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United States v. Al-Maliki

United States Court of Appeals, Sixth Circuit

May 27, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MALEK M. AL-MALIKI, Defendant-Appellant

Argued March 5, 2015

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Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:13-cr-00121--Sara E. Lioi, District Judge.

ARGUED:

Travis Alan Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for Appellant.

Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

Travis Alan Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for Appellant.

Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

OPINION

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McKEAGUE, Circuit Judge.

A jury of his peers found Malek al-Maliki guilty of a heinous crime: sexually abusing his own two children, ages twelve and three. Al-Maliki challenges several aspects of his conviction and sentence. His constitutional challenge to his conviction is a close call, but it ultimately fails under plain-error review. The rest of his challenges fail as well. We affirm.

I

Iraq native Malek al-Maliki had his first child, John Doe #1, with Hinda al-Rhannai in 1998. Two years later, the couple had a civil marriage and al-Maliki (but not his wife) became a United States citizen. Their physical union did not last long. Although they remained legally married, the couple has been separated since 2000 or 2002. Despite the separation, they had one more child, John Doe #2, in 2007. Since around 2000, al-Maliki has lived alone on the west side of Cleveland, Ohio, and al-Rhannai has lived in Morocco and then Syria with the two sons.

Al-Maliki visited his family on a few occasions over the years. The United States claims that during one trip from August to November 2010, he sexually abused his two children (then ages twelve and three), violating 18 U.S.C. § § 2423(c) and (e). A grand jury indicted him under that statute, which at the time punished any United States citizen " [1] who travels in foreign commerce, and [2] engages in any illicit sexual conduct," which includes noncommercial sexual acts with a minor, or any attempts to do the same.

Al-Maliki denied all of the charges, and a trial began. The jury heard from Mark Goldrup, a vice consul at the U.S. Embassy in Damascus, Syria. He testified that he put al-Rhannai and her children in a safe shelter after al-Rhannai came to the embassy seeking assistance for injuries consistent with domestic abuse. The jury also heard from Department of Homeland Security Special Agent Gabriel Hagan. She testified that she observed the sons' open affection toward their mother, but that al-Maliki insisted his wife abused the sons. She also testified about a live interview she saw of John Doe #1, where the boy cried and hid his face while struggling to recount the sexual abuse (the " sin," he called it) that he suffered.

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Most critically, the jury heard John Doe #1 himself. He told of the horrible things that his father did to him on several occasions, including during al-Maliki's August-to-November 2010 trip to Syria. Early in the trip, John Doe #1 woke abruptly to his mother screaming at al-Maliki for touching the boy's upper thigh while he slept. Al-Maliki " [did not] care," exclaiming, " He is my son. . . . I will touch him. I will do whatever I want." R. 97 at 70. Several days later, al-Maliki lifted his son onto his lap and tried to take off his boxers. John Doe #1 resisted and his mother intervened. Al-Maliki then beat his wife. The abuse only got worse. Later, al-Maliki pinned John Doe #1's arms to his sides with one hand, covered his mouth with the other, and anally raped him. On another occasion, John Doe #1 observed his father masturbating into food items, which were then given to the boy to eat or drink. Al-Maliki also attempted to trick John Doe #2--his three-year-old son--into performing oral sex on him.

With these proofs, the government rested. Al-Maliki moved for a Rule 29 directed verdict (arguing that the government had not established all of the elements of the offense). But the district court denied the motion.

The defense called one witness: al-Maliki. He testified about his " very bad" relationship with his " very disrespect[ful]" and " stubborn" wife. R. 97 at 191. She neglected their children, he said. As for his oldest son, al-Maliki said that he loved him despite the boy's " hate in his heart." Id. at 192. Al-Maliki denied ever committing the sexual abuse. He thought his son was " coached by his mom," who " tried to build . . . some hate" between al-Maliki and the boy. Id. at 195.

The jury didn't buy al-Maliki's story. It found him guilty beyond a reasonable doubt of engaging and/or attempting to engage in illicit sexual conduct in a foreign place with both ...


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