U.S. v. El-Zoubi

• Decision Date: 04 June 1993
• Docket Number: No. 92-1128,D,EL-ZOUB,92-1128
• Citation: 993 F.2d 442
• Parties: 39 Fed. R. Evid. Serv. 160 UNITED STATES of America, Plaintiff-Appellee, v. Abdallah M.efendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 442

993 F.2d 442

39 Fed. R. Evid. Serv. 160

UNITED STATES of America, Plaintiff-Appellee, v. Abdallah M. EL-ZOUBI, Defendant-Appellant.

No. 92-1128.

United States Court of Appeals Fifth Circuit.

June 4, 1993.

Gerhard Kleinschmidt, Fort Worth, TX, for defendant-appellant.

Christopher A. Curtis, John P. Bradford, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Fort Worth, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, DAVIS and SMITH, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Abdallah M. El-Zoubi (El-Zoubi) was charged in a superseding indictment with conspiracy, mail fraud, and arson, in violation of 18 U.S.C. §§ 371, 1341, 844(i), and 2, respectively. After a jury trial, he was convicted on all counts. On the arson count he received a sentence of 120 months of imprisonment, to be followed by five years of supervised release. His sentences on the conspiracy and mail fraud counts run concurrently with his arson sentence, and call for 60 months of imprisonment, to be followed by three years of supervised release. El-Zoubi appeals his conviction and sentence. We affirm his conviction and his sentence.

I.

In May of 1991 El-Zoubi purchased the Almadafa International Market, also known as the Holy Land Market (the market), in Arlington, Texas. The next month, after obtaining fire insurance for the market, El-Zoubi paid his 20 year old nephew, Adel Ahmad Saliem Alzoubi (Adel), to burn it down. The fire occurred around 9:30 p.m. on June 14. A trail of footprints burned into the market's tile floor led fire fighters to Adel's body. Predictably, examiners determined the cause of death to be smoke inhalation, carbon monoxide poisoning, and extensive burns. The fire caused about $200,000 of damage to the strip mall in which the market was located.

II.

We initially consider El-Zoubi's conviction. First, he argues that the evidence was insufficient to support his conviction. Second, he contends that the trial court erroneously admitted hearsay testimony offered by the government. Third, he claims that comments made by prosecutors warranted a mistrial. Finally, El-Zoubi argues that he received ineffective assistance of counsel. We consider these arguments in turn.

A.

El-Zoubi first challenges the sufficiency of the evidence supporting his conviction. We review the evidence in the light most favorable to the verdict. United States v. Williams, 985 F.2d 749, 753 (5th Cir.1993). And we ordinarily affirm if a rational trier of fact could have found that the evidence establishes the essential elements of the offense beyond a reasonable doubt. Williams, 985 F.2d at 753. However, because El-Zoubi failed to move for judgment of acquittal at the close of the evidence, we may set aside the conviction only if affirmance would result in a "manifest miscarriage of justice." United States v. Singer, 970 F.2d 1414, 1418 (5th Cir.1992). Under this standard, we may reverse El-Zoubi's conviction only if "the record is devoid of evidence pointing to guilt." Singer, 970 F.2d at 1418.

El-Zoubi's conviction for conspiracy under 18 U.S.C. § 371, required the government to prove beyond a reasonable doubt that (1) El-Zoubi and Adel agreed to pursue an unlawful objective together; (2) El-Zoubi voluntarily agreed to join the conspiracy; and (3) that either El-Zoubi or Adel performed an overt act to further the objectives of the conspiracy. United States v. Parekh, 926 F.2d 402, 406 (5th Cir.1991). El-Zoubi's mail fraud conviction under 18 U.S.C. § 1341 required proof beyond a reasonable doubt of (1) a scheme to defraud; and (2) El-Zoubi's use of the mails for the purpose of executing the scheme. United States v. Church, 888 F.2d 20, 23 (5th Cir.1989). A conviction for arson under 18 U.S.C. § 844(i) requires proof beyond a reasonable doubt that (1) the defendant maliciously damaged or destroyed a building; (2) he did so by means of fire; and (3) the building was being used in an activity affecting interstate commerce. United States v. Triplett, 922 F.2d 1174, 1177 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991). Accomplice liability under 18 U.S.C. § 2 requires a showing that El-Zoubi (1) acted in a way that contributed to the execution of the criminal activity; and (2) intended to aid in its commission. Triplett, 922 F.2d at 1177-78.

