United States v. Joseph Abed

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4637
JOSEPH ABED, a/k/a Joseph Abbott,
a/k/a Pancake Joe, a/k/a Joe, a/k/a
Godfather,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4642
THAIER OMAR ABED, a/k/a Little O,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4647
AMAR KHALID ABED, a/k/a Omar,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4648
OBADYA HANIFI ABED, a/k/a Beta,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4649
FAHAD T. TAWALBEH,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4670
RAYED FAWZI ABED,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-97-24-R)
Argued: October 28, 1999
Decided: January 10, 2000
Before NIEMEYER and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Harwell M. Darby, Jr., GLENN, FELDMANN, DARBY
& GOODLATTE, Roanoke, Virginia; Rhonda Lee Overstreet, Roa-
2
noke, Virginia; Melissa Windham Friedman, Roanoke, Virginia;
James Peyton Cargill, LAW OFFICES OF DANIEL L. CRANDALL,
P.C., Roanoke, Virginia, for Appellants. Thomas Ernest Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Gary L. Lumsden, Roanoke, Vir-
ginia, for Appellant Joseph Abed; Rena Gladys Berry, Roanoke, Vir-
ginia, for Appellant Amar Abed. Robert P. Crouch, Jr., United States
Attorney, Thomas J. Bondurant, Assistant United States Attorney,
Julie C. Dudley, Assistant United States Attorney, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Joseph Abed, Amar Abed, Obadya Abed, Rayed Abed, Thaier
Abed, and Fahad Tawalbeh (collectively, Appellants) were convicted
by a jury of committing various federal crimes arising out of a crimi-
nal enterprise of which Appellants were alleged to be members.1
Appellants jointly and individually assert a number of different
grounds for reversal on appeal, principally that the district court erred
in instructing the jury on the proof necessary to find Appellants guilty
of conspiracy to violate the Racketeer Influenced and Corrupt Organi-
zations Act (RICO), 18 U.S.C.A. § 1962(d) (West Supp. 1999); that
the evidence presented by the Government was insufficient for the
jury to find Joseph, Amar, Obadya, and Rayed guilty of a substantive
RICO offense, 18 U.S.C.A. § 1962(c) (West 1984); that the evidence
was insufficient to find Joseph, Amar, Obadya, and Rayed guilty of
RICO conspiracy, 18 U.S.C.A. § 1962(d); that the evidence was
insufficient for the jury to find Joseph guilty of two predicate acts of
_________________________________________________________________
1 For the sake of brevity and convenience, all subsequent references to
individual Appellants who are Abeds will use their first name.
3
racketeering; and that the evidence was insufficient for the jury to
find Tawalbeh, Obadya, and Rayed guilty of using a destructive
device during and in relation to a crime of violence, in violation of
18 U.S.C.A. § 924(c) (West Supp. 1999) and 18 U.S.C.A. § 2 (West
1969). Several Appellants also assert that the district court erred at
sentencing. Finding no error, we affirm Appellants' convictions and
sentences.
I.
According to the Government's theory of the case, Appellants were
members of an organization loosely termed the "Abed organization"
that committed various federal crimes in Roanoke, Virginia and the
surrounding area. Joseph and his brother Abed Abedjalil were the
alleged leaders of the conspiracy.2 Rayed is Joseph's son; Amar, Oba-
dya, and Thaier are Abedjalil's sons. Rayed, Amar, Obadya, and
Thaier were referred to as "the boys" by Joseph and Abedjalil.
Although "the boys" acted autonomously in the commission of many
offenses, a number of crimes they committed were at the behest of
Joseph and Abedjalil, furthering the fathers' interests. Fahad Tawal-
beh was an associate of the Abed family who maintained close con-
tact with Joseph and shared some affiliation with"the boys."
Rayed, Amar, Obadya, and Thaier participated in illegal drug-
trafficking activities. Beginning in 1992, "the boys" distributed mari-
juana and cocaine powder from family-owned businesses in Roanoke
and the surrounding area, including Tolley's Bar, Guys and Dolls
Nightclub, and Pizza King Restaurant. These four Appellants also
conducted drug transactions from their residence in Roanoke. In addi-
tion to dealing drugs themselves, "the boys" frequently burglarized
the residences of other local drug dealers in order to obtain drugs for
sale and for personal use. Moreover, "the boys" did not limit their ille-
gal activities to drug trafficking. Issam Ottallah, an unindicted co-
conspirator, testified that he and Amar would often beat and rob
patrons of Tolley's Bar and that he, Amar, Obadya, and Thaier would
often burglarize cars in its parking lot and steal guns and other valu-
ables. According to Ottallah, he and "the boys" would give the stolen
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2 Abedjalil was also named in the indictment but was acquitted by the
jury of all counts against him.
4
goods to Joseph, who would resell them at his pancake house. Several
witnesses testified that in December 1993, Obadya burglarized
Dave's Market, a convenience store, and along with Rayed and Ottal-
lah, sold the stolen goods to Abedjalil, who used the goods to stock
a convenience store he owned.
Joseph owned property that contained Tolley's Bar and an apart-
ment complex. Joseph and Abedjalil were unable to keep Tolley's Bar
solvent and Joseph was unable to maintain current payments on the
loan he took out to purchase the property. As a result, the lending
bank foreclosed on the property during the summer of 1992. Shortly
after news of the imminent foreclosure became public, William Bow-
yer, owner of Central Motors, a business that was located adjacent to
Tolley's Bar, purchased the property. Donna Abed, Joseph's
daughter-in-law, testified that Joseph went "ballistic" after learning
that Bowyer had purchased the property. Although Bowyer purchased
the property in May 1992, he did not send Joseph an eviction notice
until July 1, 1992. Ottallah testified that in July 1992, Joseph con-
vened a meeting with Ottallah, Amar, Obadya, Thaier, and Ronald
Jones.3 At that meeting, Joseph stated that he wanted Central Motors
to be burned that night. Joseph then gave money to Amar and told
him to buy gasoline and to burn Central Motors after all the customers
had left Tolley's Bar.
Jones testified that Amar and Ottallah instructed him and Thaier to
slash tires at the Central Motors parking lot. In accordance with those
instructions, Thaier and Jones went to Central Motors and began to
slash tires. Thaier deliberately cut his hand in an effort to avoid fur-
ther participation in the offense and was told by Amar to go back to
the bar. Jones also testified that he, Amar, and Ottallah then went to
a gasoline station to purchase gasoline for the fire. Amar and Jones
then sprayed the entire Central Motors lot with gasoline. Before the
fire could be started, however, the police arrived, and all the partici-
pants fled the scene.
Tawalbeh owned a convenience store named Speedway Market.
Cheryl Lyons, a teenage prostitute, testified that Tawalbeh was active
in the illegal drug trade and allowed drug dealers to hide drugs in his
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3 Jones was not named in the indictment.
