U.S. v. Rahman

• Citation: 34 F.3d 1331
• Decision Date: 13 September 1994
• Docket Number: No. 92-3478,92-3478
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jawdat Abdel RAHMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1331

34 F.3d 1331

UNITED STATES of America, Plaintiff-Appellee, v. Jawdat Abdel RAHMAN, Defendant-Appellant.

No. 92-3478.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 6, 1994.

Decided Sept. 13, 1994.

Barry R. Elden, Asst. U.S. Atty., Debra Bonamici (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Cynthia Giacchetti, Chicago, IL (argued), for defendant-appellant.

Before CUDAHY, COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The defendant, Jawdat Abdel Rahman is a 65-year old Arab immigrant who was born in (what was then) Palestine. He became a naturalized citizen in 1988. Rahman has owned or operated a number of stores on the south side of Chicago since then. He speaks mainly Arabic and indicates that he has a slight understanding of English. When Rahman learned that his son and son-in-law had been "ripped off" by a friend named Yousef Haik in a deal involving hijacked Christmas merchandise, Rahman demonstrated considerable verbal outrage. His vehement public comments regarding Haik (such as threatening to "pull his hair from his beard") ultimately came to the attention of the FBI. Rahman was contacted by an undercover agent posing as a "hit man." As a result of Rahman's conduct recounted below, he was charged with soliciting a violent felony, attempted extortion and robbery. We now address his appeal of his conviction on all three charges.

FACTUAL BACKGROUND

The Merchandise

On November 15, 1991, a truck driver was assigned to transport a trailer load of House of Lloyd Christmas novelties between the Burlington Northern Railroad yard and the Conrail Railroad yard in Chicago. The driver picked up the load, but never delivered it. Instead, he sold the load to Nashat Rahman ("Nashat") and Ahmad Mohammed, the defendant Jawdat Rahman's son and son-in-law. After Nashat and Mohammed had unloaded the merchandise, the driver abandoned the trailer in the parking lot of a Sears store.

Nashat and Mohammed brought their trailer of merchandise to their friend, Yousef Haik, the owner of a grocery store. Mohammed asked Haik to take a share of the load, and to help store it. Haik, who was planning to relocate his business to Cincinnati, agreed to allow Nashat and Mohammed to store the load in a bakery space he had rented across the street from his grocery.

The load became an albatross. Nashat and Mohammed tried to sell the entire load to a man from Detroit, but the deal fell through. At the end of November, Mohammed suggested that Haik take the load to Cincinnati, open a store, and attempt to sell the goods there. Haik agreed, for a one-third share of the profit. Mohammed gave Haik $1600 cash to transport the load to Cincinnati and rent a store.

The Christmas novelties did not sell well. By the end of December, Haik had only sold $1200-$1500 worth of the merchandise. Finally, Haik rented a storage locker in Cincinnati, and stored the unsold goods there. He did not contact Nashat or Mohammed to tell them about the storage, nor did he give them any of the money from the sales. In fact, Nashat and Mohammed did not hear from Haik again.

Meanwhile, Nashat and Mohammed were working at the Windy City Food and Liquor store, which Rahman owned. Nashat and Mohammed ran the store, and paid rent to

Rahman each month. In the first week of December 1991, Rahman came to the store to collect his rent. Nashat and Mohammed were unable to pay Rahman because they had spent their rent money on the Christmas novelties. Nashat assured Rahman he would have the rent in three or four days. When Rahman later returned for the rent, Nashat and Mohammed still could not pay, and they were forced to explain to Rahman what had happened with Haik, the merchandise, and their money. Rahman was outraged. Nashat testified at trial that Rahman threatened to disown him, kill him, and fire him from his job.

FBI Informant Mahmoud Samara

In mid-January 1992, Rahman was still ranting about the incident. Mahmoud Samara, a friend of Mohammed's, came to the Windy City Food & Liquor store to sell baby formula. As Samara walked into the store, he overheard Rahman speaking loudly to Nashat, Mohammed, and a third person, about Yousef Haik. Samara heard Rahman say that he was "going to finish Yousef," "going to pull his hair from his beard," and "let his kids live without their father." Mohammed went behind the cash register to meet Samara, and rebuked Rahman, saying, "you want to tell the story for everybody?" Rahman then calmed down.

Samara asked if anyone wanted to purchase milk. Rahman asked Samara where he got the milk, and Samara responded that he got it in Ohio. Upon hearing this, Rahman called Samara "son," poured him coffee, and proceeded to tell Samara that he, Nashat and Mohammed had bought a trailer load of merchandise and stored it at Haik's place in Ohio. He gave Samara Haik's address and offered him $5,000 to locate Haik, and report back to him. Rahman told Samara that after Samara had reported on Haik, Rahman would himself go to Ohio and "put a bullet in [Haik's] head."

