeiture of certain
proceeds, none of which Darwich challenges.
4
United States v. Darwich
Case No. 13-1723
convictions within a prosecution. He further argues that § 844(h)(1) permits district courts to
determine whether the sentences for separate § 844(h)(1) convictions within a prosecution should
run concurrently or consecutively to each other.
The Government maintains that 18 U.S.C. § 844(h)(1) permits consecutive sentences for
multiple § 844(h)(1) convictions that are part of a single case. The Government argues we need
not reach the merits of this issue, however, because Darwich waived, or at least forfeited, his
argument as to the statutory interpretation of § 844(h)(1).
“In determining whether we have authority to consider an argument not raised below, we
distinguish between ‘waiver’ and ‘forfeiture.’” United States v. Holland, 522 F. App’x 265, 272
(6th Cir. 2013). “‘Waiver’ is the intentional relinquishment or abandonment of a known right.”
United States v. Hall, 373 F. App’x 588, 591 (6th Cir. 2010); United States v. Aparco-Centeno,
280 F.3d 1084, 1088 (6th Cir. 2002). As such, “a basic failure to bring an issue to the district
court’s attention does not create waiver. Rather, waiver requires some affirmative act that shows
a party has willfully declined to assert a right.” Holland, 522 F. App’x at 272 (citation omitted).
For example, it is well established that “the withdrawal of an objection would constitute a
waiver.” Hall, 373 F. App’x at 592. “But we have never held that a defendant must make an
objection, then withdraw it, before [a] point can be waived.” Id. Indeed, “‘[a]n attorney cannot
agree in open court with a judge’s proposed course of conduct and then charge the court with
error in following that course.’” Aparco-Centeno, 280 F.3d at 1088 (citation omitted); see also,
Hall, 373 F. App’x at 592 (citing Aparco-Centeno); United States v. Smith, 749 F.3d 465, 494
(6th Cir. 2014) (citing Aparco-Centeno); United States v. Turner, 436 F. App’x 582, 586 (6th
5
United States v. Darwich
Case No. 13-1723
Cir. 2011) (citing Hall). Waived claims are not reviewable. Hall, 373 F. App’x at 592; Aparco-
Centeno, 280 F.3d at 1088. In contrast, “[f]orfeiture occurs when a party fails ‘to make the
timely assertion of a right,’” and we review forfeited claims for plain error. United States v.
Rodriguez, 544 F. App’x 630, 633 (6th Cir. 2013).
The record confirms that Darwich waived his claim as to the statutory interpretation of
18 U.S.C. § 844(h)(1). Although he listed “statutory construction” as one of his objections to the
PSR’s application of § 844(h)(1), Darwich did not explain, develop, or even mention that
objection in his sentencing memorandum, let alone raise the statutory interpretation argument he
now advances on appeal. Rather, his sentencing memorandum focused only on his four
constitutional objections. And in making those constitutional objections, Darwich explicitly
stated that “[b]ased on the directive of the statute, it appears the Court must impose” a 130-year
mandatory minimum sentence under § 844(h)(1). This conclusion represents an agreement with
the PSR’s interpretation of § 844(h)(1).
Darwich reiterated his constitutional objections at the sentencing hearing but again did
not challenge the conclusion that the statute required a mandatory minimum sentence of
130 years.3 In fact, he explicitly conceded, through defense counsel, that the application of
§ 844(h)(1) to his case required a mandatory minimum sentence of 130 years. Indeed, in
defending his separation of powers argument at the sentencing hearing, defense counsel stated,
“[b]ut when we get to the fourth superseding indictment and Mr. Darwich, I think that the
3
When asked if he had any additional objections or concerns at the conclusion of the sentencing
hearing, defense counsel responded that he did not and was only preserving his prior objections.
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Case No. 13-1723
consensus between the Government, and the defense and the Probation Department at this point,
is that the mandatory minimum before you even address the underlying felonies is 130 years.”