5
store when the police were in the area. Lyons testified that in
exchange for crack cocaine, she provided sexual favors to Tawalbeh.
Lyons also testified that she purchased marijuana from Amar and
Obadya, either at Guys and Dolls Nightclub or Speedway Market.
Pamela DeGeorge, a federal undercover agent, testified that in 1992,
she investigated Speedway Market for illegal food stamp trafficking
and that Tawalbeh arranged for her to sell her food stamps to Amar.
DeGeorge also testified that Tawalbeh told her that he could obtain
crack cocaine and marijuana for her but that she had declined his
offer.
In the fall of 1994, Tawalbeh became upset because he thought that
the business at Speedway Market was suffering due to competition
from the Corner Store, a convenience store located across the street.
Tawalbeh propositioned several individuals about eliminating the
competition by burning down the Corner Store. Michael Witt, a cus-
tomer of Speedway Market, testified that Tawalbeh asked him to burn
down the Corner Store "several times" and told him to use a Molotov
cocktail to do so. Ottallah testified that both Joseph and Tawalbeh
asked him to burn down the Corner Store and offered him $5,000 for
the job. Tawalbeh and Amar subsequently agreed that Amar would
burn down the Corner Store. Amar brought Obadya, Rayed, and Rich-
ard Chisom, one of his associates, into the scheme. Chisom testified
that a week before the fire at the Corner Store, he, Amar, Obadya, and
Rayed met with Tawalbeh and Joseph at the Speedway Market, where
a conversation in Arabic occurred. Amar subsequently translated the
conversation for Chisom, informing him that Tawalbeh wanted the
Corner Store burned because it was taking away business from the
Speedway Market, that he would pay $2,000 for the job, and that the
Corner Store would be burned with a Molotov cocktail.
After scouting the Corner Store, Amar, Obadya, Rayed, and Chi-
som decided that they would toss a Molotov cocktail through the back
window of the Corner Store into the stockroom. On January 13, 1995,
they carried out their plan. Chisom testified that Rayed made the
Molotov cocktail with a wine bottle, a rag, and some gasoline. Rayed
dropped Chisom and Amar off in the alley behind the Corner Store,
while Obadya served as a lookout at the front of the alley. After Chi-
som broke the window with a rock, Amar lit the Molotov cocktail,
and Chisom threw it into the store. The conspirators met at their car,
6
circled around the block, and returned to Chisom's apartment. The
fire "completely burnt out" the Corner Store. (J.A. at 352.)
In August 1995, Joseph opened a pancake house on Jefferson
Street (the Jefferson Street Pancake House) on property leased from
CW Francis & Son. The five-year lease required Joseph to pay $2,000
per month in rent plus real estate taxes and insurance, and to pay five
years rent in the event of a default. The lease also contained a rent
abatement clause if the building was destroyed by fire. CW Francis
& Son maintained insurance on the property and business interruption
insurance on the income from the property, and required all tenants
to name CW Francis & Son as an additional insured on their insur-
ance. In September 1995, Joseph purchased a $50,000 insurance pol-
icy to cover personal property and glass at the restaurant.
Toward the end of 1995, business began to slow down and Joseph
was having difficulty paying his food service creditors. According to
William Trinkle, President of CW Francis & Son, Joseph's rent pay-
ment history was poor. Joseph was late in paying the insurance and
rent for October 1995. On October 27, 1995, CW Francis & Son filed
a summons for unlawful detainer and began eviction proceedings
against Joseph. On that same day, CW Francis & Son sued Joseph for
the October and November rent in the amount of $4,000, a $400 late
fee, $619.48 for real estate taxes, and $30 in court costs. After Joseph
failed to pay his outstanding rent and late fees in full, CW Francis &
Son filed a writ of possession and a levy, and obtained an eviction
order that required Joseph to vacate the premises by December 22.
On December 18, 1995, four days before the scheduled eviction, a
fire broke out at the Jefferson Street Pancake House. The firemen
reporting to the scene testified that both the front and rear doors to the
pancake house were locked. The assistant fire marshal testified that
the amount of inventory at the pancake house was minimal. Based
upon the presence of accelerants and the gas being left on, the assis-
tant fire marshal concluded that the fire was an act of arson. Although
a proof of loss was filed on Joseph's behalf by the agent of the insur-
ance company that sold Joseph the $50,000 policy, no payment was
made under that claim. CW Francis & Son received a total of
$78,678.62 as a result of the fire, from both building insurance and
business interruption insurance. CW Francis & Son decided not to
7
restore the pancake house, and the building was razed to make room
for a parking lot.
Appellants were charged in a twelve-count indictment with com-
mitting various federal crimes arising out of the activities of the Abed
organization. Counts One and Two charged all Appellants with a sub-
stantive RICO offense, 18 U.S.C.A. § 1962(c) (West 1984), and con-
spiracy to violate RICO, 18 U.S.C.A. § 1962(d) (West Supp. 1999),
respectively. Counts Three and Four charged Joseph, Amar, Obadya,
Rayed, and Thaier with conspiracy to commit arson, in violation of
18 U.S.C.A. § 371 (West Supp. 1999), and attempted arson, in viola-
tion of 18 U.S.C.A. § 844(i) (West Supp. 1999) and 18 U.S.C.A. § 2(West 1969), respectively, of Central Motors. Counts Five and Six
charged these Appellants with conspiracy to commit arson, in viola-
tion of 18 U.S.C.A. § 371, and arson, in violation of 18 U.S.C.A.
§ 844(i) and 18 U.S.C.A. § 2, respectively, of Mixers Restaurant and
Lounge.4 Counts Seven and Eight charged these Appellants with wire
fraud, in violation of 18 U.S.C.A. § 1343 (West Supp. 1999) and 18
U.S.C.A. § 2, and of 18 U.S.C.A. § 844(h) (West Supp. 1999) and 18
U.S.C.A. § 2, respectively, in connection with the arson of Mixers
Restaurant and Lounge. Counts Nine and Ten charged Joseph, Amar,
Obadya, Rayed, and Tawalbeh with conspiracy to commit arson, in
violation of 18 U.S.C.A. § 371, and arson, in violation of 18 U.S.C.A.
§ 844(i) and 18 U.S.C.A. § 2, respectively, of the Corner Store. Count
Eleven charged these Appellants with use of a destructive device dur-
ing and in relation to a crime of violence, in violation of 18 U.S.C.A.
§ 924(c) (West Supp. 1999) and 18 U.S.C.A.§ 2, relating to the use
of a Molotov cocktail in the Corner Store arson. Count Twelve
charged all Appellants with conspiracy to distribute cocaine and mari-
juana, in violation of 21 U.S.C.A. § 846 (West 1999).
