United States v. Feras Rahman , 805 F.3d 822 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1586
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERAS RAHMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-CR-103 — Rudolph T. Randa, Judge.
____________________
ARGUED JANUARY 22, 2014 — DECIDED NOVEMBER 9, 2015
____________________
Before WOOD, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
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 restau-
rant and ten apartments burned to the ground. In hopes of
discovering how the fire started, fire investigators asked Fe-
ras Rahman to sign a consent form that allowed investiga-
tors to look for the “origin and cause” of the fire. While in-
2 No. 13-1586
vestigating 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 ev-
idence, 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 base-
ment line search should have been suppressed as it exceeded
the scope of his consent. We agree. The investigators had al-
ready ruled out the basement as the origin of the fire when
they conducted the line search. Their only purpose for con-
ducting the search was to look for secondary and circum-
stantial 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 re-
mand 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 (“Ca-
fé”), Grecian Delight (a restaurant), Cush Lounge, and Pizza
No. 13-1586 3
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 Al-
cohol, Tobacco, Firearms, and Explosives (“ATF”) and certi-
fied fire inspector Rick Hankins arrived on the scene be-
tween 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 busi-
ness 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 in-
terview, 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 rec-
ords, 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 de-
4 No. 13-1586
termine 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, “be-
cause [he] was interested in knowing what kind of data the
alarm box might be able to offer … and he wanted to pre-
serve 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 excava-
tor. At this point, investigators, including Hankins, had nu-
merous 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 ex-
amined the basement and observed that although the base-
ment contained a significant amount of water, it was obvi-
ous to him that the fire did not start there. During his inves-
No. 13-1586 5
tigation 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 ac-
cess the building. As part of his investigation, Hankins ex-
amined 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 inves-
tigators 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 ex-
cavating 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 nar-
row 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
6 No. 13-1586
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 gaso-
line. According to him, since there was no reason for gaso-
line to be present in the Café, he and his investigators for the
first time leaned towards arson as the reason for the fire. Af-
ter 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 fo-
cused 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 war-
rant was executed at Rahman’s home, agents found a white
rectangular box containing a red laptop computer under-
neath 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 res-
taurant was struggling, that Karabelas could not make his
payroll, and that he was late paying his suppliers.
No. 13-1586 7
As part of the investigatory process, investigators inter-
viewed 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 a.m., left through the front door with his two
employees. He described the door between the Grecian De-
light and the Café as having a deadbolt lock and said it was
secured by a padlock to which he did not have the key.
Upon the conclusion of its investigation, the government
charged Rahman with arson of a building resulting in injury
(Count One), mail fraud (Count Two), arson to commit mail
fraud (Count Three), and making false statements (Counts
Four and Five) in violation of 18 U.S.C. §§ 844(i), 844(h)(1),
1001, 1341, and 2. Rahman filed a pretrial motion to suppress
evidence obtained during searches of the fire scene, alleging
that investigators exceeded the scope of his consent. The
magistrate judge recommended denying the motion and the
district court adopted the recommendation.
At trial the government argued that while Rahman’s res-
taurant was profitable, business had declined since the
summer and that Rahman wanted to pursue other business
opportunities, but that he could not because he was commit-
ted to running the Café. Under the government’s theory the
only way out of running the Café was to light the fire and
then collect $102,000 in insurance proceeds which he could
then use to fund other business opportunities. The govern-
ment also argued Rahman had the opportunity to commit
arson in that he had a key to the restaurant and knew the
alarm code. The defense’s theory was that Karabelas was re-
sponsible and could have entered the Café through the
basement door, gone up the steps, spread the gasoline and
8 No. 13-1586
thrown the match, then ran out, returned to the Grecian De-
light, closed the basement door and covered it with some
materials, and left.
After a two-week trial, Rahman was convicted of one
count of making a false statement concerning the laptop
with business records on it (Count Four). According to the
government, Rahman lied when he told them that his laptop
was at the Café because he knew it was located at his home.
Although Rahman was convicted of making a false state-
ment, he was acquitted on the other counts. Rahman then
filed a motion for judgment of acquittal or, in the alternative,
for a new trial, but the motion was denied by the district
court.
At sentencing, the government asked the court to consid-
er Rahman’s acquitted conduct of arson, and the district
court stated that it was willing to do so if the government
established the conduct by a preponderance of the evidence.
