United States Court of Appeals, Seventh Circuit.
UNITED STATES of America, Plaintiff-Appellee,
Jawdat Abdel RAHMAN, Defendant-Appellant.
F.3d 1331 (7th Cir. 1994).
Argued Jan. 6, 1994.
Decided Sept. 13, 1994.
Before CUDAHY, COFFEY, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
The defendant, Jawdat Abdel Rahman is a 65-year old
Arab immigrant who was born in (what was then) Palestine.
He became a naturalized citizen in 1988. Rahman has owned
or operated a number of stores on the south side of Chicago since
then. He speaks mainly Arabic and indicates that he has a
slight understanding of English. When Rahman learned that
his son and son-in-law had been "ripped off" by a friend named Yousef
Haik in a deal involving hijacked Christmas merchandise, Rahman
demonstrated considerable verbal outrage. His vehement
public comments regarding Haik (such as threatening to "pull his hair
from his beard") ultimately came to the attention of the FBI. Rahman
was contacted by an undercover agent posing as a "hit man."
As a result of Rahman's conduct recounted below, he was charged with
soliciting a violent felony, attempted extortion and
robbery. We now address his appeal of his conviction on all
On November 15, 1991, a truck driver was
assigned to transport a trailer load of House of Lloyd Christmas
novelties between the Burlington Northern Railroad yard and the Conrail
Railroad yard in Chicago. The driver picked up the load,
but never delivered it. Instead, he sold the load to Nashat
Rahman ("Nashat") and Ahmad Mohammed, the defendant Jawdat Rahman's son
and son-in-law. After Nashat and Mohammed had unloaded the
merchandise, the driver abandoned the trailer in the parking lot of a
Nashat and Mohammed brought their trailer of
merchandise to their friend, Yousef Haik, the owner of a grocery
store. Mohammed asked Haik to take a share of the load, and
to help store it. Haik, who was planning to relocate his
business to Cincinnati, agreed to allow Nashat and Mohammed to store
the load in a bakery space he had rented across the street from his
The load became an albatross.
Nashat and Mohammed tried to sell the entire load to a man from
Detroit, but the deal fell through. At the end of November,
Mohammed suggested that Haik take the load to Cincinnati, open a store,
and attempt to sell the goods there. Haik agreed, for a
one-third share of the profit. Mohammed gave Haik $1600
cash to transport the load to Cincinnati and rent a store.
The Christmas novelties did not sell
well. By the end of December, Haik had only sold
$1200-$1500 worth of the merchandise. Finally, Haik rented
a storage locker in Cincinnati, and stored the unsold goods
there. He did not contact Nashat or Mohammed to tell them
about the storage, nor did he give them any of the money from the
sales. In fact, Nashat and Mohammed did not hear from Haik
Meanwhile, Nashat and Mohammed were working at the
Windy City Food and Liquor store, which Rahman owned.
Nashat and Mohammed ran the store, and paid rent to Rahman each
month. In the first week of December 1991, Rahman came to
the store to collect his rent. Nashat and Mohammed were
unable to pay Rahman because they had spent their rent money on the
Christmas novelties. Nashat assured Rahman he would have the rent in
three or four days. When Rahman later returned for the
rent, Nashat and Mohammed still could not pay, and they were forced to
explain to Rahman what had happened with Haik, the merchandise, and
their money. Rahman was outraged. Nashat
testified at trial that Rahman threatened to disown him, kill him, and
fire him from his job.
FBI Informant Mahmoud Samara
In mid-January 1992, Rahman was still ranting
about the incident. Mahmoud Samara, a friend of Mohammed's, came
to the Windy City Food & Liquor store to sell baby
formula. As Samara walked into the store, he overheard
Rahman speaking loudly to Nashat, Mohammed, and a third person, about
Yousef Haik. Samara heard Rahman say that he was "going to
finish Yousef," "going to pull his hair from his beard," and "let his
kids live without their father." Mohammed went behind the cash register
to meet Samara, and rebuked Rahman, saying, "you want to tell the story
for everybody?" Rahman then calmed down.