Following a thirty-five day trial, which included ten days of delib-
eration, the jury returned its verdict. The jury convicted Joseph on
Counts One, Two, Three, and Four. The jury found that Joseph had
committed the predicate racketeering acts of arson of the Jefferson
Street Pancake House and attempted arson of Central Motors. The
_________________________________________________________________
4 Mixers Restaurant and Lounge was owned by Riyadh Mahmoud
Gibriel and Ahmad Thiab, who were also named in the indictment but
acquitted by the jury of all counts against them.
8
jury acquitted Joseph on Counts Five through Twelve. The jury con-
victed Amar on Counts One, Two, Three, Four, Nine, Ten, Eleven,
and Twelve. The jury found that Amar had committed the predicate
racketeering acts of arson of the Corner Store, attempted arson of
Central Motors, robbery, and drug conspiracy. The jury acquitted
Amar on Counts Five through Eight. The jury convicted Obadya and
Rayed on Counts One, Two, Nine, Ten, Eleven, and Twelve. The jury
found that they had committed the predicate racketeering acts of arson
of the Corner Store and drug conspiracy. The jury acquitted them on
Counts Three through Eight. The jury convicted Thaier on Counts
Two, Three, and Twelve and acquitted him on Count One and Counts
Four through Eight. Finally, the jury convicted Tawalbeh on Counts
Nine, Ten, and Eleven and acquitted him on Counts One, Two, and
Twelve. Appellants received sentences ranging from 92 months to
570 months.
Appellants jointly and individually assert a number of different
grounds for reversal on appeal. With regard to the district court's
actions at trial, Joseph, Obadya, and Rayed argue that the district
court erred by refusing to give their requested jury instruction on the
proof necessary to find one guilty of RICO conspiracy under 18
U.S.C.A. § 1962(d). In addition, Appellants assert several sufficiency-
of-the-evidence claims. Joseph, Amar, Obadya, and Rayed argue that
the evidence was insufficient to sustain their convictions for the sub-
stantive RICO violation and for RICO conspiracy. Joseph argues that
the evidence was insufficient to sustain the jury's finding that he com-
mitted the predicate acts of arson and attempted arson. Tawalbeh,
Obadya, and Rayed argue that the evidence was insufficient to sustain
their convictions for use of a destructive device during and in relation
to a crime of violence.
Several Appellants also argue that the district court erred in calcu-
lating their sentences. Joseph argues that the district court erred in set-
ting his base offense level at 24, pursuant to U.S. Sentencing
Guidelines Manual § 2K1.4(a)(1) (1998), based upon its finding that
the attempted arson of Central Motors created a substantial risk of
death or serious bodily injury and that Joseph knowingly created that
risk. Joseph also argues that the district court erred in enhancing his
offense level by four levels, pursuant to U.S.S.G.§ 3B1.1(a), based
upon its finding that he was an organizer and leader of an attempted
9
arson of Central Motors that included five or more participants. Amar
argues that the district court erred in using his food stamp fraud con-
viction as a prior offense in calculating the criminal history portion
of his guideline sentence. Finally, Tawalbeh, Obadya, and Rayed
argue that the district court erred in sentencing them to mandatory,
consecutive thirty-year sentences under 18 U.S.C.A.§ 924(c) for
using a Molotov cocktail to commit the Corner Store arson.
We now address these arguments.5
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5 Appellants also argue that the district court erred by (1) denying their
pretrial motion to dismiss Counts One and Two of the indictment on the
ground that the RICO pattern element was unconstitutionally vague as
applied to the facts of this case; (2) admitting evidence of Appellants'
uncharged crimes as proof of the existence and structure of the charged
racketeering enterprise; (3) admitting oral statements and nonverbal con-
duct of witnesses concerning the Corner Store fire; (4) failing to give a
separate Pinkerton instruction, see Pinkerton v. United States, 328 U.S.
640 (1946), on co-conspirator liability; and (5) denying their motion for
a new trial on the ground that the Government's plea agreements with
cooperating witnesses violated 18 U.S.C.A. § 201(c)(2) (West Supp.
1999), the anti-gratuity statute. Tawalbeh asserts that the district court
erred by refusing to give the jury his requested instruction on the use of
co-conspirator statements. Thaier contends that the district court erred by
refusing to give his requested instruction on duress.
We have carefully considered these arguments and find them merit-
less. See United States v. Bennett, 984 F.2d 597, 606-07 (4th Cir. 1993)
(upholding "pattern of racketeering" requirement in the RICO statute
against vagueness challenge because statute provided defendants with
adequate notice that acts of arson, fraud, attempted murder, perjury, and
obstruction of justice that were committed to allow the enterprise to con-
tinue to defraud insurance companies "fell within those acts contem-
plated by a RICO enterprise and a RICO conspiracy to participate in the
affairs of such an enterprise"); United States v. Salerno, 108 F.3d 730,
738-39 (7th Cir. 1997) (holding that because the existence of an enter-
prise is an essential element of the RICO offense, evidence that goes to
establish an enterprise's existence and a defendant's participation in it is
not "other crimes" evidence subject to Federal Rule of Evidence 404(b));
United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993) (noting that
extrajudicial statements implicating defendant in a crime were properly
admitted as nonhearsay because they were offered not for their truth but
10
II.
Joseph, Obadya, and Rayed first argue that the district court erred
in its instruction to the jury on the proof necessary to find one guilty
of RICO conspiracy. See 18 U.S.C.A. § 1962(d) (West Supp. 1999).
At the close of trial, the district court instructed the jury that to estab-
lish guilt under § 1962(d) (Count Two) the Government was required
to prove beyond a reasonable doubt the following:
One, a conspiracy or agreement existed, as detailed in
Count Two, to participate in the affairs of an enterprise that
affected interstate commerce through a pattern of racketeer-
ing activity; two, the particular defendant deliberately
enjoined -- deliberately joined or became a member of a
conspiracy or agreement with knowledge of its purpose;
and, three, the particular defendant knew at the time he
joined the conspiracy or at some later time while he still was
a member that someone, not necessarily the defendant,
would commit at least two of the racketeering acts detailed
in the indictment in furtherance of the racketeering scheme.
(J.A. at 3832.) The district court further instructed the jury that to
meet its burden under this Count, the Government was required to
prove that "the defendant knowingly adopted the goal of furthering or
facilitating the criminal endeavor," or in other words, that "the defen-
dant knew about the pattern of racketeering activity and agreed to
_________________________________________________________________
to show defendant's motive to murder the declarants); United States v.
