U.S. v. Gabriel

• Decision Date: 15 January 1987
• Docket Number: 86-1290,No. 86-1289,86-1289
• Citation: 810 F.2d 627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gabriel GABRIEL and Badie Abdulahad, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 627

810 F.2d 627

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel GABRIEL and Badie Abdulahad, Defendants-Appellants.

No. 86-1289, 86-1290.

United States Court of Appeals Seventh Circuit.

Argued Sept. 15, 1986.

Decided Jan. 15, 1987.

Elliot M. Samuels, Chicago, Ill., for defendants-appellants.

James M. Conway, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD, Jr., COFFEY, and RIPPLE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendants-appellants Gabriel Gabriel and Badie Abdulahad were tried jointly before a jury on charges of attempted arson, conspiracy, and solicitation. Both defendants were convicted of conspiring to commit arson and to solicit another to commit arson, in violation of 18 U.S.C. Sec. 371, and of solicitation of another to commit arson, in violation of 18 U.S.C. Sec. 373. In addition, Gabriel Gabriel was convicted of attempted arson, in violation of 18 U.S.C. Sec. 844(i), and of aiding and abetting solicitation, in violation of 18 U.S.C. Secs. 2 and 373. ¹ Defendants appeal their convictions, alleging that the evidence of their intent to conspire regarding, solicit, and attempt arson is insufficient to support those convictions. Badie Abdulahad further alleges that the evidence was insufficient to establish that he was not entrapped with respect to the offenses charged. We find sufficient evidence of intent and that Abdulahad is precluded from asserting the defense of entrapment. We therefore sustain the convictions of both defendants.

I. FACTUAL BACKGROUND

Since the sufficiency of the evidence is questioned by the defendants in various respects, we review the facts in more than usual detail. In June 1985, Daniel Callahan, Special Agent with the Illinois Department of State Police, gave an undercover phone number to a confidential informant and asked to have it circulated to a person named Gabriel. The informant had told Callahan that "Gabriel" was looking for someone to burn his store. Callahan also asked the informant to circulate information that the number could be that of an arsonist available for hire.

Callahan received a phone call on this line on June 27, 1985, from a person named "Gabe," who indicated that he understood Callahan might be able to do something for him regarding his store. When asked by Callahan if that meant burning his store, Gabe replied "yes." Gabe also asked for more insurance coverage for his store. Gabe gave his phone number, which was traced by Callahan to Gabriel's Groceries in Chicago, Illinois.

Callahan contacted the federal Bureau of Alcohol, Tobacco and Firearms (ATF) for assistance in the investigation. Callahan was assigned the role of arsonist "Dan Kelly." ATF Agent Art Chavarria was to work with Callahan, a.k.a. Kelly, during the investigation and was to play the part of insurance broker "Art Martinez." At this time the agents agreed that they would electronically record all future meetings and phone calls with the subjects of the investigation. The following discussion of the facts of this case is gleaned for the most part from transcripts of recorded conversations.

On July 1, 1985, Callahan called Gabriel to inform him that Callahan had found someone to provide him with insurance. Gabriel set an appointment for the following morning to meet with Callahan and the insurance agent. In this meeting at Gabriel's Groceries, Callahan, Chavarria and Gabriel discussed insurance coverage and the finances of the store. Gabriel told them that the insurance policy for his small neighborhood grocery had been cancelled. While Chavarria was surveying the layout of the store, Gabriel asked Callahan if he, Callahan, could be trusted and whether Chavarria knew "everything." Gabriel asked if Callahan was going to "do it" through "electric" and expressed a concern that "fire department detectives could account for gasoline." Gabriel noted that there were all singles in the apartments above his grocery and suggested they could "blow [sic] whole building." He then withdrew this suggestion. Gabriel asked how long it would be until he received the insurance money. Callahan guessed that it would be about three weeks. Gabriel said that after he got the money he would go somewhere, possibly to Texas or California.

Callahan and Gabriel also discussed payment. Callahan asked Gabriel for "something ahead of time." Gabriel responded: "When I get the money. I'm broke, you see, that's why I'm gonna do this." Callahan asked for twenty percent of the insurance proceeds; Gabriel said thirteen percent. Callahan responded with a figure of fifteen percent, and Gabriel replied that he could give Callahan another business, a restaurant on Clark Street. Gabriel suggested that Callahan should call his friend Badie at this business and say that Gabriel asked him to call. Gabriel wrote down the phone number, which Callahan later checked and found was listed to the Family Golden Chicken Restaurant.