After conducting two sentencing hearings, listening to ar-
guments, and considering the government’s proposed find-
ings of fact, the court concluded that Rahman was responsi-
ble for the arson and sentenced him to 30 months’ impris-
onment, but allowed him to remain free pending the result
of this appeal. Rahman now appeals the district court’s order
denying his motion to suppress the evidence obtained dur-
ing a search of the fire scene, the denial of his motion for
judgment of acquittal, and his sentence.
II. ANALYSIS
A. Motion to Suppress Should Have Been Granted
When reviewing a denial of a motion to suppress, we re-
view the district court’s factual findings for clear error and
No. 13-1586 9
its legal conclusions de novo. United States v. Fields, 371 F.3d
910, 914 (7th Cir. 2004).
1. Investigators Committed a Trespass
Rahman argues that the district court should have grant-
ed his motion to suppress evidence collected during numer-
ous searches of the Café’s basement as they violated the
Fourth Amendment. Under the Fourth Amendment, “[t]he
right of the people to be secure in their persons, houses, pa-
pers, and effects, against unreasonable searches and sei-
zures, shall not be violated.” U.S. Const. amend. IV; Florida v.
Jardines, 133 S. Ct. 1409, 1414 (2013). The text of the Fourth
Amendment is closely connected to property, and for most
of our country’s history, Fourth Amendment jurisprudence
was tied to common-law trespass. See United States v. Jones,
132 S. Ct. 945, 949 (2012). However, during the latter half of
the twentieth century, this court, following the Supreme
Court’s example, expanded Fourth Amendment protections
and deviated from an approach that was exclusively proper-
ty-based. Id. at 949-50. In Katz v. United States, 389 U.S. 347
(1967), the Court was asked to decide whether a Fourth
Amendment violation occurred when an eavesdropping de-
vice was attached to a public telephone booth. In reaching its
conclusion that a violation occurred, the Court said that “the
Fourth Amendment protects people, not places.” Id. at 351.
After Katz, courts around the country focused on whether a
person’s “reasonable expectation of privacy” was violated to
determine when a Fourth Amendment violation occurred.
See Jones, 132 S. Ct. at 950. Although the Katz reasonable ex-
pectation test was the predominant test that courts used, the
common-law trespass theory was still available to defend-
ants. Id. at 952 (stating that the Katz test was added as an al-
10 No. 13-1586
ternative test to the common-law trespass test and was not
designed to replace it). It is under this trespass theory on
appeal that Rahman argues the government violated his
Fourth Amendment rights, and we agree.
Rahman did not argue that his rights were violated un-
der a common-law trespass theory before the district court,
and under normal circumstances we might consider his ar-
gument forfeited since the argument was available to him at
the time of the search. However, because the government
did not argue that Rahman forfeited this particular argu-
ment and addressed it in its appellate brief, we may reach
the merits of Rahman’s argument under the “waived waiv-
er” doctrine. See United States v. Prado, 743 F.3d 248, 251 (7th
Cir. 2014) (stating that the defendant’s forfeiture of his appel-
late argument was absolved by the government’s failure to
recognize the forfeiture and its response on the merits to de-
fendant’s argument). After careful review, we conclude that
the fire investigators’ search of the Café’s basement violated
Rahman’s Fourth Amendment rights, and that certain pieces
of evidence collected in the basement as a result of the search
should have been suppressed.
Under the common-law trespass theory, a violation oc-
curs when government officials, without a warrant: (1) phys-
ically intrude (2) on a constitutionally protected area (3) for
the purposes of obtaining information, and (4) an exception
to the warrant requirement does not apply. See Jones, 132 S.
Ct. at 949-52. There is no doubt that investigators physically
intruded upon Rahman’s restaurant and that the restaurant
is a constitutionally protected area. See Michigan v. Tyler, 436
U.S. 499, 508 (1978) (applying Fourth Amendment protection
to commercial property and stating that a warrant was re-
No. 13-1586 11
quired to search the defendant’s furniture store); see also See
v. City of Seattle, 387 U.S. 541, 543 (1967) (stating that “[t]he
businessman, like the occupant of a residence, has a constitu-
tional right to go about his business free from unreasonable
official entries upon his private commercial property”). And
neither party disputes that the investigators were on Rah-
man’s property to gather information. The only remaining
question as to whether the investigators’ search violated the
Fourth Amendment is whether an exception to the warrant
requirement applies.
2. Investigators Exceeded Scope of Rahman’s Con-
sent
The government argues that the search did not violate
Rahman’s Fourth Amendment rights because Rahman gave
written consent to all searches of the Café’s basement when
he signed a form giving his consent to search the Café “to
determine the origin and cause of the fire that occurred on
1/19/10.” Because a person may voluntarily waive his Fourth
Amendment rights, no warrant is required where the de-
fendant consents to a search. United States v. Matlock, 415 U.S.
