U.S. v. Ihmoud, 05-3178.

• Decision Date: 21 July 2006
• Docket Number: No. 05-3270.,No. 05-3178.,No. 05-3522.,No. 05-3185.,05-3178.,05-3185.,05-3270.,05-3522.
• Citation: 454 F.3d 887
• Parties: UNITED STATES of America, Appellee, v. Walid IHMOUD, Appellant. United States of America, Appellee, v. Mohammad Almassri, Appellant. United States of America, Appellee, v. Charles D'ary, Appellant. United States of America, Appellee, v. Zeyad Abdeljabbar, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 887

454 F.3d 887

UNITED STATES of America, Appellee, v. Walid IHMOUD, Appellant.

United States of America, Appellee, v. Mohammad Almassri, Appellant.

United States of America, Appellee, v. Charles D'ary, Appellant.

United States of America, Appellee, v. Zeyad Abdeljabbar, Appellant.

No. 05-3178.

No. 05-3185.

No. 05-3270.

No. 05-3522.

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2006.

Filed: July 21, 2006.

Timothy Roellig, argued, Chicago, IL (Robert A. Novelle, Sr., on the brief), for appellant in 05-3178.

Anthony Cipriano, argued, St. Louis, MO (Sidney L. Siegfried, on the brief), for appellant in 05-3185 and 05-3270.

Adam J. Fein, argued, Clayton, MO (Scott Rosenblum and Mark W. Lyons, on the brief), for appellant in 05-3522.

John J. Ware, argued, Assistant U.S. Attorney, St. Louis, MO (Matthew T. Drake, on the brief), for appellee.

Before MURPHY, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

After a jury trial in district court,¹ Walid A. Ihmoud, Mohammad Almassri, Charles D'Ary, and Zeyad A. Abdeljabbar were convicted of numerous charges related to a series of building fires. They appeal. See 28 U.S.C. § 1291; 18 U.S.C § 3742. This court affirms.

I.

Abdeljabbar owned a strip mall in St. Louis, Missouri. He also co-owned a grocery store, Sterling's Marketplace, in the strip mall. In February 2000, a fire damaged the store. Abdeljabbar received $123,250 in insurance proceeds. Abdeljabbar then dissolved his partnership with the co-owner, and sold the property to a third party.

In August 2002, a fire damaged Quality Bargains, a store operated by Ihmoud and located at Abdeljabbar's strip mall. Ihmoud received $300,010 in insurance proceeds.

By October 2002, Abdeljabbar had opened three grocery stores under the name of St. Louis Supermarkets. Ihmoud and Abdeljabbar went into business together, opening a fourth St. Louis Supermarket where the Sterling's Marketplace had been (the "Broadway store"). There, they sold merchandise from Quality Bargains.

James Huddleston, an employee at the Broadway store, testified that Ihmoud asked him in January 2003 to burn the car of a jewelry-store owner whom Ihmoud suspected of vandalizing his car. James, with his brother William, poured gasoline on the vehicle but could not ignite it. Nevertheless, Ihmoud paid James $250 for the effort.

Jame's other brother, Eldgre, also worked for St. Louis Supermarkets. Eldgre testified that Abdeljabbar approached him in the spring of 2003 about burning the four St. Louis Supermarkets in exchange for about $31,000. Eldgre agreed, and recruited his nephew to help.

James testified that, in May 2003, Abdeljabbar asked him to come to a meeting. The meeting was attended by all four appellants—Abdeljabbar, D'Ary, Almassri, and Ihmoud. Abdeljabbar said that he wanted the four St. Louis Supermarkets to be burned, because they were losing money. Abdeljabbar wanted them burned at the same time, but before July 4. According to James, D'Ary suggested they be burned by the same method as the Quality Bargains fire. James was supposed to help D'Ary and Almassri burn the Broadway store. In exchange, James would be paid $3,000 to $5,000.

A few days later, Abdeljabbar told James to contact Ihmoud if he needed to know how to burn the Broadway store. Later, D'Ary informed James that he was going to use a white candle with a long wick to burn the Broadway store, because that is how he burned Quality Bargains.

On June 8, D'Ary set fire to the Broadway store, but firefighters responded and damage was minimal. Ihmoud instructed D'Ary, Almassri, and James to take merchandise off the shelves and break it near the location of the fire, to "increase his insurance money." Abdeljabbar and Ihmoud ultimately made a $1,205,000 insurance claim.

Later that month, Abdeljabbar asked James to burn Abdeljabbar's car. James, with his brother William, doused the car with gasoline and burned it. Abdeljabbar paid James $250, later collecting $21,000 in insurance payments.