We have previously found a defendant to have waived a claim under similar facts. In
Hall, the defendant challenged the district court’s application of a sentencing enhancement
pursuant to the Armed Career Criminal Act. 373 F. App’x at 591. Although the defendant’s
counsel had previously reserved the right to dispute the enhancement at sentencing, he instead
argued that the prosecutor should have exercised more prosecutorial discretion. In so arguing,
the defendant’s counsel conceded the applicability of the enhancement and admitted that the
defendant was subject to a mandatory minimum. We found this to constitute waiver of the
defendant’s argument as to the sentencing enhancement. The defendant argued that he could
waive his argument only by objecting to the enhancement and then making an actual, affirmative
withdrawal of that objection. He maintained that his counsel merely failed to renew his
objection when given the opportunity, rendering his claim forfeited rather than waived. Id. We
rejected this argument, finding that by “acknowledg[ing] the accuracy of the court’s
[enhancement] determination and reiterat[ing] the applicability of the statutory 15-year
mandatory minimum at sentencing,” the defendant waived any claim that the enhancement
should not apply. Id.
Similarly, defense counsel’s statements in his sentencing memorandum and at the
sentencing hearing in this case represent a concession in open court that the probation officer and
the district court accurately interpreted § 844(h)(1) to impose a 130-year mandatory minimum
sentence. By agreeing with the probation officer and the district court that § 844(h)(1) subjected
7
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Case No. 13-1723
Darwich to a 130-year mandatory minimum, Darwich agreed to the interpretation of the statute
that resulted in that 130-year sentence. As such, Darwich cannot now argue the court erred in
applying the statute in accordance with that interpretation. See Aparco-Centeno, 280 F.3d at
1088 (finding the defendant waived his argument that his two prior felonies should not qualify as
aggravated felonies for sentencing purposes where his counsel did not object to such a finding in
the PSR and explicitly agreed in his sentencing memorandum with the PSR’s position); see also,
Smith, 749 F.3d at 494–95 (finding the defendant waived his argument that the district court
improperly excluded expert testimony where his counsel “unequivocally agreed” at trial that the
witness was not considered an expert); United States v. Donovan, 539 F. App’x 648, 658 (6th
Cir. 2013) (finding the defendant waived his challenge to the district court’s failure to apply an
offense-level reduction where the defendant agreed at sentencing that the reduction was
inappropriate); Holland, 522 F. App’x at 272 (finding the defendant waived his theory that a
search was conducted without consent where his counsel explicitly disavowed the theory at a
suppression hearing and pursued other arguments as to the invalidity of the search)4; Turner,
436 F. App’x at 586 (finding waiver where defense counsel agreed with the Government’s
position at the sentencing hearing); United States v. King, 430 F. App’x 514, 517 (6th Cir. 2011)
(finding the defendant waived his challenge to the application of a sentencing enhancement
where at sentencing the defendant withdrew his objection to the PSR’s application of the
4
We found that the defendant in Holland “unequivocally asserted a violation of his Fourth
Amendment right,” but “explicitly disavowed the theory that the violation stemmed from entry
into the apartment without consent.” Holland, 522 F. App’x at 272. Similarly, although
Darwich unequivocally challenged the application of the 130-year mandatory minimum sentence
pursuant to § 844(h)(1), he conceded that such a challenge was not based on the PSR’s
conclusion that the statute required such a sentence.
8
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Case No. 13-1723
enhancement and expressly conceded its applicability); United States v. Ward, 506 F.3d 468, 477
(6th Cir. 2007) (finding waiver of argument that provision of sentencing guidelines is
unconstitutionally vague where the defendant made the argument as an objection to the PSR but
at the sentencing hearing and in a subsequent motion represented that all objections had been
resolved except three other enumerated challenges); compare with, Rodriguez, 544 F. App’x at
634 (finding forfeiture where defense counsel withdrew his objection to certain testimony
“without explicitly conceding admissibility”).
