United States v. Rahman

Decision Date09 November 2015
Docket NumberNo. 13–1586.,13–1586.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Feras RAHMAN, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Kelly B. Watzka, Assistant U.S. Attorney, Office of the United States Attorney, Milwaukee, WI, for PlaintiffAppellee.

Joseph Aragorn Bugni, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for DefendantAppellant.

Before WOOD, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

Opinion

WILLIAMS, Circuit Judge.

In the early morning hours of January 19, 2010, the building that housed the Black & White Café, Grecian Delight, Cush Lounge, the Pizza Man restaurant and ten apartments burned to the ground. In hopes of discovering how the fire started, fire investigators asked Feras Rahman to sign a consent form that allowed investigators to look for the “origin and cause” of the fire. While investigating the fire, investigators walked together across the basement performing a line search looking for a laptop and safe that Rahman told investigators were there, but after much searching, investigators found neither. Based on the absence of the laptop, the presence of gasoline, and other evidence, investigators settled on arson as the cause of the fire and Rahman as the suspect. Rahman was charged with, among other things, arson and lying to investigators about the location of the laptop. He was eventually acquitted of the arson counts, but convicted of one count of providing false statements to the government.

On appeal, Rahman argues that evidence from the basement line search should have been suppressed as it exceeded the scope of his consent. We agree. The investigators had already ruled out the basement as the origin of the fire when they conducted the line search. Their only purpose for conducting the search was to look for secondary and circumstantial evidence of arson, which exceeded the scope of Rahman's consent as it permitted them to look only for the origin and cause of the fire. Rahman also argues that there was insufficient evidence for the jury to find him guilty of giving a false statement to investigators. We agree with him that the fact that one of his computers was found at his home and did not contain business records was not sufficient to find him guilty of the charged false statement, and we remand for further proceedings consistent with this opinion.

I. BACKGROUND

At approximately 3:30 a.m. on a frigid January 19, 2010, a fire broke out in a Milwaukee building that housed four businesses on the first floor—the Black & White Café (“Café”), Grecian Delight (a restaurant), Cush Lounge, and Pizza Man—and ten apartments on the second floor. Emergency personnel responded about ten minutes later, but the five-alarm blaze consumed the building, causing the second floor of the building to collapse onto the first floor. At the request of a Milwaukee detective, Special Agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and certified fire inspector Rick Hankins arrived on the scene between 8 and 9 a.m. to document the scene and investigate the cause of the fire.

While the firefighters battled the fire, the building's business owners gathered at a nearby McDonald's, where they were interviewed and asked to consent to a search of their premises. At 8 a.m., Detective Elizabeth Wallich from the Milwaukee Police Department interviewed Feras Rahman, the owner of the Black & White Café, and presented him with a written consent form. The consent form that Rahman signed gave the investigators consent to search the Café “to determine the origin and cause of the fire that occurred on 1/19/10.”

Around 10 a.m. Wisconsin Deputy Fire Marshal Antonio Martinez interviewed Rahman. During the course of the interview, Rahman stated that he kept his safe and business records in the basement of the Café. He also mentioned that he owned a laptop that contained some of his business records, but he was not sure if the laptop was in the basement or on the first floor by the cash register. Although Rahman was not certain where the laptop was in the restaurant, he believed that it was still there.

On January 20, Hankins arrived early on the scene to begin investigating the cause of the fire, but the debris from the fire still made most of the building inaccessible. To determine how the fire started, Hankins sought surveillance videos from the businesses damaged in the fire as well as surveillance video from Chubby's Cheese Steaks, a business located across the street from the Café. Sometime after 5 p.m., Hankins saw Chubby's Cheese Steaks's surveillance video, which showed a brief illumination within the Café about 10 minutes before emergency personnel arrived. This video indicated to investigators that the fire originated in or above the Café; in other words, not in the basement. After seeing the video, around 8 p.m., Hankins decided to go down to the basement to retrieve the control mother board panel for the alarm system (“alarm box”) of the Café, “because [he] was interested in knowing what kind of data the alarm box might be able to offer ... and he wanted to preserve the alarm box for any additional water damage.” Hankins stated that alarm systems can give investigators the date and time the system detects the outbreak of a fire and that investigators wanted the alarm box to see what kind of information it contained that might shed light on the fire's cause and origin. According to Hankins, the alarm box was not suspected of causing the fire because neither it, nor the area around it, was damaged by the fire.