164, 171 (1974); United States v. James, 571 F.3d 707, 713 (7th
Cir. 2009). Rahman, however, maintains that his written con-
sent to search for the fire’s “origin and cause” was just that—
a search to determine the fire’s origin and cause—and that it
did not include consent to search for secondary and circum-
stantial evidence that could point to criminality, such as col-
lecting evidence from the bank bags, his business receipts,
and the like.
“The scope of a search is generally defined by its ex-
pressed object,” Florida v. Jimeno, 500 U.S. 248, 251 (1991),
and the scope of the investigators’ search cannot exceed the
12 No. 13-1586
scope of a defendant’s consent, see United States v. Long, 425
F.3d 482, 486 (7th Cir. 1995). In determining the scope of a
defendant’s consent, we apply an objectively reasonable
standard. Jimeno, 500 U.S. at 251. Whether a search remained
within the boundaries of consent is a factual question that is
determined by the totality of the circumstances. Long, 425
F.3d at 486; United States v. Wesela, 223 F.3d 656, 661 (7th Cir.
2000).
Rahman’s consent to search the Café for the “origin and
cause” of the fire did not encompass a search for secondary
and circumstantial evidence of arson. Rahman argues that
the term “origin and cause” is a legal term of art that carries
a precise definition that is limited in nature, as opposed to
the broader meaning that the government would like us to
adopt, and that it was in that limited context that he gave
consent. The government, on the other hand, contends that
arson can be a cause of fire and that an objectively reasona-
ble person, when asked if fire investigators could search for
“origin and cause” of the fire, would assume that the officers
would be looking for arson. There is some support for the
government’s argument. See McDonald v. Vill. of Winnetka, 371
F.3d 992, 997 (7th Cir. 2004) (“The cause of any fire may fall
into one of three broad categories: accidental, incendiary [in-
tentionally set fire] and undetermined.”). But if we look to
guidance from the Supreme Court, the issue becomes a little
clearer.
In Michigan v. Clifford, the Supreme Court was asked to
determine whether evidence should be suppressed after it
was collected by fire investigators without a warrant. 464
U.S. 287 (1984). The fire in that case began in the early morn-
ing hours and was extinguished a few hours later. Id. at 290.
No. 13-1586 13
While the fire investigators waited for water to be pumped
out of the house, they found a fuel can in the home’s drive-
way, seized it, and marked it as evidence. Id. After the water
was pumped out of the basement, the investigators first
searched the basement and quickly confirmed that the fire
originated in the basement beneath the basement stairway.
Id. The investigators continued their search and found two
fuel cans beneath the basement stairway and a crock pot
with attached wires leading to an electrical timer that was
plugged into an outlet a few feet away. Id. at 290-91. After
determining that the fire had originated in the basement, the
investigators did not obtain a criminal warrant, but instead
proceeded to search the remainder of the house looking for
clues that pointed to arson. Id. at 291.
The Court was confronted with deciding when, and un-
der what circumstances, investigators needed to obtain a
criminal warrant if they wanted to search for evidence of
criminal activity. The Supreme Court’s task was made diffi-
cult by the fact that fire investigators are not on the scene to
suppress the fire, but to determine how the fire was started,
which in some cases means gather evidence that points to
arson. The Court tried to address the matter of distinguish-
ing between when fire investigators are on the scene to de-
termine literally what spark caused the fire and where the
fire first started, and whether criminal actions breathed life
into a fire. In addressing the issue, the Court said, “[i]n many
cases, there will be no bright line separating the firefighters’
investigation into the cause of a fire from a search for evi-
dence of arson. The distinction will vary with the circum-
stances of the particular fire and generally will involve more
than the lapse of time or the number of entries and re-
entries.” Id. at 298 n.9. Although the Court recognized the
14 No. 13-1586
ambiguity in determining the origin and cause of a fire, the
Court made one thing clear: if the primary object of investi-
gators is to determine the cause and origin of a recent fire,
investigators simply need an administrative warrant to con-
duct a valid search. Id. at 294. But if investigators’ primary
object for conducting a search is to gather evidence of crimi-
nal activity, then they need a criminal search warrant. Id.
Using the principle as its guide, the Court affirmed the
exclusion of the two fuel cans found in the basement, the
crock pot, the timer, and the cord that were found after fire
investigators determined where the fire started. Id. at 299.