Aramony, 88 F.3d 1369, 1379-81 (4th Cir. 1996) (upholding sufficiency
of Pinkerton instruction substantially similar to one given by district
court here); United States v. Richardson, 1999 WL 686892, *2-*5 (4th
Cir. Sept. 3, 1999) (rejecting argument that § 201(c)(2) applies to plea
agreements between Government and witnesses); United States v. Smith,
44 F.3d 1259, 1270-71 (4th Cir. 1995) (holding that district court is not
required to give defendant's particular form of instruction so long as the
instruction the court gives fairly states the controlling law); United States
v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994) (holding that court can refuse
to instruct the jury on the duress defense if the defendant fails to proffer
sufficient evidence as a matter of law to support an element of the
defense).
11
facilitate the racketeering scheme," but was not required "to prove
that the defendant himself committed or agreed to commit two or
more acts of racketeering." (J.A. at 3833.) Rayed objected to the third
part of the initial instruction on behalf of Appellants and requested
that the district court instruct the jury that the Government was
required to prove that the defendant agreed that someone would com-
mit at least two racketeering acts. The district court overruled this
objection.
On appeal, Joseph, Obadya, and Rayed renew this objection, argu-
ing that the district court misinterpreted United States v. Salinas, 118
S. Ct. 469 (1997), when it stated that a defendant need not have
agreed that someone would commit two predicate acts to be convicted
of RICO conspiracy. These Appellants assert that Salinas only held
that a defendant need not have agreed personally to commit two pred-
icate acts to be convicted of RICO conspiracy. In support of their
interpretation, these Appellants cite a Seventh Circuit case, Goren v.
New Vision Int'l, Inc., 156 F.3d 721 (7th Cir. 1998), decided after
Salinas, in which that court held that the defendant must have agreed
that someone would commit at least two predicate acts. Joseph, Oba-
dya, and Rayed assert that the district court's failure to give the
requested instruction warrants reversal of their convictions on Count
Two.
"This [C]ourt reviews jury instructions in their entirety and as part
of the whole trial." United States v. Bostian , 59 F.3d 474, 480 (4th
Cir. 1995). In a criminal case, this Court examines"`whether the
court adequately instructed the jury on the elements of the offense and
the accused's defenses.'" Id. (quoting United States v. Fowler, 932
F.2d 306, 317 (4th Cir. 1991)). "Both the decision to give (or not to
give) a jury instruction and the content of an instruction are reviewed
for abuse of discretion." United States v. Russell, 971 F.2d 1098, 1107
(4th Cir. 1992). As this Court has noted:
A refusal to grant a requested instruction is only reversible
error if the instruction (1) was correct; (2) was not substan-
tially covered by the court's charge to the jury; and (3) dealt
with some point in the trial so important, that failure to give
the requested instruction seriously impaired the defendant's
ability to conduct his defense.
12
United States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998), cert.
denied, 119 S. Ct. 835 (1999). In sum, this Court's review is
"whether, taken as a whole, the instruction [given] fairly states the
controlling law." United States v. Cobb, 905 F.2d 784, 789 (4th Cir.
1990).
In Salinas, the Supreme Court addressed the defendant's argument
that to prove guilt on a charge of conspiracy to violate RICO, the
Government needed to prove that the defendant himself committed or
agreed to commit the two predicate acts required for a substantive
RICO offense under § 1962(c). See 118 S. Ct. at 476. The Supreme
Court rejected this argument, holding that "[a] conspirator must
intend to further an endeavor which, if completed, would satisfy all
of the elements of a substantive criminal offense, but it suffices that
he adopt the goal of furthering or facilitating the criminal endeavor."
Id. at 477 (emphasis added). Applying this standard to the facts of the
case, the Court upheld the defendant's conviction under § 1962(d),
because even though he did not commit or agree to commit the two
predicate acts of acceptance of bribes, he "knew about and agreed to
facilitate the scheme." Id. at 478.
In Goren, the Seventh Circuit addressed the applicability of Salinas
in the context of a civil RICO complaint. The Seventh Circuit con-
cluded that a viable claim under § 1962(d) requires "that each defen-
dant agree[ ] to maintain an interest in or control of an enterprise or
to participate in the affairs of an enterprise through a pattern of racke-
teering activity" and "that each defendant further agree[ ] that some-
one would commit at least two predicate acts to accomplish those
goals." Goren, 156 F.3d at 732. Focusing on the latter requirement,
Joseph, Obadya, and Rayed argue that the district court erred as a
matter of law by refusing to instruct the jury that to convict Appel-
lants of RICO conspiracy under § 1962(d), it needed to find that each
Appellant agreed that someone would commit at least two predicate
acts.
We believe that Appellants' focus on Goren leads them to take an
overly narrow view of the district court's instruction on Count Two.
As the Supreme Court has noted, "instructions must be evaluated not
in isolation but in the context of the entire charge." Jones v. United
States, 119 S. Ct. 2090, 2103 (1999). In addition to instructing the
13
jury that, to sustain its burden of proof for RICO conspiracy, the Gov-
ernment had to prove beyond a reasonable doubt that the particular
defendant knew that someone would commit at least two predicate
racketeering acts in furtherance of the racketeering scheme, the dis-
trict court also instructed the jury that the Government was required
to prove that (1) a conspiracy existed, (2) the particular defendant
deliberately joined the conspiracy with knowledge of its purpose, and
(3) the defendant knowingly adopted the goal of furthering or facili-
tating the criminal endeavor. This instruction, viewed in its entirety,
is almost identical to the jury instruction the Supreme Court upheld
in Salinas, which also did not specifically mention that the Govern-
ment was required to prove that the defendant agreed that someone
would commit two predicate acts.6 The instruction in the instant case
is also virtually identical to the Supreme Court's characterization of
the requirements of RICO conspiracy. See Salinas , 118 S. Ct. at 477("A conspirator must intend to further an endeavor which, if com-
pleted, would satisfy all of the elements of a substantive criminal
offense, but it suffices that he adopt the goal of furthering or facilitat-
ing the criminal endeavor."). Accordingly, we hold that the district
court's jury instruction on the proof necessary to find one guilty of
RICO conspiracy, 18 U.S.C.A. § 1962(d), fairly stated the controlling
law and was not reversible error.
III.
Appellants next assert several sufficiency-of-the-evidence claims.
Joseph, Amar, Obadya, and Rayed argue that the Government's evi-
dence was insufficient to convict them of the substantive RICO
offense, 18 U.S.C.A. § 1962(c) (West 1984), and of RICO conspir-
acy, 18 U.S.C.A. § 1962(d) (West Supp. 1999). Joseph contends that
the Government's evidence was insufficient for the jury to find that
_________________________________________________________________
6 The trial court's instruction on the RICO conspiracy count stated:
What you are being asked to decide in Count Two is .. . If Sali-
nas was only involved in one or two or even none, did he, never-
theless, know about this pattern. Did he know that this whole
pattern of activity was going on and did he then knowingly and
willfully join in and participate and contribute in some fashion.
United States v. Marmolejo, 89 F.3d 1185, 1195 n.16 (5th Cir. 1996).