On July 3, 1985, Callahan called Gabriel to inquire about contacting Badie. Gabriel suggested Callahan call Badie and tell him that Gabriel said to call him, and then call Gabriel back. Callahan then called Badie, who acknowledged that he had talked with Gabriel. Badie asked Callahan to come to his restaurant that afternoon. Callahan called Gabriel to tell him he had contacted Badie and would meet with him, and that Badie wanted Gabriel to call him.

That afternoon, Callahan went to Badie Abdulahad's Family Golden Chicken Restaurant. Abdulahad said that he had talked with Gabriel and told Callahan that his insurance would expire August 1, 1985. Callahan asked Abdulahad if he wanted "it" done before August 1, and Abdulahad expressed concern that the insurance company would know that he did it on purpose. Abdulahad suggested that Callahan start the fire through "electric," and said that he did not care how or where the fire started in the building because "nobody lives upstairs." He also said that he did not want to hurt anyone.

Callahan asked to be paid up front. Abdulahad replied that he had nothing to give him. Callahan asked for twenty percent of the insurance proceeds; Abdulahad said that was too much, and asked if this would include costs such as obtaining a lawyer to get the money after the fire. Abdulahad asked if he should change his insurance or get a new insurance policy, but Callahan assured him that it was not necessary because his policy had not terminated as Gabriel's had. Abdulahad agreed that he should keep the same insurance.

Callahan told Abdulahad that the insurance company would not give them any trouble on collecting the claim if the fire looked like an accident. Abdulahad offered to leave Chicago or stage a car accident with his wife and be in the hospital at the time of the fire. Callahan told Abdulahad that this plan was too complicated, but that it was up to Abdulahad as to what he wanted to do--whether to go on a trip or leave Chicago.

Callahan and Abdulahad also discussed the logistics of starting the fire. Abdulahad expressed misgivings about using gasoline because he believed the smell to be easily detectable, asked Callahan to come back the following day for "the right idea about the right way" to start the fire, agreed with Callahan that the kitchen would be a better location for the fire than the restaurant proper, and was concerned that there be enough damage to receive insurance proceeds. Callahan arranged to meet with Abdulahad again at his restaurant the following Friday. Abdulahad stated that if Callahan had to contact him in the meantime, he should call Gabriel.

The next Friday, July 5, Callahan met Abdulahad at the restaurant. Abdulahad was concerned that he would have problems recovering from the insurance company. Callahan responded by telling him that the guy (Chavarria) handling Gabriel's insurance would also help work out any problems with the insurance company. Abdulahad was also concerned that the police might catch Callahan and that the fire might fizzle out. Callahan repeatedly asked whether Abdulahad wanted him to set the fire, and Abdulahad reiterated that he did and that he would not back out. The two again discussed Callahan's percentage. Abdulahad said that Gabriel had told him Callahan would be getting thirteen percent from Gabriel. Abdulahad said Callahan should get thirteen percent from him as well, stating "[m]ine and [Gabriel's business] same."

On July 8, 1985, Chavarria went to Gabriel's Groceries and gave Gabriel a phony $95,000 insurance policy, for which Gabriel paid a $325 premium. Chavarria had earlier told Gabriel that when Gabriel paid the premium, the insurance would take effect and he would call Callahan. Chavarria told Gabriel to make sure the business records were out of the store before the fire. Gabriel asked who would be expecting or getting the thirteen percent after the fire, and Chavarria said that the fee was between Callahan and Gabriel, but that Callahan would take care of him.

That evening, Callahan met with Gabriel at Gabriel's Groceries. Callahan asked if he could set both fires the following Wednesday night. Gabriel wanted the fires to be put off, however, so he could ensure that his records reflected current receipts. Gabriel was worried that the insurance company would not believe that his business was worth $90,000. Gabriel said he did not want to be in trouble. The two discussed specifics of how the fire would be set. Gabriel was concerned about people seeing the fire being set. Callahan repeatedly asked for a spare key to the grocery, but Gabriel refused and told Callahan he would leave the door open. Gabriel expressed a concern that he would be in trouble if Callahan were caught with a key. Gabriel suggested that it would be better to have Callahan just break a window and pour gasoline into the store than to give Callahan a key. Callahan again asked to set the fire Wednesday. Gabriel resisted at first, saying that...