Moreover, the Court found that once fire investigators had
determined the cause of fire, the additional search of the up-
stairs portion of the home could only have been for the pur-
pose of finding evidence of arson, and therefore excluded all
evidence that was found after the investigators made their
determination. Id. at 297, 299.
As we understand Clifford, it is clear that the term “origin
and cause” excludes any search whose primary object is to
find information of criminal activity. Id. at 294, 298. As part
of this exclusion is any search conducted in an area that is
known not to be the origin of the fire, unless the evidence
seized in this area helps investigators determine how the fire
started. As the Court made clear, in many situations the pri-
mary object of a search conducted after the origin of the fire
is determined is to gather evidence of criminal activity. Id. at
297. If no exception to the warrant requirement applies, the
search must be conducted pursuant to a criminal warrant. Id.
at 294.
To be clear, “origin and cause” does not exclude evidence
that points to criminality that is seized while investigators
No. 13-1586 15
are conducting valid searches to determine where the fire
was started and what literally sparked the fire. We know this
to be true because the Court said as much. Id. at 294 (stating
that evidence of criminal activity discovered during the
course of a valid administrative search directed at determin-
ing the cause of a fire may be seized under the “plain view”
doctrine). Applying the plain view doctrine, the Court did
not exclude the first fuel can investigators seized before they
determined where the fire started. Id. at 299.
The analysis of Clifford helps us determine the parame-
ters of the written consent Rahman gave to fire investigators
“to determine the origin and cause of the fire that occurred
on 1/19/10.” Relying on Clifford, we find that based on the
totality of the circumstances, an objective reasonable person
would conclude that when investigators asked Rahman for
consent to determine the origin and cause of the fire, they
would understand the request to be for consent to determine
where the fire occurred and what sparked the fire, not for a
search whose primary object is to look for criminal activity.
Although the government argues that a lay person could
possibly think that the term “origin and cause” included ar-
son, we do not think it wise to allow the government to ben-
efit from a layperson’s misconception of a phrase with legal
significance, especially when investigators can clear up any
misconception by informing the consenter in writing that
investigators are looking for evidence of criminal activity
and that such evidence could be used against him. Allowing
investigators to benefit from a layperson’s misconception
would create perverse incentives for the government in
drafting consent forms. Our conclusion fits within the
broader meaning of the Fourth Amendment, which allows
16 No. 13-1586
people to be “secure in their persons, houses, papers, and
effects,” and prevents that right from being undermined by
the public’s potential misconception of legal terms. Based on
our interpretation of Clifford, we may now decide what, if
any evidence, should have been suppressed.
Rahman argues that the alarm box that Hankins seized
on January 20 should have been suppressed because it
would have only yielded secondary evidence connected to
arson. We do not agree. There is no indication in the record
that Hankins sought the alarm box in order to determine
whether criminal activity occurred. Based on the surveil-
lance tape from Chubby’s Cheese Steaks, the investigators
suspected that the fire started at 3:31 a.m. and that the origin
of the fire was in or above the Café. It appears as though
Hankins wanted the alarm box because it might contain in-
formation that would tell investigators what time the fire
started, which might help pin down the fire’s cause and
origin. Rahman argues that Hankins ruled out the alarm box
as the source of the fire because neither the alarm box, nor
the area immediately surrounding it, was damaged by the
fire. While that is true, Hankins had not ruled out the base-
ment as the origin of the fire until the 21st, the day after he
seized the alarm box. Given the potential useful nature of the
information obtained from the alarm box that would help
firefighters determine the cause and origin of the fire, the
fact that Hankins had not yet ruled the basement out as the
origin of the fire, and that there is no indication that
Hankins’s primary object for seizing the box was to obtain
information related to criminal activity, we conclude that the
alarm box was properly admitted.
No. 13-1586 17
The same cannot be said about most of the remaining ev-
idence seized from the basement. According to Hankins’s
own testimony, he ruled out the basement as the origin of
the fire on January 21. Following the logic of Clifford, the
presumption is that once the basement was ruled out as the
origin of the fire, the search that Hankins conducted in the
basement after he reached his conclusion was done for the
purpose of searching for criminal activity, even if the theory
had not yet been confirmed. Clifford, 464 U.S. at 297 (stating
that “[b]ecause the cause of the fire was [] known, the search
of the upper portions of the [defendant’s] house … could on-
ly have been a search to gather evidence of the crime of ar-
son”). Therefore, unless it can be demonstrated that items
seized after Hankins reached his conclusion regarding the
basement were seized for the purpose of establishing how
the fire started elsewhere in the building, any evidence col-
lected from the basement after Hankins reached his conclu-
sion about the origin of the fire, including the closed bank
bags, receipts, and a tray from a cash register were illegally
seized and should have been excluded. The surveillance
DVR seized in the basement on January 21 is admissible be-
cause investigators indicated that they were searching for
videos of the business to help determine how the fire started,
and the surveillance DVR could have helped investigators
reach that goal.