14
he committed the two predicate racketeering acts of arson of the Jef-
ferson Street Pancake House and attempted arson of Central Motors.
Tawalbeh, Obadya, and Rayed assert that the Government's evidence
was insufficient to convict them of using a destructive device during
and in relation to a crime of violence, in violation of 18 U.S.C.A.
§ 924(c) (West Supp. 1999) and 18 U.S.C.A.§ 2 (West 1969), relat-
ing to the arson of the Corner Store.
When reviewing a sufficiency-of-the-evidence claim, we will sus-
tain the jury's verdict "if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). "[S]ubstantial evidence is evidence
that a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant's guilt beyond a reasonable
doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). With this standard of review in mind, we address Appellants'
arguments seriatim.
A.
Joseph, Amar, Obadya, and Rayed first argue that the Govern-
ment's evidence was insufficient to convict them of the substantive
RICO offense, 18 U.S.C.A. § 1962(c) (West 1984), and of RICO con-
spiracy, 18 U.S.C.A. § 1962(d) (West Supp. 1999), because the evi-
dence did not demonstrate that they acted as a continuing unit with
a common purpose. Rather, these Appellants argue, the evidence
demonstrated that each Appellant acted in his own self-interest.
Joseph similarly contends that his verdicts of acquittal on Counts Five
through Twelve indicate that the jury rejected all evidence that sug-
gested that he associated with the other Appellants in the period
between the attempted arson of Central Motors in 1992 and the arson
of the Jefferson Street Pancake House in 1995, and, furthermore, that
there is no evidence that he conspired with any other members of the
Abed family with regard to the pancake house arson. Joseph thus
asserts that the predicate acts the jury found that he committed had
no connection to the alleged enterprise. Also along those lines, Amar,
Obadya, and Rayed argue that the predicate acts the jury found that
they committed -- drug conspiracy and the arson of the Corner Store
-- do not form a pattern of racketeering activity because they had no
relation to each other. The goal of the arson at the Corner Store, these
15
Appellants contend, was to eliminate lawful competition, not to facili-
tate the drug conspiracy.
The substantive RICO statute provides as follows:
It shall be unlawful for any person employed by or associ-
ated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering activity
or collection of unlawful debt.
18 U.S.C.A. § 1962(c). An "enterprise" is a "group of persons associ-
ated together for a common purpose of engaging in a course of con-
duct," which may be proved "by evidence of an ongoing organization,
formal or informal, and by evidence that the various associates func-
tion as a continuing unit." United States v. Turkette, 452 U.S. 576,
583 (1981). This Court has noted that a RICO enterprise is character-
ized by "continuity, unity, shared purpose, and identifiable structure."
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) (internal quo-
tation marks omitted).
A "pattern of racketeering activity" requires"at least two acts of
racketeering activity" occurring within a ten-year period, 18 U.S.C.A.
§ 1961(5) (West 1984), that are related and amount to or pose a threat
of continued criminal activity, see H.J. Inc. v. Northwestern Bell Tel.
Co., 492 U.S. 229, 239 (1989). Predicate racketeering acts are related
if they "have the same or similar purposes, results, participants, vic-
tims, or methods of commission, or otherwise are interrelated by dis-
tinguishing characteristics and are not isolated events." Id. at 240. The
relatedness requirement is satisfied so long as the Government shows
that the predicate acts are related to the affairs of the enterprise, even
if the acts are not directly related to each other. See United States v.
Masters, 924 F.2d 1362, 1366 (7th Cir. 1991); United States v.
Angiulo, 897 F.2d 1169, 1180 (1st Cir. 1990); United States v.
Indelicato, 865 F.2d 1370, 1383 (2d Cir. 1989). Continuity may be
shown by "a closed period of repeated conduct, or. . . past conduct
that by its nature projects into the future with a threat of repetition."
H.J. Inc., 492 U.S. at 241. "In other cases the threat of continuity may
16
be established by showing that the predicate acts or offenses are part
of an ongoing entity's regular way of doing business." Id. at 242.
As an initial matter, we conclude that viewing the record in the
light most favorable to the Government, substantial evidence supports
the conclusion that Appellants acting in concert constituted a racke-
teering enterprise. The Government presented evidence that "the
boys" committed several burglaries and either gave or sold the stolen
goods to Joseph and Abedjalil and that "the boys" sold drugs and
robbed customers at businesses owned by Joseph and Abedjalil. The
Government also presented evidence that Joseph, Abedjalil, and Taw-
albeh used arson to gain insurance money and to intimidate business
rivals, and that they recruited "the boys" to commit these arsons. This
evidence is sufficient for a reasonable factfinder to conclude that
Appellants constituted an ongoing organization with a definite struc-
ture, with Joseph, Abedjalil, and Tawalbeh giving orders and "the
boys" executing them, and that Appellants possessed the shared pur-
pose of enriching the members of the enterprise and preserving the
power of the enterprise.
Viewing the record in the light most favorable to the Government,
we conclude that substantial evidence supports the conclusion that
Joseph was associated with the Abed organization. The Government
introduced evidence that "the boys" burglarized cars in Tolley's Bar
and brought the stolen goods to Joseph for resale at his pancake
house. This evidence is sufficient for a reasonable factfinder to con-
clude that Joseph had an ongoing association with"the boys," and by
implication, with the enterprise. The attempted arson of Central
Motors and the arson of the Jefferson Street Pancake House provide
a further connection between Joseph and the enterprise, namely that
arson was one of the enterprise's favorite ways to get insurance
money and deal with business rivals. The fact that the jury did not
find that any member of the enterprise conspired with Joseph to com-
mit the arson of the pancake house is irrelevant because the RICO
statute does not require that a defendant commit a predicate act with
another individual. Moreover, this arson evidence is sufficient to sup-
port a reasonable factfinder's conclusion that because each predicate
act occurred shortly after Joseph received an eviction notice from the
person about to take possession of his property, these acts were
related in purpose. Moreover, because arson was one of the enter-
17
prise's regular ways of doing business, the continuity requirement
was satisfied. Accordingly, we hold that the Government's evidence
was sufficient to convict Joseph of the substantive RICO offense, 18
U.S.C.A. § 1962(c).
Viewing the record in the light most favorable to the Government,
we conclude that substantial evidence supports the conclusion that the
drug conspiracy and the arson of the Corner Store constituted a pat-
tern of racketeering activity. The Corner Store was a competitor of
Speedway Market, which was owned by Tawalbeh. The Government
presented evidence that the Abed organization engaged in drug deal-
ing and food stamp fraud at Speedway Market. This evidence is suffi-
cient to support a reasonable factfinder's conclusion that the drug
conspiracy and the Corner Store arson were both related to the affairs
of the enterprise because the arson was committed to eliminate a com-
petitor of Speedway Market that threatened the illegal ventures of the
enterprise. Because arson was one of the enterprise's regular ways of
doing business, the continuity requirement was satisfied. Accordingly,
we hold that the Government's evidence was sufficient to convict
Amar, Obadya, and Rayed of the substantive RICO offense, 18
U.S.C.A. § 1962(c).
