U.S. v. Khalil

• Decision Date: 09 January 2002
• Docket Number: No. 00-3626.,00-3626.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael KHALIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

279 F.3d 358

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael KHALIL, Defendant-Appellant.

No. 00-3626.

United States Court of Appeals, Sixth Circuit.

Argued November 2, 2001.

Decided and Filed January 9, 2002.^*

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Frank J. Marine (briefed), Patrice M. Mulkern (argued and briefed), U.S. Department of Justice, Organized Crime & Racketeering Section, Washington, DC, for Plaintiff-Appellee.

Robert M. Morgan (argued and briefed), Detroit, MI, for Defendant-Appellant.

Before: KEITH, BOGGS, and MOORE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

Thomas Michael Khalil, was convicted of conspiring to conduct the affairs of an organization through a pattern of racketeering, attempting to commit a violent crime in aid of racketeering, and two counts of distributing marijuana, in connection with his role as national president of the Avengers Motorcycle Club. The district court sentenced him to sixty months' imprisonment followed by supervised release for a term of three years. Khalil appeals his conviction and the sentence imposed by the district court. For the reasons stated below, we AFFIRM the conviction and sentence.

I.

On September 15, 1999, a federal grand jury returned a four-count indictment charging Thomas Michael Khalil, a.k.a. "Foot," with conspiring to conduct the affairs of the Avengers Motorcycle Club through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d); attempting to commit a violent crime in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(6) and 2; and with two counts of marijuana distribution in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). As part of the pattern of racketeering, the indictment charged the defendant Khalil with agreeing that two or more acts involving narcotics distribution, interstate transportation of stolen motor vehicles and goods, mail fraud, and illegal gambling would be committed by a coconspirator in conducting the affairs of the enterprise. The indictment stemmed from a four-year investigation of motorcycle gangs operating in Lorain County, Ohio. Defendant Khalil's trial was consolidated with that of Ronald DeAngelo, a chapter president of the Avengers' club in Columbus, Ohio.

Khalil is the national president of the Avengers Motorcycle Club, a national motorcycle club divided into local chapters located in and around Michigan, Ohio, West Virginia, Indiana, and Illinois. The national headquarters is in Pontiac, Michigan. Avengers members identify themselves by wearing "patches" or "colors," which are articles of clothing bearing the insignia of the club. The organization has national bylaws and a constitution, and its hierarchy includes elected national, state, and local chapter officers. Testimony was offered at trial to show that Avengers members were required to follow the orders of club officers and would be disciplined or even physically attacked if they failed to obey.

At trial, the government introduced extensive evidence linking Khalil to drug trafficking activities in the Avengers organization. There was evidence indicating that Khalil supplied marijuana in pound quantities to a fellow Avenger, Michael Cristarella, for distribution to Avengers members in Ohio and others, including Dale Frederick. In September 1995, Frederick became an informant for the FBI after agents searched his home and found nine pounds of marijuana, which Frederick had received from Cristarella. Pursuant to the investigation, Frederick became a member of the Avengers and introduced undercover agent Donald Barker to the organization; Barker eventually became a member himself. Sometime in 1998, the relationship between Khalil and Cristarella broke down, at which point Frederick undertook to purchase drugs directly from Khalil. On November 24, 1998, and April 17, 1999, Khalil made two drug sales to Frederick, each involving approximately ten pounds of marijuana.

Evidence was also introduced at trial concerning contemplated acts of violence by the Avengers against a rival motorcycle club, the Iron Coffins. Witnesses described an ongoing feud between the Avengers and the Iron Coffins, which arose in the early 1990s after a member of the Iron Coffins shot a member of the Avengers in Lorain County. After the shooting, the Avengers temporarily succeeded in driving the Iron Coffins out of Lorain County. In 1998, however, Iron Coffins members began to patronize local bars in Lorain County, wearing their club "patches" and bragging that they intended to open a chapter in Lorain. This led to discussions and plans by the Avengers to take action against the Iron Coffins.