Moreover, any evidence collected from the basement on
January 22, including the fire investigators’ observations re-
garding the absence of a computer and safe in the basement,
should be excluded. Rahman told investigators that a safe,
laptop, bank bags and receipts were located in the basement
office of the Café, but after conducting a search they found
no traces of a laptop or safe. On direct examination, Hankins
18 No. 13-1586
testified that one of the reasons he looked for the presence of
those items was to determine whether someone might have
intentionally set the fire to cover up a burglary. Based on
Hankins testimony, it is clear that the primary reason he
searched the basement on January 22 was to find evidence of
criminal activity.
However, observations made on January 22 about the
basement door between the Café and the Grecian Delight are
admissible. Hankins stated that the goal for breaking the
lock on the door was to secure a surveillance video or sys-
tem that the owner of the Cush Lounge indicated would be
located in the basement of the Cush Lounge. According to
Hankins, the reason why the investigators went through the
basement of the Café to gain access to the Grecian Delight
was because that was the only safe way to get the Cush
Lounge’s surveillance video. Since the investigators had not
yet determined the cause and origin of the fire, the surveil-
lance video would have been helpful in assisting investiga-
tors in their search. Although Hankins also admitted that
investigators were trying to determine whether someone
had broken into the Café from the Grecian Delight to set the
fire, it is clear from the record that the primary object for
breaking down the door was not to collect criminal evidence.
That was simply a by-product of knocking down the door to
secure the Cush Lounge’s surveillance system, but rather to
gain one more piece of information that could help infirm
where and how the fire started.
On January 23, investigators seized the door to Rahman’s
office located in the basement as well as the back door of the
Café. According to Hankins’s testimony, while he was col-
lecting samples to send to the laboratory to determine if ig-
No. 13-1586 19
nitable liquid was present, he smelled gasoline. It was at this
moment that he and other investigators leaned towards ar-
son as the cause of the fire. Hankins testified that he collect-
ed these doors after they reached that conclusion. Based on
the record, we conclude that both doors should be excluded
because at the moment investigators seized the doors, they
were collecting evidence based on a theory that the fire in
the Café was intentionally set. Moreover, observations made
on the 26th about the basement door between the Café and
the Grecian Delight should also be suppressed. As we previ-
ously stated, Hankins ruled out the basement on the 21st
and there is no evidence in the record that indicates that the
door was taken for the purpose of discovering the origin and
cause of the fire. Therefore, it must have been seized for the
purpose of determining whether arson occurred.
3. Davis Good-Faith Exception Does Not Apply
The government argues that investigators did not exceed
the scope of Rahman’s authority, but that if they did, the Da-
vis good faith exception applies to all searches of the base-
ment. Specifically, the government argues that Hankins rea-
sonably relied in good faith upon Rahman’s broadly written
consent and subsequent failure to object to the investigators’
search and that under the Katz test, Rahman failed to
demonstrate that he had a subjective expectation of privacy
in his restaurant. Under Davis v. United States, “searches
conducted in objectively reasonable reliance on binding ap-
pellate precedent are not subject to the exclusionary rule.”
131 S. Ct. 2419, 2423–24 (2011).
We reject this conclusion because at the time of the
search, binding precedent with regard to searches was Katz’s
reasonable expectation of privacy test, but also the common-
20 No. 13-1586
law trespass theory. The Court in Jones stated that even
though for most of our country’s history “the Fourth
Amendment was understood to embody a particular con-
cern for government trespass upon the areas (‘persons,
houses, papers, and effects’) it enumerates,” the Court made
clear that “Katz did not repudiate that understanding.” 132
S. Ct. at 950. In articulating this principle, the Court reiterat-
ed a sentiment articulated by Justice Brennan, in United
States v. Knotts, when he stated that neither Katz, nor its
progeny, eroded the common-law trespass theory. 460 U.S.