Samara asked if anyone wanted to purchase
milk. Rahman asked Samara where he got the milk, and Samara
responded that he got it in Ohio. Upon hearing this, Rahman
called Samara "son," poured him coffee, and proceeded to tell Samara
that he, Nashat and Mohammed had bought a trailer load of merchandise
and stored it at Haik's place in Ohio. He gave Samara
Haik's address and offered him $5,000 to locate Haik, and report back
to him. Rahman told Samara that after Samara had reported
on Haik, Rahman would himself go to Ohio and "put a bullet in [Haik's]
Samara wanted to earn the money, so he went to Ohio
to look for Haik. What Rahman did not know, however, was
that Samara was also a government informant. At trial, Samara
testified that he intended to find Haik, report to Rahman, collect the
money, then turn Rahman in to the FBI. Samara went to Ohio,
but was unable to locate Haik.
Upon Samara's return to Chicago,
he called the FBI and told an agent the story of how defendant had told
him about the trailer of merchandise, made death threats against Haik,
then offered him money to find Haik in Ohio. On February 5,
1992, FBI agents sent Samara to Windy City Food & Liquor equipped
with a recording device. The agents had instructed Samara
to tell Rahman that Samara's wife's cousin was a Mafia hit man, and to
offer to introduce Rahman to the hit man.
Samara entered the store and spoke to
Rahman. According to the transcript of their conversation,
translated from Arabic, Samara told Rahman that he had been in Ohio,
and that Haik was rumored to be in Michigan. Samara said
that he could obtain Haik's new address in a week. Rahman
said, "Finish him off completely and, I don't want any money."
Samara then told Rahman that his wife's cousin
worked with the Mafia. Samara explained, "This guy will get
you rights [meaning, your share of the merchandise], he will kill him
completely." He then asked, "Do you want me to bring him,
so that you can meet him?" Rahman agreed.
Rahman told Samara that this cousin could have a
third of the merchandise if he could secure Rahman's
"rights." Samara said, "By God he will come here just like
a shoe because he had ripped off some people," to which Rahman replied,
"Many, what do I have with other people, all I want is what is
rightfully mine. I just want my entitlement."
At the end of the conversation, Samara said, "O.K.,
I have to go now, I'll pass by the day after tomorrow with the young
man and have you meet him and you can talk to him, O.K.? ... And
you see what he tells you." Rahman said, "But I want to know where the
man is." Samara asked, "Do you want him to finish him
off?" Rahman replied, "After I get my rights he can finish
him off completely.... And he can have an extra $5,000."
FBI "Hit Man" meets with Rahman
A week later, on February 12, 1992, Samara visited
Rahman with FBI Special Agent Henke, who was posing as a hit man named
Don. Henke wore a recording device. The
February 12 recording was partly in Arabic and partly in
English--Rahman spoke to Henke in rudimentary English, but to others in
Arabic. Samara introduced Henke as "the guy who will look
for" and "find" Haik. Rahman immediately began to blurt out
his predicament with the trailer of merchandise to Henke.
Rahman proposed to Henke:
I wanna pay nothing okay.
If you get it this guy, okay, get it the merchandise okay from him the
money, okay, I give you, if you take thirty thousand dollars, I give
you ten thousand dollars.... If you get nothing ...
At which point, Henke interrupted, "I kill people
for a living. Now [Samara] here tells me you want somebody
dead, is that right? Yes or no?" Rahman
responded, "Uh huh yes." Moments later, Samara explained to
Rahman in Arabic, "If this guy says that he'll get him for you, then he
will." Rahman said, "What do I need with him?
All I want is my money." Then Rahman added, "Now if he
brings his head, what am I going to gain? I want my rights,
he cheated me, he can have the third, a third of the amount that he
The remainder of the conversation continued in a
similar fashion, with Henke repeatedly trying to propose murder or
violence, and Rahman responding with non sequitur statements regarding
the market value of the goods or what percentage Henke would get if he
retrieved the merchandise.