In sum, Darwich has waived any argument that the district court improperly interpreted
18 U.S.C. § 844(h)(1) to require a 130-year mandatory minimum sentence in his case, and we are
thus unable to review such a claim on appeal.5
B. Darwich’s Pro Se Brief
About one month after Darwich’s counsel filed an appellate brief on Darwich’s behalf,
Darwich filed his own supplemental brief6 in which he requests we vacate his conviction and
sentence on the grounds that: (1) he was subject to selective prosecution; (2) he was denied the
right to a fair trial by a jury of his peers; (3) the district court erred in determining he breached
5
We note that we may still review a waived claim where our failure to do so would result in a
plain miscarriage of justice. See, e.g., Humphrey v. United States Attorney General’s Office,
279 F. App’x 328, 331 (6th Cir. 2008) (citation omitted). But a review of the merits of
Darwich’s statutory interpretation claim does not indicate that the district court’s application of
§ 844(h)(1) was an error so egregious so as to qualify as a plain miscarriage of justice.
6
Although we denied Darwich’s motion to proceed pro se, we granted him leave to file his
supplemental brief.
9
United States v. Darwich
Case No. 13-1723
his immunity agreement with the Government; and (4) the district court erred in denying him
funds to obtain a private investigator.7
1. Selective Prosecution
Darwich, who is of Lebanese descent and Muslim faith, claims he was subject to
selective prosecution on the basis of his ethnicity and religion. He argues the Government chose
to prosecute the Arab participants in the insurance fraud scheme while foregoing prosecution of
more culpable Caucasian and African American participants. Darwich moved to dismiss the
fourth superseding indictment on the ground that the Government chose to prosecute the Arab-
American participants in the conspiracy but not the “White-Americans” or “Blac-Americans”
[sic]. The district court terminated Darwich’s motion without prejudice on the ground that it was
a repetitive, frivolous motion in violation of the court’s previous orders and rules of procedure.
Darwich also made various pro se motions discussing selective prosecution. Finding no
evidence of such a claim, the district court granted the Government’s motion in limine
precluding him from discussing the issue at trial.
To the extent Darwich intends to challenge the district court’s failure to dismiss his
indictment on selective prosecution grounds, we review such a claim for clear error. United
States v. Jones, 399 F.3d 640, 644 (6th Cir. 2005) (citation omitted).
7
It is worth noting that Darwich elected to proceed pro se throughout the majority of his case,
including his trial. The district court appointed him stand-by counsel, from whom the record
indicates Darwich did not seek much assistance. Consequently, the district court found itself
amidst a plethora of pro se motions, the majority of which the district court found frivolous and
repetitive. Many of the arguments Darwich makes in his supplemental brief are the same
arguments he made before the district court.
10
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Case No. 13-1723
“Prosecutors have great discretion when determining which cases to prosecute.” United
States v. Brimite, 102 F. App’x 952, 955 (6th Cir. 2004) (citation omitted). “As long as the
prosecutor has probable cause to believe that an accused has committed an offense defined by
statute, decisions regarding whether to prosecute and what charges to file generally rest entirely
within the prosecutor’s discretion.” Id. (citation omitted). “However, the decision to prosecute
may not be based on a defendant’s race, sex, religion, or exercise of a statutory or constitutional
right.” Id. (citation omitted).
To prevail on a selective prosecution claim, a defendant must show that the
federal prosecutorial policy had both a discriminatory effect and a discriminatory
intent. To establish discriminatory intent in a case alleging selective prosecution
based on race, a claimant must show that the prosecutorial policy was motivated
by racial animus; to establish discriminatory effect, the claimant must
demonstrate that similarly situated individuals of a different race were not
similarly prosecuted.
Jones, 399 F.3d at 645 (citation omitted).
Darwich has failed to establish either discriminatory intent or discriminatory effect.
Regarding discriminatory intent, Darwich claims that the Government prosecuted him only
because it believed he was funding a terrorist organization in Lebanon, not because it was
interested in prosecuting the fraud scheme. Darwich fails to support this bare allegation. Rather,
the evidence before the district court, including Darwich’s statements to investigators,
establishes that the Government had probable cause to believe that Darwich played a pivotal role
in the insurance fraud scheme. Regarding discriminatory effect, Darwich alleges that the
Government chose not to prosecute the more culpable Caucasian and African-American
participants in the fraud scheme and specifically points to the Government’s decision not to
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Case No. 13-1723
prosecute Sydney Chavetz. However, Darwich presents no evidence indicating any of these
individuals were similarly situated as is required to establish discriminatory effect.