276, 286 (1983) (Brennan, J., concurring in judgment); see also
Jones, 132 S. Ct. at 955 (stating that the Katz test augmented,
but did not displace or diminish, the common-law trespass
test that preceded it) (Sotomayor, J., concurring). Therefore,
at the time of the search, there were two branches of Fourth
Amendment jurisprudence that bound the government’s ac-
tions: the reasonable expectations theory first articulated in
Katz and the older, historical common-law trespass theory
based on the text of the Fourth Amendment. See Wilson v.
Health & Hosp. Corp. of Marion Cnty., 620 F.2d 1201, 1213 (7th
Cir. 1980) (stating that Katz was not intended to render con-
siderations of common law property rights irrelevant, but
rather it expanded the Fourth Amendment to privacy and
legitimate expectations of privacy). As the common-law
trespass theory has always bound government actions, the
government cannot rely on the Davis good faith exception.
Therefore, the evidence that we have previously deemed ex-
cluded is not saved by Davis since binding appellate prece-
dent at the time of the search would have prohibited the fire
investigators’ search.
No. 13-1586 21
B. Judgment of Acquittal
Rahman also appeals the denial of the motion he made
for a judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29. To convict Rahman of making a false
statement in violation of 18 U.S.C. § 1001, the government
needed to show that Rahman knowingly and willfully made
a materially false statement in connection with a matter
within the jurisdiction of a federal agency. See United States
v. Lupton, 620 F.3d 790, 805 (7th Cir. 2010). We review the
denial of Rahman’s motion for judgment of acquittal de no-
vo. United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010).
In doing so, we ask whether “there was sufficient evidence,
when viewed in the light most favorable to the government,
to allow a rational trier of fact to find all of the essential ele-
ments of an offense beyond a reasonable doubt.” United
States v. Westerfield, 714 F.3d 480, 484 (7th Cir. 2013) (quota-
tion omitted).
Although Rahman argues to the contrary, a jury could
find that that his statement to Wisconsin Deputy Fire Mar-
shal Martinez was made in connection with a matter within
the jurisdiction of a federal agency. The Supreme Court has
instructed that “jurisdiction” in the 18 U.S.C. § 1001 context
should not be “given a narrow or technical meaning.” Bryson
v. United States, 396 U.S. 64, 70-71 (1969). Rather, here “[t]he
term ‘jurisdiction’ merely incorporates Congress’ intent that
the statute apply whenever false statements would result in
the perversion of the authorized functions of a federal de-
partment or agency.” United States v. Stanford, 589 F.2d 285,
297 (7th Cir. 1978). “A department or agency has jurisdiction
… when it has the power to exercise authority in a particular
situation.” United States v. Rodgers, 466 U.S. 475, 479 (1984).
22 No. 13-1586
“Jurisdiction” for § 1001 purposes is not dependent upon
whether the agency has in fact exercised that authority. Unit-
ed States v. Brack, 747 F.2d 1142, 1151 (7th Cir. 1984).
There is no question that Hankins was a member of the
ATF and that the ATF is a federal agency. Rahman argues
that there was no jurisdiction for § 1001 purposes because
when he made the statement at issue to Martinez a few
hours after the fire, the ATF was not in charge of the investi-
gation as it was a multi-jurisdictional effort. Rahman con-
tends that Hankins’s presence at the scene at the time Rah-
man made his statement to a local official was not enough to
provide federal jurisdiction. We disagree. Here, while many
agencies were involved, ATF was one of those agencies, and
it had the power to exercise authority because the agency
has a federal responsibility to investigate fires that affect in-
terstate commerce, and the building that burned down
housed businesses engaged in interstate commerce. See 18
U.S.C. §§ 844(h)(1) & (i). Hankins and the other investigators
shared information and discussed theories regarding the fire
during the course of the investigation. In particular, Agent
Martinez shared the information that Rahman provided in
the interview with ATF investigator Hankins, and Hankins
used that information in his investigation of the scene. See
Brack, 747 at 1151 (7th Cir. 1984) (finding jurisdiction and
stating that the “false statement need not be submitted di-
rectly to the federal agency: it suffices to show that the de-
ception of a private company affected a federal agency be-
cause of that agency’s responsibility to ensure that its funds
are properly spent”). We are satisfied that there was suffi-
cient evidence for the jury to find that Rahman made a
statement in connection with a matter within the jurisdiction
of a federal agency for purposes of 18 U.S.C. § 1001.
No. 13-1586 23
Whether the government proved that Rahman made a
false statement is a more difficult question. At trial, Martinez
testified that during his interview with Rahman, he asked
Rahman where he kept his business records. Recounting
Rahman’s reply, Martinez testified: “And he told me that all
his business records were kept in his basement in his office.