Finally, the RICO conspiracy statute provides that"[i]t shall be
unlawful for any person to conspire to violate" the RICO statute. 18
U.S.C.A. § 1962(d). "To prove a RICO conspiracy the government
must establish (1) that two or more people agreed to commit a sub-
stantive RICO offense and (2) that the defendant knew of and agreed
to the overall objective of the RICO offense." United States v.
Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998). Because the evi-
dence viewed in the light most favorable to the Government was suf-
ficient to support the convictions of Joseph, Amar, Obadya, and
Rayed on the substantive RICO count, and, moreover, was sufficient
to show that each of these Appellants knew about and agreed to facili-
tate the substantive RICO offense, we hold that the Government's
evidence was sufficient to support their convictions for RICO con-
spiracy under § 1962(d). See United States v. Salinas, 118 S. Ct. 469,
478 (1997); see also United States v. Starrett , 55 F.3d 1525, 1549
(11th Cir. 1995) (holding that because evidence was sufficient to sup-
port defendants' convictions under § 1962(c), and the jury could infer
from the evidence that defendants each manifested an agreement to
18
participate in the affairs of the RICO enterprise through a pattern of
racketeering activity, the evidence was sufficient to support defen-
dants' convictions for RICO conspiracy under § 1962(d)).
B.
Joseph also asserts that the Government's evidence was insufficient
for the jury to find that he committed Racketeering Act Fourteen,
arson of the Jefferson Street Pancake House, and Racketeering Act
Six, attempted arson of Central Motors. With regard to the pancake
house arson, Joseph argues that the evidence adduced at trial revealed
that the owner of the building had a greater motive and opportunity
to commit the arson than did Joseph. In particular, Joseph argues that
he personally did not have an incentive to burn the pancake house to
terminate the lease because the lease was already breached by his fail-
ure to pay rent. Moreover, Joseph asserts that the owner also had keys
to the building and received a direct and significant benefit from the
fire in the form of insurance benefits and proceeds from the subse-
quent sale of the property. With regard to the attempted arson of Cen-
tral Motors, Joseph argues that the only witness who implicated him
in this crime was Ottallah, whose testimony was not credible as evi-
denced by the jury's acquittal of Joseph on Counts Five through
Twelve and of Thaier on Counts One and Four.7 Joseph further argues
that Jones's testimony clearly established that Joseph was not
involved in any manner with the attempted arson of Central Motors.
Viewed in the light most favorable to the Government, the evi-
dence is sufficient to support a reasonable factfinder's conclusion that
Joseph committed the arson of the Jefferson Street Pancake House.
The pancake house's business was failing and Joseph was having dif-
ficulty paying food service creditors. According to the terms of the
lease, if Joseph defaulted he would be liable for the full amount of
rent due. A rent abatement clause, however, provided that if the build-
ing was destroyed by an accidental fire, Joseph would not be in
default and the lease payments would cease. Moreover, Joseph pos-
_________________________________________________________________
7 Joseph also argues that the jury's acquittal of Thaier on Count Three,
conspiracy to commit arson of Central Motors, indicates that Ottallah's
testimony was not credible. In fact, the jury convicted Thaier on Count
Three.
19
sessed a $50,000 insurance policy on the contents of the restaurant.
Joseph also possessed a key to the building and the assistant fire mar-
shal concluded that the arson was an inside job. Finally, the arson of
the pancake house was strikingly similar to the attempted arson of
Central Motors, in that each occurred shortly after Joseph learned he
would be evicted. Accordingly, we hold that the evidence was suffi-
cient for the jury to find that Joseph committed Racketeering Act
Fourteen, arson of the Jefferson Street Pancake House.
Viewed in the light most favorable to the Government, the evi-
dence also is sufficient to support a reasonable factfinder's conclusion
that Joseph was involved in the attempted arson of Central Motors.
Joseph was enraged at the owner of Central Motors for purchasing his
property. Moreover, as previously noted, the attempted arson of Cen-
tral Motors was strikingly similar to the arson of the Jefferson Street
Pancake House. Joseph's argument again rests upon his contention
that the only witness who implicated him in this crime, Ottallah, was
not credible as evidenced by the jury's rejection of Ottallah's testi-
mony with regard to other counts involving Joseph and Thaier. This
Court, however, does not review the credibility of witnesses when
evaluating whether sufficient evidence existed to support a convic-
tion. See United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir.
1997). Moreover, a defendant cannot challenge his conviction merely
because it is inconsistent with a verdict of acquittal on another count.
See United States v. Powell, 469 U.S. 57, 62-64 (1984). As the
Supreme Court noted in Powell, it is possible that inconsistent ver-
dicts are a product of a jury's "mistake, compromise, or lenity." 469
U.S. at 65. Accordingly, we hold that the evidence was sufficient for
the jury to find that Joseph committed Racketeering Act Six, the
attempted arson of Central Motors.
C.
Tawalbeh, Obadya, and Rayed argue that the Government's evi-
dence was insufficient to convict them of using a destructive device
during and in relation to a crime of violence, in violation of 18
U.S.C.A. § 924(c) (West Supp. 1999) and 18 U.S.C.A. § 2 (West
1969), relating to the arson of the Corner Store. These Appellants do
not dispute that the arson itself satisfies the elements of § 924(c).
Rather, Tawalbeh argues that he could not be convicted as a principal
20
because he had no direct involvement with the Molotov cocktail and
could not be convicted as an aider and abettor because he did not
directly facilitate or encourage the use of a Molotov cocktail. More-
over, Tawalbeh asserts, he could not be convicted under a Pinkerton
theory of vicarious liability because the use of a Molotov cocktail was
never discussed in his presence and was not reasonably foreseeable.8
Obadya and Rayed argue that the Government failed to prove that
either of them individually "used" the Molotov cocktail in the arson,
and moreover, they could not be convicted under the Pinkerton doc-
trine of co-conspirator liability because that doctrine applies only to
substantive offenses and § 924(c) is a sentence enhancement provi-
sion.
A defendant may be found guilty of aiding and abetting a § 924(c)
violation if the defendant "participat[es] at some stage [of the illegal
venture] accompanied by knowledge of the result and intent to bring
about that result." United States v. Wilson , 135 F.3d 291, 305 (4th
Cir.) (internal quotation marks omitted), cert. denied, 118 S. Ct. 1852(1998). The defendant need not be present at every stage of the illegal
venture. See id. Indeed, the defendant need not even be present when
the crime is committed to be guilty of aiding and abetting. See United
States v. Ellis, 121 F.3d 908, 924 (4th Cir. 1997). Moreover, contrary
to Appellants' argument, a defendant may be convicted of a § 924(c)
violation on the basis of Pinkerton liability if the use of a firearm
"was in furtherance of the conspiracy and was reasonably foreseeable
to the defendant." Wilson, 135 F.3d at 305.