In sum, Darwich’s unsubstantiated claims that he was targeted for prosecution as an Arab
Muslim are insufficient to establish selective prosecution, and therefore, the district court did not
clearly err in failing to dismiss the indictment on that ground.
To the extent Darwich intends to challenge the district court’s order granting the
Government’s motion in limine precluding him from discussing selective prosecution at trial, we
find the district court correctly granted the Government’s motion in limine, as “the defense of
selective prosecution is a matter that is independent of a defendant’s guilt or innocence, so it is
not a matter for the jury.” United States v. Abboud, 438 F.3d 554, 579 (6th Cir. 2006).
We therefore decline to vacate Darwich’s conviction or sentence on the ground of
selective prosecution.
2. Right to a Fair Trial by a Jury of his Peers
a. Batson Claim
Darwich next argues that the Government’s peremptory challenge to the only “Arabic”
juror violated his rights as outlined in Batson v. Kentucky, 476 U.S. 79 (1986).
“In Batson v. Kentucky . . ., the Supreme Court held that the Equal Protection Clause
forbids the prosecution’s use of peremptory challenges to exclude jurors on the basis of race.”
United States v. Simon, 422 F. App’x 489, 493 (6th Cir. 2011).
When a party raises a Batson challenge, courts must perform a three-step analysis.
First, the trial court must determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge on the basis of
race. . . . Once a prima facie case is established, the burden shifts to the
12
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Case No. 13-1723
prosecutor to present a race-neutral explanation for striking the juror in question. .
. . [A]s a final step, reviewing courts must assess the prosecutor’s credibility,
weigh the strength of the prosecution’s asserted justification against the
defendant’s prima facie case, and determine whether a defendant has carried his
burden of proving purposeful discrimination in light of all relevant circumstances,
including comparative juror analysis and arguments related to pretext.
Id. (internal quotation marks and citations omitted). “On direct review, ‘the trial court’s decision
on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded
great deference on appeal’ and will not be overturned unless clearly erroneous.” United States v.
Odeneal, 517 F.3d 406, 419 (6th Cir. 2008) (citation omitted).
Darwich claims that: (1) he objected to the Government’s peremptory challenge to the
only “Arabic” juror in the venire based on discrimination; (2) the district court overruled his
objection on the ground that another Arabic speaking juror remained; and (3) in doing so, the
district court accepted the Government’s explanation for its strike without a meaningful review.
In order to review this claim, we require a transcript of voir dire. Federal Rule of
Appellate Procedure 10 required Darwich to include the transcript in the record, or if it was
unavailable, prepare a statement from his recollection as to what occurred during voir dire, serve
it upon the opposing party, and submit it to the district court for settlement and approval to be
made part of the record. Smith v. Yarrow, 137 F. App’x 778, 780 (6th Cir. 2005) (citing Fed. R.
App. P. 10(b)(2), (c)).8 Because voir dire was not ordered transcribed in this case, Darwich had a
duty to provide a statement of recollection pursuant to Rule 10(c). Id. He did not.
8
Federal Rule of Appellate Procedure 10 provides, in relevant part:
(b)(2) Unsupported Finding or Conclusion. If the appellant intends to urge on
appeal that a finding or conclusion is unsupported by the evidence or is contrary
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Case No. 13-1723
Absent a transcript or statement of recollection, we cannot verify that Darwich “made a
proper objection, preserving the issue for appeal[,] or examine the explanation, if any, the district
court may have provided for its decision on the record.” Id. Accordingly, the record before us
does not allow for a review of this claim, and therefore, the issue is waived. See id. (internal
quotations and citations omitted); see also, Lane v. City of Jackson, 86 F. App’x 874, 874 (6th
Cir. 2004) (finding the appellant waived his sufficiency of the evidence claim where he did not
supply the court with a trial transcript, move for the preparation of a transcript at the
government’s expense, or prepare an appropriate statement of evidence under Rule 10(c));
Alhasan v. Pizza Hut of America, 70 F. App’x 828, 829 (6th Cir. 2003) (same).
b. Fair Cross-Section Claim
Darwich also argues he was denied his Sixth Amendment right to a jury chosen from a
fair cross-section of the community. “‘Whether a defendant has been denied his right to a jury
selected from a fair cross-section of the community is a mixed question of law and fact, which
to the evidence, the appellant must include in the record a transcript of all
evidence relevant to that finding or conclusion.