And he also has—his computer, like a laptop that he keeps
down there, and he keeps a lot of business records on that
laptop.” The prosecutor next asked, “And he said that the
computer would be in the restaurant?” Martinez responded,
“Yeah, he believes it was in the restaurant, but he wasn’t
sure if it was in the basement or up by the cashier. Or the
cash counter in the front.” The prosecutor asked Martinez to
confirm that, according to Rahman, the laptop was in one of
those two places, and Martinez agreed. When asked whether
Rahman described the area in the basement where the lap-
top would have been if he had left it in the basement, Mar-
tinez said it “would have been in his office by–on his desk.”
The false statement that Rahman was charged with mak-
ing was, according to the jury instructions, “that his comput-
er, which he claimed contained the business records of the
Black and White Café, was inside the Café at the time of the
fire.” The government maintains the statement was false be-
cause investigators found a red Gateway laptop in Rahman’s
home that did not contain business records. Rahman, how-
ever, maintains that the government failed to prove he made
a false statement. For him, the fact that the red laptop did
not contain business records supports his position that he
was not referring to that laptop when he volunteered to
Martinez that one location of his business records was on a
computer.
24 No. 13-1586
As Rahman emphasizes, Martinez’s question to Rahman
was directed at business records, not to the presence of a lap-
top. When Rahman volunteered the information that he also
kept business records on a laptop, Martinez did not ask him
any questions about the laptop to which Rahman was refer-
ring. Rahman was not asked about the laptop’s brand, or its
color, or anything at all about what it looked like. Martinez
did not even ask Rahman how many laptops or computers
he had. Investigators who later questioned Rahman after the
search of the basement did not ask any clarifying questions
regarding the laptop either.
The government’s position at trial was that Rahman was
referring to the red Gateway laptop when he spoke with
Martinez. While the government stresses that a forensic
analysis showed there were no business records on the red
Gateway laptop, the allegedly false statement that Rahman
was convicted of making does not reference this particular
computer. The allegedly false statement at issue instead only
refers to his “computer,” with no other description. And
Rahman volunteered to Martinez that he kept records on “a
laptop” but never said it was on a red laptop or on a Gate-
way one. Rahman therefore maintains that the government
did not establish beyond a reasonable doubt that the state-
ment at issue could not be true, i.e., that Rahman did not
have a second computer. He argues that the government did
not establish that another computer, the one with the busi-
ness records, was not in the Café at the time of the fire.
The government cites our statement, true as a general
matter, that the law does not require the government to dis-
prove every conceivable hypothesis of innocence in order to
sustain a conviction. United States v. Humphrey, 468 F.3d
No. 13-1586 25
1051, 1054 (7th Cir. 2006). But the nature of the charge here
matters. “When reviewing sufficiency of the evidence
through the lens of a perjury conviction,” a charge with simi-
larities to the false statement charge here, a literally true an-
swer does not sustain a conviction. United States v. Gorman,
613 F.3d 711, 716 (7th Cir. 2010) (citing Bronston v. United
States, 409 U.S. 352, 356-58) (1973)). That is true even if a de-
fendant gives a misleading or nonresponsive answer.
Bronston, 409 U.S. at 361-62. Illustrating this principle, the
Supreme Court reversed the defendant’s perjury conviction
in Bronston where the statement was both misleading and
nonresponsive, but not literally untrue. Id.
Although the perjury conviction at issue in Bronston was
founded on witness testimony in responding to attorney
questioning at a court hearing, the Supreme Court’s reason-
ing behind its decision to reverse the conviction there is in-
structive here as well. The Court said it “perceive[d] no rea-
son why Congress would intend the drastic sanction of a
perjury prosecution to cure a testimonial mishap that could
readily have been reached with a single additional question
by counsel alert—as every examiner ought to be—to the in-
congruity of petitioner’s unresponsive answer.” Id. at 358.
And so, the Supreme Court said, “[t]he burden is on the
questioner to pin the witness down to the specific object of
the questioner’s inquiry.” Id. at 360; see also, e.g., United States
v. Parker, 364 F.3d 934, 945 (8th Cir. 2004) (ruling that the
government bears the burden of negating literally truthful
interpretations of statements when the statements are am-
biguous and are subject to reasonable interpretations).
Here too, the identity of the laptop to which Rahman was
referring could have been cleared up by a single additional
26 No. 13-1586
question or two by Martinez, or by the other investigators
who spoke with Rahman later. A criminal conviction is a
drastic sanction when no questioner pinned Rahman down
to which laptop he was referring. It was not at all unlikely
that Rahman would have more than one computer between
work and home, yet the government pinned its case on the
laptop in Rahman’s statement being the red Gateway.