Samara wanted to earn the money, so he went to Ohio to look for Haik. What Rahman did not know, however, was that Samara was also a government informant. ¹ At trial, Samara testified that he intended to find Haik, report to Rahman, collect the money, then turn Rahman in to the FBI. Samara went to Ohio, but was unable to locate Haik.

Upon Samara's return to Chicago, he called the FBI and told an agent the story of how defendant had told him about the trailer of merchandise, made death threats against Haik, then offered him money to find Haik in Ohio. On February 5, 1992, FBI agents sent Samara to Windy City Food & Liquor equipped with a recording device. The agents had instructed Samara to tell Rahman that Samara's wife's cousin was a Mafia hit man, and to offer to introduce Rahman to the hit man.

Samara entered the store and spoke to Rahman. According to the transcript of their conversation, translated from Arabic, Samara told Rahman that he had been in Ohio, and that Haik was rumored to be in Michigan. Samara said that he could obtain Haik's new address in a week. Rahman said, "Finish him off completely and, I don't want any money."

Samara then told Rahman that his wife's cousin worked with the Mafia. Samara explained, "This guy will get you rights [meaning, your share of the merchandise], he will kill him completely." He then asked, "Do you want me to bring him, so that you can meet him?" Rahman agreed.

Rahman told Samara that this cousin could have a third of the merchandise if he could secure Rahman's "rights." Samara said, "By God he will come here just like a shoe because he had ripped off some people," to which Rahman replied, "Many, what do I have with other people, all I want is what is rightfully mine. I just want my entitlement."

At the end of the conversation, Samara said, "O.K., I have to go now, I'll pass by the day after tomorrow with the young man and have you meet him and you can talk to him FBI "Hit Man" meets with Rahman

                O.K.?  ... And you see what he tells you."   Rahman said, "But I want to know where the man is."   Samara asked, "Do you want him to finish him off?"   Rahman replied, "After I get my rights he can finish him off completely....  And he can have an extra $5,000."
                

A week later, on February 12, 1992, Samara visited Rahman with FBI Special Agent Henke, who was posing as a hit man named Don. Henke wore a recording device. The February 12 recording was partly in Arabic and partly in English--Rahman spoke to Henke in rudimentary English, but to others in Arabic. Samara introduced Henke as "the guy who will look for" and "find" Haik. Rahman immediately began to blurt out his predicament with the trailer of merchandise to Henke.

Rahman proposed to Henke:

I wanna pay nothing okay. If you get it this guy, okay, get it the merchandise okay from him the money, okay, I give you, if you take thirty thousand dollars, I give you ten thousand dollars.... If you get nothing ...

At which point, Henke interrupted, "I kill people for a living. Now [Samara] here tells me you want somebody dead, is that right? Yes or no?" Rahman responded, "Uh huh yes." Moments later, Samara explained to Rahman in Arabic, "If this guy says that he'll get him for you, then he will." Rahman said, "What do I need with him? All I want is my money." Then Rahman added, "Now if he brings his head, what am I going to gain? I want my rights, he cheated me, he can have the third, a third of the amount that he retrieves...."

The remainder of the conversation continued in a similar fashion, with Henke repeatedly trying to propose murder or violence, and Rahman responding with non sequitur statements regarding the market value of the goods or what percentage Henke would get if he retrieved the merchandise.

Henke told Rahman that he charged $5,000 for his services, $2,500 of which would have to be paid up front. Rahman responded, "I tell they uh, Mahmoud ... okay, that trailer he take the trailer, you know that.... I don't wanna want this guy die right now, I want the money. If he get it the money, fifty thousand, take sixteen, seventeen thousand. If you get it thirty thousand, get it ten thousand." Confused, Henke proclaimed, "Oh I'm not, I'm not a bill collector." He then asked Rahman to clarify whether he wanted Haik murdered or his legs broken. Rahman answered, "I don't want no one to kill him, I want the money."

Again, Henke later said to Rahman, "the reason I'm here is, he told me you wanted somebody dead." Rahman retorted, "No I don't no one dead, yet." Henke asked Rahman two more times whether Rahman wanted him to kill Haik. Each time, Rahman emphatically responded that he did not, but that Henke could keep one-third of whatever he recovered.

Henke, however, still was not finished trying to solicit Rahman. He asked Rahman, "how do you expect to collect the money? What do you want me to do...