...
(c) Statement of the Evidence When the Proceedings Were Not Recorded or
When a Transcript Is Unavailable. If the transcript of a hearing or trial is
unavailable, the appellant may prepare a statement of the evidence or proceedings
from the best available means, including the appellant’s recollection. The
statement must be served on the appellee, who may serve objections or proposed
amendments within 14 days after being served. The statement and any objections
or proposed amendments must then be submitted to the district court for
settlement and approval. As settled and approved, the statement must be included
by the district clerk in the record on appeal.
Fed. R. App. P. 10(b)(2), (c).
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Case No. 13-1723
we review de novo.’” United States v. Suggs, 531 F. App’x 609, 618 (6th Cir. 2013) (citation
omitted).
The Sixth Amendment requires that a jury venire represent a fair cross-section of the
community. Id.
To show a prima facie violation of this requirement, [a defendant] must
demonstrate “(1) that the group alleged to be excluded is a ‘distinctive’ group in
the community; (2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.” Duren v.
Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Exclusion is
“systematic” if it is “inherent in the particular jury-selection process utilized.” Id.
at 366, 99 S.Ct. 664. Once a defendant establishes a prima facie case, the
government has the burden to justify the “infringement by showing attainment of
a fair cross section to be incompatible with a significant state interest.” Id. at 368,
99 S.Ct. 664.
Id. at 619.
Darwich claims he asserted a fair cross-section objection at the same time that he asserted
his Batson objection. Without a transcript of voir dire, however, we cannot determine whether
Darwich in fact made a proper objection that is preserved for appeal. Nevertheless, even
assuming he did, his claim fails on the merits.
Darwich claims that his jury pool did not consist of a fair cross-section of eligible Arab
and Muslim peers and that the jury selection procedures in the Eastern District of Michigan
systematically exclude Arab and Muslim citizens from the district’s jury pools. Darwich’s claim
fails because he has not presented any evidence of the elements required to establish a prima
facie violation. Rather, his entire argument is based on conclusory allegations. Darwich does
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Case No. 13-1723
state that his jury pool included only one prospective Arab juror and one juror who claimed to
speak Arabic, but “[i]t is incumbent upon the defendant to show more than that a particular jury
panel was unrepresentative.” Id. at 619 (citation omitted). Because Darwich failed to provide
any evidence that a “systematic underrepresentation was ‘inherent in the particular jury-selection
process utilized[,]’” he cannot establish that he was denied his right to a jury selected from a fair
cross-section of the community. We therefore decline to vacate his conviction and sentence on
this ground. Id.9
3. Breach of Immunity Agreement
Darwich next argues the district court erred in determining that he breached his immunity
agreement with the Government.
Two main types of immunity the Government may offer a suspect in return for his
disclosure of information are transactional immunity and use immunity. Transactional immunity
“is full immunity from prosecution for any offenses to which [the suspect’s] testimony relates.”
United States v Fitch, 964 F.2d 571, 575 (6th Cir. 1992) (citation omitted). In contrast, use
immunity precludes only the use of the suspect’s statements in a prosecution against him.
Kastigar v. United States, 406 U.S. 441, 453 (1972). An immunity agreement granting a
defendant use immunity is commonly referred to as a Kastigar agreement. “The conditions that
will constitute a breach of the immunity agreement are governed by the agreement itself.” Fitch,
964 F.2d at 574 (citation omitted). The Government bears the burden of proving a breach, and
9
Darwich also argues that the district court should have conducted a hearing on his fair-cross
section claim. However, the cases he cites in support require a hearing on Batson challenges, not
on fair-cross section claims. See United States v. McAllister, 693 F.3d 572, 580 (6th Cir. 2012);
United States v. Torres-Ramos, 536 F.3d 542, 559 (6th Cir. 2008).