On July 2, Eldgre and his nephew met Almassri at the Broadway store in order to burn it. They carried gasoline jugs to the roof. Almassri and Eldgre's nephew then began chopping holes in the roof. However, the three left the store without starting the fire, leaving the jugs there. According to Eldgre, they agreed to return later that night to start the fire, but they did not follow through.

The next day a maintenance worker discovered the jugs and the holes. His supervisor insisted that the police be called. The police arrived and opened an investigation.

On July 10, D'Ary again set fire to the Broadway store. Investigators seized videos from the store's surveillance system. James testified that D'Ary later told him that he started the fire in a location he thought would burn quickly. Ihmoud made a $250,000 insurance claim.

Jose Rodriguez, an employee of St. Louis Supermarkets, testified that in July, Abdeljabbar asked him to burn the South Grand store in exchange for $10,000. Abdeljabbar told Rodriguez he wanted the store burned to collect insurance money. Rodriguez, with a friend, went to the store on July 20. As they approached it, they changed their minds and went home.

The other two St. Louis Supermarkets burned that night. Investigators seized surveillance tapes from each store. Abdeljabbar filed insurance claims for each of these fires.

Eldgre was arrested after a police officer recognized him from the surveillance video from the July 3 burning of the Broadway store. He agreed to cooperate by wearing a recording device. On July 23, 2003, he met with Abdeljabbar, recording his statement that he would cut his throat if he said anything to anyone.

After a trial, the jury found all four defendants guilty of conspiracy to commit arson; Ihmoud and Abdeljabbar of mail fraud, arson, and arson in furtherance of mail fraud; D'ary of arson; and Abdeljabbar and Almassri of attempted arson.

II.

A.

Ihmoud argues there is insufficient evidence to convict him of arson in furtherance of mail fraud under 18 U.S.C. § 844(h)(1), which punishes anyone who "uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States."

Evaluating sufficiency, this court views the evidence most favorably to the Government, including all reasonable inferences from the evidence. See United States v. Drews, 877 F.2d 10, 13 (8th Cir.1989). This court reverses "only if the jury must have had a reasonable doubt about an essential element of the crime." United States v. McDougal, 137 F.3d 547, 553 (8th Cir.1998).

Ihmoud first contends that the evidence does not show that he "knew, on July 10, 2003, that an intentionally set fire was the means to commit the fraud on the insurance company." The record refutes this contention. James Huddleston testified that Ihmoud attended the May 2003 meeting where Abdeljabbar said he wanted all four stores burned because they were losing money. Later, Abdeljabbar told James that, if he needed to know anything about how to burn the Broadway store, he could contact Ihmoud. Because the fire was only partly successful, Ihmoud instructed D'Ary, Almassri, and James to take merchandise off the shelves and break it to "increase his insurance money." Abdeljabbar and Ihmoud then made a $1,205,000 insurance claim. The evidence supports the jury's finding that Ihmoud knew that the purpose of the arson was to defraud the insurance company.

Ihmoud also argues that there is insufficient evidence that he "used" fire within the meaning of the statute. Citing no authority, Ihmoud strongly implies that one "uses" fire only when one personally starts the fire.

This court has not interpreted the meaning of the word "uses" in the statute. However, relying on dictionary definitions, the Supreme Court concluded that the same term in another statute is "variously defined as `[t]o convert to one's service,' `to employ,' `to avail oneself of,' and `to carry out a purpose or action by means of.'" Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), quoting Smith v. United States, 508 U.S. 223, 228-29, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (citations and internal quotation marks omitted). Under the plain meaning of the word, therefore, one can "use" fire without actually starting it. See United States v. Ruiz, 105 F.3d 1492, 1501, 1503-04 (1st Cir.1997) (finding that two defendants "used" fire under 18 U.S.C. § 844(h)(1), although one of them merely "assisted [the other defendant] ... by providing access to the store and by failing to engage the alarm."). Ihmoud's participation in the May meeting, combined with his insurance claim, is sufficient to show that he "used" fire to carry out fraud.

B.

Ihmoud argues that the district court erred in admitting evidence that he hired James to burn the jewelry-store-owner's car. Ihmoud asserts that "there was no evidence that the Ihmoud car fire was part of a common scheme or plan related to or having any nexus to the charged offenses."

The district court has broad discretion to admit evidence of other crimes. United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005), citing United States v. Mays, 822 F.2d 793, 797 (8th Cir.1987). This court reviews the district court's ruling for abuse of discretion and will "reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." United States v. Howard, 235 F.3d 366, 372 (8th Cir.2000), quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.1998).

Under Rule 404(b), evidence of a prior crime, though inadmissible to show that a person acted in conformity with the prior act, may be admissible for other purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b); see also United States v. Burke, 425 F.3d 400, 409 (7th Cir.2005) ("While...