Viewing the record in the light most favorable to the Government
with regard to Tawalbeh, we conclude that substantial evidence sup-
ports Tawalbeh's conviction for violating § 924(c) under either an
aider-and-abettor theory or a Pinkerton theory. Michael Witt, a cus-
tomer of the Speedway Market, testified that Tawalbeh asked him to
burn down the Corner Store "several times" and told him to use a
Molotov cocktail to do so. According to Chisom, the conspirators had
_________________________________________________________________
8 In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme
Court upheld the conviction of a defendant for acts committed by the
defendant's co-conspirator that were "done in furtherance of the conspir-
acy" and that could have been "reasonably foreseen as a necessary and
natural consequence of the conspiracy." Id. at 647-48.
21
a meeting with Tawalbeh a week before the Corner Store fire and
conversed in Arabic. Amar subsequently translated the conversation
for Chisom, informing him that Tawalbeh wanted the Corner Store
burned because it was taking away business from the Speedway Mar-
ket, that he would pay $2,000 for the job, and that the Corner Store
would be burned with a Molotov cocktail. This testimony is sufficient
to support a reasonable factfinder's conclusion that Tawalbeh partici-
pated at the planning stage in the illegal use of a Molotov cocktail,
had knowledge of the result, and intended to bring about that result.
In any event, under a Pinkerton theory of liability, it was certainly
reasonably foreseeable to Tawalbeh that the conspirators would use
a Molotov cocktail to burn down the Corner Store and that the
destruction of a competitor, the Corner Store, was in furtherance of
the conspiracy. Accordingly, we hold that the Government's evidence
was sufficient to convict Tawalbeh of using a destructive device dur-
ing and in relation to a crime of violence, in violation of 18 U.S.C.A.
§ 924(c) and 18 U.S.C.A. § 2.
Viewing the record in the light most favorable to the Government
with regard to Obadya and Rayed, we conclude that substantial evi-
dence supports Obadya's and Rayed's convictions for violating
§ 924(c) as aiders and abettors. According to Chisom's testimony,
Rayed constructed the Molotov cocktail and drove the conspirators to
the Corner Store, and Obadya served as a lookout during the commis-
sion of the arson. This testimony is certainly sufficient to support a
reasonable factfinder's conclusion that Obadya and Rayed partici-
pated in the illegal use of a Molotov cocktail, had knowledge of the
result, and intended to bring about that result. Because substantial evi-
dence supports Obadya's and Rayed's conviction under an aider-and-
abettor theory, it is wholly irrelevant that neither of them individually
"used" the Molotov cocktail in the Corner Store arson. Accordingly,
we hold that the Government's evidence was sufficient to convict
Obadya and Rayed of aiding and abetting the use of a destructive
device during and in relation to a crime of violence, in violation of
18 U.S.C.A. § 924(c) and 18 U.S.C.A. § 2.
IV.
Finally, several Appellants argue that the district court erred at sen-
tencing. Joseph argues that the district court erred in (1) setting his
22
base offense level at 24, pursuant to U.S.S.G. § 2K1.4(a)(1), and (2)
enhancing his offense level by four levels, pursuant to U.S.S.G.
§ 3B1.1(a). Amar argues that the district court erred in using his food
stamp fraud conviction as a prior offense in calculating the criminal
history portion of his guideline sentence. Finally, Tawalbeh, Obadya,
and Rayed argue that the district court erred in sentencing them to
mandatory, consecutive 30-year sentences under 18 U.S.C.A.
§ 924(c) for using a Molotov cocktail to commit the Corner Store
arson.
To give due deference to a district court's application of the Sen-
tencing Guidelines, we review factual determinations for clear error
and legal questions de novo. See United States v. Blake, 81 F.3d 498,
503 (4th Cir. 1996). With this standard of review in mind, we address
these Appellants' sentencing claims seriatim.
A.
First, Joseph argues that the district court erred in setting his base
offense level at 24, pursuant to U.S.S.G. § 2K1.4(a)(1), based upon
its finding that the attempted arson of Central Motors created a sub-
stantial risk of death or serious bodily injury and that Joseph know-
ingly created that risk. Joseph reasons that the district court erred
because the attempted arson only involved a limited amount of gaso-
line on commercial property, no persons were on the property, and
Joseph instructed the participants not to set the fire until patrons at the
adjacent bar (Tolley's Bar) had left. Joseph contends that his clear
intent was to avoid danger to any customers of Central Motors or Tol-
ley's Bar, and, therefore, because he did not knowingly create a sub-
stantial risk of death or serious bodily injury, the correct base offense
level should have been 20, pursuant to U.S.S.G.§ 2K1.4(a)(2).
Section 2K1.4(a)(1) of the Sentencing Guidelines provides that the
base offense level for arson will be 24 if the defendant knowingly cre-
ated a substantial risk of death or serious bodily injury to any person
other than a participant in the offense. See U.S.S.G. § 2K1.4(a)(1).
The risk includes the risk to fire fighters and other emergency and law
enforcement personnel who respond to or investigate the fire. See
U.S.S.G. § 2K1.4, comment. (n.2). The term"knowingly" is not
defined in the Guidelines. See United States v. Karlic, 997 F.2d 564,
23
569 (9th Cir. 1993). In the past, the Supreme Court has looked to the
Model Penal Code definition of "knowledge" in interpreting a crimi-
nal statute. See Turner v. United States, 396 U.S. 398, 416 n.29
(1970); Leary v. United States, 395 U.S. 6, 46 n.93 (1969). Accord-
ingly, we agree with several circuits that have applied the Model
Penal Code to define "knowingly" in § 2K1.4(a)(1) as being aware
that it is "practically certain" that the criminal act will result in a sub-
stantial risk of death or serious bodily injury. See United States v.
Johnson, 152 F.3d 553, 555-56 (6th Cir. 1998); United States v.
Altier, 91 F.3d 953, 957 (7th Cir. 1996); United States v. Honeycutt,
8 F.3d 785, 787 (11th Cir. 1993); Karlic, 997 F.2d at 569. Under this
standard, an attempted arson of commercial property containing auto-
mobiles with gasoline in their tanks warrants the application of
§ 2K1.4(a)(1), because a resulting fire would be massive and
extremely dangerous to the responding fire fighters. See Altier, 91
F.3d at 957; Honeycutt, 8 F.3d at 788. The application of
§ 2K1.4(a)(1) is also warranted where the fire occurred close to a
nearby dwelling and endangered the dwelling's inhabitants. See
Johnson, 152 F.3d at 557.
