United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER AFFIRMING DEFENDANT'S
CONVICTION AND SENTENCE
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Ramess Nakhleh's
appeal from his misdemeanor conviction. The issues were fully
briefed. Because the facts and arguments are adequately
presented in the briefs and record and because oral argument
will not significantly aid the decisional process, the appeal
will be decided based on the parties' briefing.
See E.D. Mich. LR 7.1(f)(2); Fed. R. App. P.
34(a)(2)(C); Fed. R. Crim. P. 58(g)(2)(D). For the reasons
discussed below, the Court affirms Defendant's conviction
for disorderly conduct.
FACTS AND PROCEDURAL HISTORY
8, 2016, Defendant Ramess Nakhleh went to the Highland Park
Post Office to mail a package. When Nakhleh arrived at the
post office, the box was unsealed; when a postal worker told
Nakhleh that he would have to seal the box himself, Nakhleh
went to a nearby store to buy tape. When he returned to the
post office, Nakhleh asked a second postal worker to seal the
box for him. The worker refused, and Nakhleh sealed it
himself. The box could still not be processed, however,
because the shipping label was missing. The label was inside
the box, so Nakhleh reopened the box and retrieved it.
Nakhleh did not want to affix the label, so he asked the
postal worker to do so; she refused and another customer
volunteered to place the label on the box. With the process
of preparing the box for shipment completed, the postal
worker processed the package and Nakhleh left the post
absence from the post office was short-lived. While on his
way home, Nakhleh reflected on the various exchanges at the
post office and became upset at his treatment by the postal
workers. He returned to the post office, bringing an audio
recorder with him to record his conversations with the postal
employees. He approached the second postal worker and asked
for the box back, explaining that he had left something in
it. The worker informed him that she was not permitted to
return the box for any reason. Nakhleh was apparently upset
with this response; one worker testified that he became loud,
rude, and irate, while another testified that he was being
police arrived, and Nakhleh explained that he simply wanted
the box back because he wanted to retrieve something from it.
The police asked what he needed to get out of it, to which
Nakhleh replied, “What if it's a bomb?” After
a follow-up question, Nakhleh repeated the question:
“What if it's a bomb?” The police evacuated
the post office, and ultimately the post office was closed
for two hours. During that time, a postal inspector trained
in the identification of dangerous or suspicious items
x-rayed the package and determined that it did not contain a
was charged with disorderly conduct in a post office.
See 39 C.F.R. § 232.1(e). Following trial,
Magistrate Judge Grand determined that the prosecution had
shown beyond a reasonable doubt that Nakhleh's conduct
created a noise that was loud and unusual and that he
disturbed the employees from performing their duties.
Magistrate Judge Grand further found that Nakhleh's
conduct set off the chain of events that impeded and
disturbed the general public in use of the post office.
Accordingly, Nakhleh was convicted of disorderly conduct. 18
U.S.C. § 3061(c)(4)(B). Nakhleh was sentenced to six
months' probation, which included attendance at
anger-management classes, and to pay a $1, 000 fine.
now brings this appeal. He argues (i) that he did not make a
“loud and unusual” noise as required by the
regulation, as he was merely speaking in his normal voice;
(ii) that the evidence was insufficient to support the
conviction; (iii) that the magistrate judge erred in
crediting testimony over a contemporaneous audio recording;
and (iv) that the sentence imposed was unreasonable. For the
reasons that follow, the Court upholds Defendant's
conviction and sentence.
STANDARD OF REVIEW
scope of review on an appeal to the district court from a
conviction in front of a magistrate judge is the same as the
scope of review on an appeal to the court of appeals from a
conviction in a district court. Fed. R. Crim. P. 58(g)(2)(D).
Accordingly, the Court will review the instant question of
statutory interpretation de novo. United States v.
Lumbard, 706 F.3d 716, 720 (6th Cir. 2013). Regarding
the sufficiency of the evidence supporting the conviction,
the Court is tasked with reviewing the evidence in the light
most favorable to the prosecution and determining whether
“any rational trier of fact could find the
elements of the crime beyond a reasonable doubt.”
United States v. Gooch, 850 F.3d 285, 288 (6th Cir.
2017) (emphasis in original) (internal quotation marks
also disputes an evidentiary ruling made by the magistrate
judge. An “abuse of discretion is the proper standard
of review” of a trial court's evidentiary rulings.
General Elec. Co. v. Joiner, 522 U.S. 136, 142
(1997). An abuse of discretion occurs only when a reviewing
court has “a definite and firm conviction that the
trial court committed a clear error in judgment.”
United States v. Boothe, 335 F.3d 522, 526 (6th Cir.
2003) (internal quotation marks omitted).
also argues that the sentence imposed is substantively
unreasonable. This objection was not raised in the trial
court. Typically, if a defendant has not raised a
reasonableness objection in the trial court, a reviewing
court will apply a plain-error standard to such a challenge.
See Lumbard, 706 F.3d at 720. In the Sixth Circuit,
however, trial judges are required, after handing down a
sentence, to ask the parties whether there are any objections
to the sentence pronounced that have not been previously
raised. See United States v. Bostic, 371 F.3d 865,
872 (6th Cir. 2004). In this case, after handing down the
sentence, the magistrate judge merely asked “[i]s there
anything further then?” Trial Tr. at 127 (Dkt. 2). This
question is not sufficient to satisfy the Bostic
test. See United States v. Camacho-Arellano, 614
F.3d 244, 247 (6th Cir. 2010) (finding that asking defense
counsel if there was “anything else” did not
constitute asking the Bostic question). Accordingly,
despite the lack of objection in the trial court, because the
Bostic question was not asked, the Court will apply
an abuse-of-discretion standard to the sentence. United
States v. Daniels, 641 F. App'x 461, 466-468 (6th
“Loud and ...