U.S. v. Fakhoury
| Decision Date | 26 May 1987 |
| Docket Number | No. 86-2583,86-2583 |
| Citation | 819 F.2d 1415 |
| Parties | 23 Fed. R. Evid. Serv. 42 UNITED STATES of America, Plaintiff-Appellee, v. Salim FAKHOURY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Philip C. Parenti, Philip C. Parenti, Ltd., Chicago, Ill., for defendant-appellant.
Therese Cesar Garza, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUDAHY, RIPPLE, and MANION, Circuit Judges.
Appellant Salim Fakhoury was charged with one count of attempted arson in violation of 18 U.S.C. Sec. 844(i) and three counts of mail fraud in violation of 18 U.S.C. Sec. 1341. After a seven-day trial, the jury found Mr. Fakhoury guilty on all counts charged in the indictment. The appellant challenges his convictions on the grounds that: 1) there was insufficient evidence to support the convictions, 2) evidence of prior misconduct was improperly admitted, 3) he received ineffective assistance of counsel, and 4) his right to confront an adverse witness was violated because the government did not disclose the identity of a confidential informant. For the reasons set forth in this opinion, we affirm the appellant's convictions.
The appellant and his father, Jamel Fakhoury, bought Casa Blanca Liquors & Groceries located in Chicago, Illinois in June 1982 for approximately $108,000. In August 1984, the Federal Bureau of Investigation (FBI) received a tip from an informant that an arson was being planned for the grocery store. Responding to this information, an FBI agent posed as an arsonist and, in a recorded conversation with the appellant, offered to burn the grocery store. The appellant declined the agent's offer. The FBI then conducted a surveillance of the store on September 23 and 24.
On September 25, a fire was set in the store. The fire fighters who arrived at the store testified that there was no indication of a forced entry onto the premises and that the store doors and windows were secure. The store's alarm system sounded when the fire fighters entered the store. Testimony indicated that the alarm system allowed only thirty seconds to turn off the alarm after the door contacts were broken.
The fire department officers discovered that a gasoline-type fuel coated the store, including the store's merchandise and records. The store's fuse box and wiring system had been "hot wired" so that a steady electrical current could continue uninterrupted to an outlet located behind the meat counter. Two orange extension cords were connected to the outlet and led to cans of gasoline placed in two separate areas of the store. The store was not destroyed because it was not vented and consequently there was an insufficient amount of oxygen to fuel the flames. In fact, the fire fighters had to vent the store from the roof before they opened the ground level doors to avoid an explosion. Fire investigators determined that the fire had been started intentionally.
The government introduced evidence to demonstrate the appellant's motive and opportunity to commit the attempted arson. The appellant and Carl Maniscalco, the appellant's brother-in-law, shared the only set of keys to the store. Mr. Maniscalco testified that the keys for the store were in his possession on the night of the fire. However, the appellant stated, in an interview with the FBI on the evening of September 25, that Mr. Maniscalco had dropped off the keys at his home at about 10:30 p.m. on September 24. The appellant possessed experience working with electrical equipment because he had been employed at Danly Machine Company as an electrical assembler for several years. Although Mr. Maniscalco testified otherwise, one of the appellant's neighbors testified that she saw Mr. Maniscalco deliver a package of orange electrical cords to the appellant's home in early September 1984.
The government also introduced evidence of both the store's and the appellant's deteriorating financial condition to demonstrate the appellant's motive to commit arson. The government offered evidence of a substantial number of insufficient checks drawn on the store's account, declining purchases from suppliers and reduced food stamp redemptions (both representing fewer sales), and $97,000 of debts owed to creditors. In addition, city health inspectors testified that the store's condition violated health code standards because the store's walls were unclean and post-dated food remained on the shelves. Further, various coupon redemption centers were seeking to recover money that they had remitted to the appellant for coupons he had redeemed on the ground that he submitted far more coupons than could have been used by the store's customers. Finally, the appellant's individual bank account declined from an initial balance of $18,972.29 in January 1984 to a negative balance of $410.66 in September 1984. The government also submitted evidence showing that on September 4, 1984, a $40,000 loss of earnings clause was added to the store's $150,000 insurance policy.
After the fire, the appellant sent three separate proof-of-loss statements to his insurance company. In all three statements, the appellant certified that he had not caused the fire. In the first statement, the appellant claimed estimated losses of $97,033.66. An adjuster from an independent adjustment firm handling the claim on behalf of the insurance company estimated that the appellant's claim was overstated by at least two-hundred percent. The appellant's second claim was identical to the first. In his third claim, the appellant claimed the same amount of losses but certified that they were his actual, rather than estimated, losses.
Appellant contends that no rational trier of fact could have found him guilty beyond a reasonable doubt of attempted arson or mail fraud. In a challenge based on the sufficiency of the evidence, it is well-settled that this court will affirm the conviction "if 'after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Gabriel, 810 F.2d 627, 633 (7th Cir.1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original). "Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Lundy, 809 F.2d 392, 396 (7th Cir.1987) (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971)). The evidence, viewed in the light most favorable to the government, was sufficient to allow the jury to find the appellant guilty beyond a reasonable doubt of both attempted arson and mail fraud. We will consider in turn the sufficiency of the evidence for each offense.
Appellant was convicted of violating 18 U.S.C. Sec. 844(i) which provides in pertinent part:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both....
The appellant contends that the evidence presented by the government was insufficient because there were no eyewitnesses to the attempted arson, no fingerprints linking the appellant to the crime, and the evidence presented by the government was largely circumstantial. Appellant's Br. at 18. However, we have held that circumstantial evidence is as relevant as direct evidence in establishing a defendant's guilt or innocence. United States v. Bradshaw, 719 F.2d 907, 921 (7th Cir.1983). The government presented sufficient evidence that the fire was started intentionally. It also presented sufficient evidence of the appellant's motive, preparation and opportunity to set the fire.
Because the fire did not cause much damage to the store, the fire investigators could readily determine the cause of the fire and establish that it was started intentionally. The evidence submitted at trial showed that the outlet was "hot wired" to provide a steady supply of electricity and that the store's merchandise and records were coated with gasoline. To show the appellant's motive to attempt arson, the government introduced evidence of the appellant's mounting financial difficulties, including reduced sales, actions by coupon redemption centers to recover payments made to the appellant for redeemed coupons, and debts owed to suppliers and other creditors.
The government's evidence further showed the appellant's opportunity to set the fire. Evidence presented by the government at trial indicated that the appellant was in possession of the sole set of keys to the store on the night of the fire and that appellant's cousin delivered orange electrical cords, similar to those used to "hot wire" the outlet, to the appellant a few weeks before the fire. Further, evidence established that the appellant had experience working with electrical equipment and that the appellant was familiar with the alarm system so that he could enter the store and turn off the alarm before it sounded.
As stated in Lundy:
This evidence is not overwhelming. But it is the jury's task to weigh the evidence and the credibility of witnesses.... We find that the evidence as a whole, indicating, inter alia, motive, plan, preparation, opportunity and absence of accident, is sufficient to sustain the conviction of arson.
Appellant was convicted of three counts of mail fraud under 18 U.S.C. Sec. 1341 which provides in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to...
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