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Case No. 13-1723
the breach must be material and substantial. Id. (citation omitted). “Although an inadvertent
omission or oversight would not rise to the level of a materially false statement so as to
constitute a breach of the agreement, a bad faith, intentional, substantial omission . . . does
constitute a materially false statement and thereby a breach of an agreement.” Id. (citation
omitted).
On May 13, 2009, Darwich signed a document granting him some level of immunity
from prosecution. On May 22, 2009, FBI agents interviewed Darwich. Thereafter, Darwich was
charged with one count of conspiracy to commit arson and two counts of arson.
Darwich moved to dismiss the indictment, or in the alternative limit the admissibility of
any statement he made to law enforcement at the May 22nd meeting, on the ground that he
believed the Government granted him transactional immunity. The district court held an
evidentiary hearing to determine: (1) the type of immunity agreement that existed between the
Government and Darwich; and (2) whether Darwich breached that immunity agreement. The
Government argued that the document Darwich signed on May 13th was a Kastigar agreement
granting him use immunity and that Darwich breached that agreement by making materially false
statements and omissions during his May 22nd proffer. Darwich attempted to establish that he
signed a document granting him transactional immunity. He argued that the Government
conspired with his counsel to either forge his signature on a separate Kastigar agreement or
change the substance of the transactional immunity agreement after he signed it.
The district court ultimately determined that the agreement Darwich signed on May 13th
was a Kastigar letter granting him use immunity and that Darwich failed to prove the existence
17
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of a transactional immunity agreement. Thus, it denied Darwich’s motion to dismiss.10 The
district court then determined that Darwich substantially and materially breached that Kastigar
agreement by intentionally making false statements and omitting relevant facts during his May
22nd proffer. Following multiple motions by Darwich challenging these determinations, the
district court granted the Government’s motion in limine preventing Darwich from discussing the
alleged transactional immunity agreement at trial.
Darwich now argues the district court erred in determining that he was not granted
transactional immunity and in finding that he breached whatever immunity agreement he did
have. Repeating the same argument he made before the district court, he first contends the
Government granted him transactional immunity. Because he does not cogently develop an
argument to that effect, however, we decline to disturb the district court’s finding that the only
immunity agreement that existed between Darwich and the Government was that for use
immunity as outlined in the Kastigar letter.
Darwich next argues the district court erred in finding that he substantially and materially
breached his immunity agreement. It did not. The Kastigar agreement required Darwich to
“make a complete and truthful statement of his knowledge of (and role in) the matters under
investigation, and to fully and truthfully answer all questions.” It explicitly clarified that
Darwich “may not omit facts about crimes, other participants, or his [ ] involvement in the
offenses, and must volunteer all information that is reasonably related to the subjects discussed
in the debriefing.” In exchange for such disclosure, the Government would not offer any of
10
Darwich later moved to dismiss the Fourth Superseding Indictment on the same grounds, which
the district court also denied.
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United States v. Darwich
Case No. 13-1723
Darwich’s statements in its case-in-chief in any criminal prosecution of Darwich for the matters
under investigation. If Darwich failed “to provide truthful and complete information (such as by
making a false statement, providing false information, omitting facts or otherwise misleading the
government),” there would be no restrictions on the Government’s use of any of his statements.
In other words, if Darwich breached the agreement, he would no longer enjoy immunity.
The district court found that Darwich breached the agreement by: (1) failing to provide
information regarding his alias, Abdullah Derbas; (2) intentionally lying to or misleading agents
regarding their investigation into the marriage of Fatima Toufaili11 and the paternity of her eldest
child; (3) intentionally omitting or downplaying Toufaili’s involvement in the arsons; (4) failing
to provide any information regarding the involvement of “Tony,” “Playboy,” Rabih Ali, Mazen
Mazraani, and possibly others; (5) failing to volunteer details regarding all of the properties
involved in the various arsons; and (6) misrepresenting his business. The district court also
pointed to Darwich’s tape recorded post-proffer admissions to his wife that he had lied to the
Government as evidence that Darwich did in fact breach the agreement by lying to federal
officials.