On July 29, 1998, a group of Lorain County Avengers traveled to a local tavern in search of Iron Coffins members. The group was armed with a stun gun, a club, leather gloves with sand in the knuckles, and other weapons, and intended to assault the Iron Coffins, who they believed to be at the bar. On another occasion, on August 26, 1998, Avengers members met at the Lorain clubhouse, whereupon they split into two groups and went to separate bars in Elyria, Ohio, to find and assault members of the Iron Coffins. In both cases, however, Frederick and Barker tipped off local law enforcement, who established a presence at the bars and prevented an attack.

On November 21, 1998, a national meeting of Avengers chapter presidents was held, at which the tension between the Iron Coffins and the Avengers was a prominent topic. Khalil presided over this meeting, and encouraged members to take action against the Iron Coffins. Khalil chastised the Avengers members for not having taken action earlier in connection with their rivalry with the Iron Coffins, saying "I'm surprised I ain't heard somebody's got the first f* * *in' [C]offin's patch. I guess I'll have to go out and get it myself." J.A. at 634. On November 22, 1998, chapter president DeAngelo held a meeting with the Lorain County Avengers and told them that he was under pressure from Khalil, who felt that the local members were not doing enough to deal with the Iron Coffins. DeAngelo explained to the Avengers that "[w]e're at war with them." J.A. at 642.

Khalil testified at his trial. He admitted to the two distributions of marijuana to Frederick in 1998 and 1999, but denied any other involvement with drugs or drug trafficking. Khalil asserted that he only agreed to supply Frederick with drugs after Frederick repeatedly hounded him to sell him drugs and played upon his sympathies concerning Frederick's diabetes and poor physical condition. Khalil denied involvement in any other criminal activity in connection with the Avengers organization, and denied ordering an assault on the Iron Coffins.

At the conclusion of the trial, the jury convicted Khalil on all counts and the district judge sentenced him to sixty months in prison. Khalil filed his timely notice of appeal on May 10, 2000.

II.

A.

The first issue raised by Khalil is whether the district court committed reversible error by admitting hearsay evidence during the government's redirect examination of FBI agent John Moran. This circuit has held that all evidentiary rulings of the district court, including its determination of whether testimony is inadmissible hearsay, are reviewed for abuse of discretion. Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir.1999).

During his cross-examination of Agent Moran, Khalil's attorney suggested that the FBI had improperly targeted the defendant because he was the national president of the Avengers Motorcycle Club, and that FBI agents sent Frederick to entrap the defendant because their investigation was nearing an end and they had not obtained the necessary evidence to implicate Khalil.¹ On redirect, the government asked Agent Moran whether he had "interviewed witnesses with regard to Mr. Khalil's activities in '97 and '98 through the Avengers," and whether he had previously had "discussions with other agents who were conducting investigations in this matter." J.A. at 418. Agent Moran answered affirmatively to both questions. The government then asked whether "based on all of that," Agent Moran had "an awareness as to whether Mr. Khalil was engaging in drug trafficking in 1997 and 1998 and prior." J.A. at 418-19. In response, Agent Moran stated that "Mr. Khalil was supplying marijuana and cocaine to the Avengers in Ohio and other locations in Michigan." J.A. at 419. The defense objected to this testimony. The government responded that this line of questioning was necessary to rebut the implication raised by the defendant that the FBI had improperly targeted Khalil in its investigation. The district court overruled the defendant's objection and admitted the testimony. Khalil contends that Agent Moran's testimony is inadmissible hearsay because it recounts the out-of-court statements of unidentified "witnesses" and "agents."

Hearsay is defined as an out-of-court statement "offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The record reveals that the challenged testimony was elicited in an effort to explain the basis for the FBI's decision to pursue the investigation of the defendant, and not to prove the truth of the matter asserted — i.e., that Khalil was actually engaged in narcotics trafficking in 1997 and 1998. If properly admitted for this purpose, Agent Moran's testimony was not hearsay. See United States v. Pulley, 922 F.2d 1283, 1288 (6th Cir.), cert. denied, 502 U.S. 815, 112 S.Ct. 67, 116 L.Ed.2d 42 (1991) ("If [out-of-court statement made to investigating agent] was offered to prove that [the agent] had good reason to continue his search of the house, it was not hearsay."). Although this testimony is still subject to exclusion if its unfair prejudicial effect outweighs its probative value, Fed.R.Evid. 403, we conclude that the defendant "opened the door" to such testimony by placing Agent Moran's state of mind directly at issue. See ...