In fact, that Rahman had more than one computer is just
what the jury heard. The jury heard about not just one, but
two laptops that Rahman had, and it also heard he used both
at the Café. And it was from one of the government’s own
witnesses that the jury heard about the second computer.
Rahman’s ex-girlfriend, testifying for the government, stated
that she remembered a slow, gray, old, clunky laptop that
Rahman kept downstairs at the Café. Downstairs was the
location of Rahman’s office. Keeping the records on a laptop
downstairs would be consistent with Rahman’s statement to
Martinez that he kept business records downstairs, where
his office was. In contrast to the gray laptop, the jury heard
that the red laptop was also used by many other people, in-
cluding by customers, for reasons including to surf the in-
ternet and to check social media sites, and that it was also
used upstairs. Rahman points out that one might wonder
whether a business owner would keep business records on a
computer used by many others including customers.
The government argues that “while it is unfortunate that
investigators never asked Rahman to describe his laptop, the
evidence at trial resolved any ambiguity as to which laptop
he was referring.” But the failure was more than “unfortu-
nate.” And the evidence at trial did not resolve the ambigu-
ous statement. Rahman may not have been referring to the
No. 13-1586 27
red laptop when he spoke with Martinez. There was no evi-
dence that another laptop, such as the gray laptop, did not
contain business records. So neither the fact that the red
Gateway computer was found at Rahman’s home nor that it
did not contain business records is sufficient to find Rahman
guilty of making the charged false statement.
That said, even if there was a second laptop with busi-
ness records, Rahman could still be guilty of making a false
statement if the government proved beyond a reasonable
doubt that no other computer was found in the fire. Ordinar-
ily a reviewing court must consider all of the evidence ad-
mitted by the trial court when considering a sufficiency of
the evidence challenge, regardless of whether that evidence
was admitted erroneously. Lockhart v. Nelson, 488 U.S. 33, 39
(1988); see also McDaniel v. Brown, 558 U.S. 120, 131 (2010);
United States v. Fenzl, 670 F.3d 778, 783 (7th Cir. 2012) (citing
United States v. Tranowski, 702 F.2d 668 (7th Cir. 1983)). Here,
evidence admitted at trial and heard by the jury included
that the search of the basement turned up no evidence of a
laptop. But we have ruled that the government may not in-
troduce the basement search evidence, a factor that will un-
doubtedly be dispositive, or at the least weigh very heavily,
when the government decides on remand whether to dis-
miss the false statement charge.
C. Remaining Issues
Rahman raises a sentencing issue that we address for
completeness in the event there is a retrial. Rahman contends
that the sentencing judge relied on factually inaccurate in-
formation which influenced the judge’s choice of sentence.
“When errors of this nature are alleged to have affected the
defendant’s sentence, we review the lower court record to
28 No. 13-1586
determine whether the district court actually relied on the
inaccurate information in sentencing the defendant.” United
States v. Salinas, 365 F.3d 582, 586 (7th Cir. 2004). We review
the district court’s application of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v.
Bennett, 708 F.3d 879, 888 (7th Cir. 2013).
After reviewing the record, it is clear the sentencing
judgment made a factual error. At sentencing, the judge not-
ed that when firefighters arrived, the back door was un-
locked. The judge stated that the only way it could have
been unlocked was with a key, and since only Rahman had a
key, that meant only Rahman, or someone at his direction,
set the fire. The judge further explained that since Andres
Karabelas, the owner of the Grecian Delight, did not have a
key, he could not have set the fire. That reasoning was clear-
ly wrong, however, as Karabelas did not need a key to open
the door from his side of the door. The government also
agrees that the district court was mistaken about how the
lock operated. While the judge pointed to other reasons why
it found Rahman responsible for arson, the judge’s finding
that Karabelas did not have a key to the basement door that
separated the Café from the Grecian Delight seemed to be an
important reason why the judge found Karabelas could not
have been responsible for the fire. Rahman argues that be-
cause of this error, he is entitled to re-sentencing. We agree
with Rahman on this point, but because we remand for fur-
ther proceedings, the judge will only need to consider it if
the government elects to retry Rahman and he is again con-
victed.
No. 13-1586 29
III. CONCLUSION
We REVERSE the district court’s denial of the motion to
suppress and REMAND for further proceedings consistent
with this opinion.