Citing Fitch, 964 F.2d at 571, Darwich argues that his lies were just a thinly veiled
attempt to minimize his involvement in the scheme, which he maintains does not constitute a
substantial material breach. Fitch is distinguishable. In Fitch, we found that the defendant did
not substantially and materially breach his immunity agreement where his false implication of
another as the source of a drug deal was nothing more than an effort to minimize his involvement
11
Fatima Toufaili is Darwich’s wife and co-defendant.
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United States v. Darwich
Case No. 13-1723
and that the Government was not misled by his untruths. Id. at 574–75. Even assuming
Darwich’s misrepresentations similarly did not constitute a substantial material breach, that does
not render clearly erroneous the district court’s finding that his omissions did. Moreover, we
emphasized in Fitch that the defendant’s fabrication was not sufficient to constitute a substantial
material breach because he supplied the Government with a substantial amount of incriminating
information and assisted the investigation in other ways. Id. In other words, we found that
although defendant’s fabrications were a technical breach of the agreement, they were
insufficient to constitute a substantial material breach because the Government still “received the
benefit of its bargain.” Id. at 575. Darwich does not demonstrate a similar result here and
neither does our review of the record.
Accordingly, to the extent Darwich challenges the district court’s denial of his motion to
dismiss the indictment based on an alleged immunity agreement, we find that the district court’s
determination that he substantially and materially breached his Kastigar agreement was not
clearly erroneous. See id. at 574 (applying the clearly erroneous standard to review of district
court’s decision as to whether the defendant breached his immunity agreement). To the extent
Darwich challenges the district court’s order granting the Government’s motion in limine
precluding him from discussing the alleged transactional immunity agreement at trial, we cannot
find that the district court abused its discretion in preventing discussion of an immunity
agreement that it found did not exist. See Abboud, 438 F.3d at 579 (reviewing evidentiary
rulings for abuse of discretion). We therefore decline to vacate Darwich’s conviction and
sentence on this ground.
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United States v. Darwich
Case No. 13-1723
4. Funds for a Private Investigator
Lastly, Darwich argues the district court denied him due process and a fair trial by
denying his requests for funds for a private investigator (“PI”) pursuant to 18 U.S.C. § 3006A.
“We review the district court’s denial of an indigent defendant’s request for authorization
for investigative services under 18 U.S.C. § 3006A for an abuse of discretion.” United States v.
Pacheco, 466 F. App’x 517, 521 (6th Cir. 2012) (citing United States v. Gilmore, 282 F.3d 398,
406 (6th Cir. 2002)).
18 U.S.C. § 3006A(e)(1) permits district courts to authorize payment for investigative
services for an indigent defendant. Id. District courts may authorize investigative services
“‘upon a demonstration that (1) such services are necessary to mount a plausible defense, and
(2) without such authorization, the defendant’s case would be prejudiced.’” Id. (citing Gilmore,
282 F.3d at 406).
Throughout the pendency of his case, Darwich made numerous motions requesting funds
for a PI. The district court denied all of those motions for failure to establish necessity. Darwich
does not specify the orders of which he seeks review, but we find that the district court did not
abuse its discretion in denying any of Darwich’s § 3006A(e)(1) motions. First, the district court
did not abuse its discretion in denying Darwich’s early motions for a PI as they consisted of only
general averments that he required a PI to aid in his defense and did not specify what he expected
the PI to find.
The district court likewise did not abuse its discretion in denying Darwich’s later motions
for a PI. Although his later motions specified the various topics that he intended the PI to
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United States v. Darwich
Case No. 13-1723
investigate and the various tasks he required the PI to undertake, a review of those reasons and
tasks confirms that Darwich still failed to establish necessity because he sought “information as
to issues already definitively decided by the court, information which is irrelevant, or, most
prominently, information which could be obtained through Defendant’s stand-by counsel.”
Furthermore, we agree with the district court that Darwich failed to show that his stand-by
counsel was incapable of completing, or at least starting, the tasks for which Darwich sought a
PI.
Accordingly, although Darwich was indigent, he failed to show through any of his
motions that appointment of a PI, especially in light of his stand-by counsel, was necessary to
mount a plausible defense. The district court thus did not abuse its discretion in denying any of
Darwich’s motions for a PI, and we decline to vacate his judgment of conviction or sentence on
this ground.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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