We summarize below the evidence on which the government relies to support El-Zoubi's conviction on the counts referred to above. El-Zoubi was in dire financial straits: his checking account at the Federal Savings Banc had just been closed because of excessive insufficient funds checks; he owed over $500 on a Visa credit card that had just been cancelled; he had been denied a bank loan; he had to borrow $300 to cover a bad check he had written; and his wife had just filed for divorce. Moreover, the business was failing: lease payments had fallen behind by $6,625; inventory was low; and business was poor--the day of the fire, the market made only a four dollar sale.

On June 7, El-Zoubi applied for $50,000 of fire insurance, representing that sales at the market amounted to $300 a day. In the following days, he asked his insurance agent three times if the application had been approved. Two days before the fire, the application was approved. The next day, El-Zoubi paid the premium, and sought assurances that any insurance proceeds would be paid to him. That day El-Zoubi told another shop keeper in the same strip shopping center, "we got our insurance."

The day of the fire, El-Zoubi asked Rami Ghanem, an acquaintance whose business had burned, whether he had any difficulties with fire investigators or the insurance and also told him, referring to the market, "I'm going to knock it down today." The fire was reported at 9:22 p.m. The fire fighters found all doors locked, even though the business was scheduled to be open until 10:00 p.m. Inside they found Adel's body. Investigators found that the fire was intentionally set and of an incendiary nature. In Adel's truck, investigators found a $5,000 check to Adel, signed by El-Zoubi and postdated to June 30. At the time of the fire, the balance in El-Zoubi's account was $261.16.

The fire caused $200,000 of damage to the shopping center structure. The market and neighboring businesses were closed. El-Zoubi concedes that the market was used in an activity affecting interstate commerce. This evidence amply supports the jury's apparent conclusion that El-Zoubi paid Adel to burn the market in order to fraudulently collect fire insurance proceeds, and that he used the mails to further this scheme.

B.

El-Zoubi next argues that the district court erroneously admitted testimony about a conversation between Adel and Salif Alahmad (Alahmad), who owns a photo business in the strip shopping center that housed the market. According to Alahmad, four days before the fire, Adel said that he was "sick and tired of [the market]" and was going to "burn it down and get out of Arlington." The government concedes that the statement constituted hearsay, but argues that it was admissible under Fed.R.Evid. 801(d)(2)(E), the coconspirator exception to the hearsay rule.

In order to fit the coconspirator exception, a statement must have been made (1) by a coconspirator of a party, (2) during the course of the conspiracy, and (3) in furtherance of the conspiracy. United States v. McConnell, 988 F.2d 530 (5th Cir.1993). Although the evidence supports a finding that Adel and El-Zoubi were coconspirators, it does not support a conclusion that Adel's statement was made in furtherance of the conspiracy. The government argues that Adel's statement was made in furtherance of the conspiracy because it identified his role in the conspiracy. "Ordinarily, a statement that identifies the role of one coconspirator to another is in furtherance of the conspiracy." United States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir.1989) (quotations omitted). However "mere conversation between conspirators" does not fit within this exception. McConnell, 988 F.2d at 533. The statement in question was not made to a coconspirator. Moreover, the record does not allow the inference that Adel thought the conspiracy would be more likely to succeed if Alahmad knew of Adel's intent to burn the market. Therefore it was error to admit Adel's statement under the coconspirator exception to the hearsay rule.

Nevertheless, the error was harmless. In determining whether the admission of hearsay evidence was harmless, we must consider the other evidence in the case, and then decide if the inadmissible evidence actually contributed to the jury's verdict. United States v. Evans, 950 F.2d 187, 191 (5th Cir.1991). We will find such testimony harmful and reverse a conviction only if it had a "substantial impact" on the jury's verdict. Evans, 950 F.2d at 191. The statement is probative of Adel's intent to burn down the market. Yet, as we have already explained, the physical evidence overwhelmingly established this fact. Thus, viewing the evidence as a whole, we conclude that the statement had no effect on the verdict. Evans, 950 F.2d at 191.

C.

El-Zoubi next argues that the district court should have declared a mistrial because the prosecutor made inappropriate remarks at trial. Because El-Zoubi did not object to any of these comments, we review for plain error. We ask "whether the prosecutor's comments, taken as a whole in the context of the entire case, substantially prejudiced defendant's rights." United States v. Montemayor, 684 F.2d 1118, 1124 (5th Cir.1982). We recognize plain error "only if the error is so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings and would result in a miscarriage of justice." Montemayor, 684 F.2d at 1124.

El-Zoubi first challenges the prosecutor's statement that the conspiracy and mail fraud counts...