In the present case, the Central Motors parking lot contained sev-
eral automobiles, all presumably containing gasoline, and a successful
arson attempt would have created a massive fire that would have
threatened the lives and safety of responding firefighters and police-
men. Moreover, Central Motors was located near Joseph's apartment
complex behind Tolley's Bar, and a fire at Central Motors could eas-
ily have spread to those apartments and injured the residents. It is
therefore irrelevant that Joseph planned to set the fire when nobody
was on the Central Motors property and after all of Tolley's custom-
ers had left. Accordingly, we hold that the district court did not
clearly err in setting Joseph's base offense level at 24, pursuant to
§ 2K1.4(a)(1).
B.
Next, Joseph argues that the district court erred in enhancing his
offense level by four levels, pursuant to U.S.S.G.§ 3B1.1(a), based
upon its finding that he was an organizer and leader of an attempted
arson of Central Motors that included five or more participants --
Joseph, Ottallah, Jones, Amar, and Thaier. Joseph contends that Ottal-
24
lah's testimony, upon which the district court relied, was not credible
as evidenced by the jury's acquittal of Thaier on Counts One and
Four. Joseph argues that the only credible witness, Jones, established
that only four individuals participated in the attempted arson of Cen-
tral Motors, and Joseph was not one of them.
Section 3B1.1(a) of the Sentencing Guidelines provides for an
enhancement of a defendant's offense level by four levels when the
defendant was an organizer or leader of a criminal activity that
involved five or more participants. See U.S.S.G. § 3B1.1(a). Ottallah
testified at trial that Joseph directed him, Amar, Thaier, and Jones to
burn Central Motors. Jones testified that Amar and Ottallah ordered
him and Thaier to slash tires at Central Motors, that he and Thaier fol-
lowed this instruction, and that he, Amar, and Ottallah obtained gas
to burn Central Motors. Although Jones's testimony did not directly
implicate Joseph, the district court could find Ottallah's testimony
credible, see United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.
1995), and a district court's factual finding made on the basis of con-
flicting evidence is not reversible, see United States v. Falesbork, 5
F.3d 715, 721 (4th Cir. 1993). Accordingly, we hold that the district
court did not clearly err in enhancing Joseph's offense level by four
levels, pursuant to § 3B1.1(a), based upon his leadership or organiz-
ing role in the attempted arson of Central Motors.
C.
Amar argues that the district court erred in using his food stamp
fraud conviction as a prior offense in calculating the criminal history
portion of his guideline sentence. Amar contends that because the
food stamp offense occurred during the time the racketeering was
alleged to be occurring, and evidence of this offense was presented
to the jury as evidence of racketeering, the food stamp fraud was rele-
vant conduct that was part of the instant offense, and, thus, should not
have been considered as a prior offense.
Section 4A1.1 of the Sentencing Guidelines provides that a district
court should use a defendant's prior sentence of imprisonment in cal-
culating his criminal history. See U.S.S.G.§ 4A1.1. Section
4A1.2(a)(1) of the Sentencing Guidelines defines a"prior sentence"
as "any sentence previously imposed . . . for conduct not part of the
25
instant offense." U.S.S.G. § 4A1.2(a)(1)."Conduct that is part of the
instant offense means conduct that is relevant conduct to the instant
offense under the provisions of § 1B1.3 (Relevant Conduct)."
U.S.S.G. § 4A1.2(a)(1), comment. (n.1). A conviction is properly
considered a prior sentence under § 4A1.2(a)(1) if the prior sentence
and present offense "involve conduct that is severable into two dis-
tinct offenses." United States v. McManus, 23 F.3d 878, 888 (4th Cir.
1994). Whether the prior sentence and present offense are severable
requires a fact-specific inquiry that requires consideration of "the tem-
poral and geographical proximity of the two offenses, common vic-
tims, and a common criminal plan or intent." United States v.
Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992).
In the present case, Amar's food stamp trafficking conviction is a
severable, distinct offense from the racketeering offense because the
racketeering offense was a complex crime that included a distinct
organizational structure, had numerous participants, and lasted much
longer than the food stamp fraud crime. Moreover, the racketeering
offense and the food stamp fraud crime had different victims and did
not have a common plan. Accordingly, we hold that the district court
did not err in using Amar's food stamp trafficking convictions in cal-
culating his criminal history.
D.
Tawalbeh, Obadya, and Rayed argue that the district court erred in
sentencing them to mandatory, consecutive thirty-year sentences
under 18 U.S.C.A. § 924(c) for using a Molotov cocktail to commit
the Corner Store arson. These Appellants basically reiterate their
arguments, see ante Part III.C, that they cannot be found guilty under
a vicarious liability theory, even by a preponderance of the evidence,
because the Pinkerton doctrine does not apply to a sentence enhance-
ment provision such as § 924(c). These Appellants conclude that their
sentences must be vacated for resentencing.
Section 2K2.4(a) of the Sentencing Guidelines provides that the
term of imprisonment for a violation of § 924(c) is that required by
statute. See U.S.S.G. § 2K2.4(a). Section 924(c)(1)(B)(ii) provides
that a person who uses or carries a "destructive device" during and in
relation to a crime of violence "shall be sentenced to a term of impris-
26
onment of not less than 30 years" in addition to the punishment pro-
vided by the crime of violence. 18 U.S.C.A. § 924(c)(1)(B)(ii) (West
Supp. 1999). A "destructive device" in turn is defined in relevant part
as:
[A]ny explosive, incendiary, or poison gas--
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four
ounces,
(iv) missile having an explosive or incendiary charge of
more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the
preceding clauses.
18 U.S.C.A. § 921(a)(4)(A) (West 1976). A Molotov cocktail -- a
device comprising a bottle, gasoline, and a rag-- is a "destructive
device" under this definition. See United States v. Simmons, 83 F.3d
686, 687-88 (4th Cir. 1996) (holding that Molotov cocktail was a "de-
structive device" under a virtually identical definition in another stat-
ute).
We have already concluded that viewed in the light most favorable
to the Government, the evidence is sufficient to support the convic-
tions of Tawalbeh, Obadya, and Rayed under § 924(c) for using a
Molotov cocktail in the arson of the Corner Store under either an
aider-and-abettor theory or a Pinkerton theory. See ante Part III.C.
Having upheld their convictions, we conclude that the district court
did not clearly err in finding them guilty under§ 924(c) by a prepon-
derance of the evidence. Accordingly, we hold that the district court
did not clearly err in imposing consecutive thirty-year sentences on
Tawalbeh, Obadya, and Rayed.
27
V.
For the reasons discussed, we find no error at the trial or sentencing
phases of the criminal proceeding against Appellants. We therefore
affirm Appellants' convictions and sentences.
AFFIRMED
28