On January 21, fire investigators began excavating the Café, layer by layer, as carefully as possible with an excavator. At this point, investigators, including Hankins, had numerous theories as to what started the fire and believed that the fire started somewhere between the first and second floors of the Café. Hankins, for the first time, also fully examined the basement and observed that although the basement contained a significant amount of water, it was obvious to him that the fire did not start there. During his investigation of the basement, Hankins seized closed bank bags, a tray from a cash register, and a surveillance DVR.

On January 22, Hankins decided to again investigate the basement and to look at entry points people could use to access the building. As part of his investigation, Hankins examined a door between the Café and the Grecian Delight restaurant next door. On the Grecian Delight side, there was a dead bolt lock with a turn knob, which allowed anyone to enter the Café from the Grecian Delight. When Hankins tried the door, the deadbolt was locked, so he broke through and found some large items in front of it. Hankins also had the basement drained so that a group of investigators could walk across the basement performing a line search to look for clues. Based on interviews with Rahman, Hankins was looking for valuable items, including the laptop with the business records on it and a safe, which Rahman told investigators should be in the restaurant. According to Hankins, investigators often look for the remains of valuable items in the ashes of fires as their presence, or more importantly lack thereof, can be clues of criminality as thieves occasionally will commit arson to hide their burglary. After combing through the rubble, investigators found neither the safe nor the laptop.

On January 23, fire investigators were nearly finished excavating the Café, but still had not determined the exact cause and origin of the fire. They had a number of theories and needed a way to eliminate some of them. To help narrow the number of viable theories, investigators brought in Moon, an ignitable liquid detection canine, to confirm or eliminate the possibility that the fire was deliberately set. Moon alerted the investigators to the possible presence of an ignitable liquid present in several places on the first floor. To confirm the presence of ignitable liquid, investigators took samples and sent them to a laboratory to be tested. It was while Hankins was collecting samples that he smelled gasoline. According to him, since there was no reason for gasoline to be present in the Café, he and his investigators for the first time leaned towards arson as the reason for the fire. After these samples were collected, investigators seized the back door of the Café as well as the door to Rahman's office in the basement. On January 29, Hankins learned that the samples he sent to the laboratory were positive for gasoline.

Based on the positive test of gasoline, investigators focused their investigation on Rahman. In a surveillance video recorded the night of the fire, Rahman was seen leaving the Café with a large, white rectangular box. After a search warrant was executed at Rahman's home, agents found a white rectangular box containing a red laptop computer underneath Rahman's bed. The laptop did not contain business records, but investigators did find a Google Earth search of the two block area surrounding Rahman's restaurant. The government believed that Rahman was using the aerial shots of the neighborhood to search for an escape route.

Rahman's lawyer wrote the government suggesting that it should investigate Andres Karabelas, the owner of the Grecian Delight restaurant, as the culprit that set the fire. According to Rahman, Karabelas started having problems with his business and his personal life in 2008. Allegedly Karabelas had huge debts, mounting losses, and a $250,000 insurance policy. Rahman also argued that Karabelas's restaurant was struggling, that Karabelas could not make his payroll, and that he was late paying his suppliers.

As part of the investigatory process, investigators interviewed Karabelas regarding his actions on the night of the fire. Karabelas said that after closing up the restaurant, he went downstairs and locked the door that linked it to Cush, then, at 3:15...

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