Henke told Rahman that he charged $5,000 for his
services, $2,500 of which would have to be paid up front.
Rahman responded, "I tell they uh, Mahmoud ... okay, that trailer he
take the trailer, you know that.... I don't wanna want this guy
die right now, I want the money. If he get it the money,
fifty thousand, take sixteen, seventeen thousand. If you
get it thirty thousand, get it ten thousand." Confused,
Henke proclaimed, "Oh I'm not, I'm not a bill collector."
He then asked Rahman to clarify whether he wanted Haik murdered or his
legs broken. Rahman answered, "I don't want no one to kill
him, I want the money."
Again, Henke later said to Rahman, "the reason I'm
here is, he told me you wanted somebody dead." Rahman
retorted, "No I don't no one dead, yet." Henke asked Rahman two more
times whether Rahman wanted him to kill Haik. Each time, Rahman
emphatically responded that he did not, but that Henke could keep
one-third of whatever he recovered.
Henke, however, still was not finished trying to
solicit Rahman. He asked Rahman, "how do you expect to
collect the money? What do you want me to do to the
guy? Uh? You want me to break his legs?
You wanta kneecap him? You want me to beat him up, break a few ribs,
what do you want me to do?" Then he said, "my standard fee is five
thousand dollars to kill somebody, not to collect, to
kill." Rahman responded again, "I don't want to kill."
Rahman then explained that he would not hire Henke
to kill Haik, because if he wanted to hire a hit man, he could get
someone from the neighborhood to do the job for $200. Henke
said, "you're not going to pay me two hundred dollars.... I'll
walk, I'll walk away." Henke told Rahman to think the
situation over, and talk to his family about the proposition Henke had
Toward the end of the conversation, Rahman said,
"Excuse me. If you break her leg ... or break her har[sic]
arm or, something from her body, that's sixty thousand
dollars." Henke responded, "Alright." Then, the
following exchange occurred:
RAHMAN: Talk to the police, you
call the police, is that money from eh, somebody else, you call
somebody, you break my neck or break arm, just ... after I get it the
Henke then closed the conversation by telling Rahman
a final time that he would need $2,500 up front to kill Haik, and that
he had no interest in obtaining a percentage of the
merchandise. Rahman again responded that he promised that
Henke would get twenty thousand if he could retrieve sixty thousand
dollars. Henke said, "Alright. Send [Samara]
out. Go back to [Samara] when you decide."
Rahman indicated that he would, and departed from Henke.
HENKE: Oh, I see.
RAHMAN: I want die.
HENKE: Alright. Alright. Now we're, okay.
RAHMAN: I, I don't wanna to break her neck, if I broke ...
RAHMAN: If I go ...
HENKE: So you want me to get the money and then kill him as soon as he gives me ...
RAHMAN: Uh get the money ...
RAHMAN: ... kill him.
Haik Cooperates with FBI and Poses for Abduction Photo
After the February 12 meeting between Henke and
Rahman, the FBI located Haik and the Christmas merchandise in
Cincinnati. Haik admitted to participating in the purchase
and sale of the goods, and agreed to cooperate with the government's
investigation. The FBI proceeded to photograph Haik wearing
a blindfold and holding a Cincinnati newspaper, so that it would appear
that Haik was being held hostage. The FBI also took Haik's
passport, as further evidence of Haik's captivity.
Rahman Learns of "Abduction" of Haik from FBI "Hit Man"
Rahman never contacted Samara or Henke, nor
did he evince any intention to pay Henke the requisite $2,500 up front
money. Notwithstanding, on February 26, Henke turned up at
the Windy City store uninvited, again wearing a recording
device. Rahman was not at the store.
Instead, Henke spoke to Nashat. Mohammed
was also present at the store. Henke told Nashat that
through a stroke of luck, he had found Haik and the load.
He said, "I talked to your father two weeks ago, alright.
He never got back to me. I found this guy on my
own." Henke represented to Nashat that "his boys" were
holding Haik hostage, and he showed Nashat Haik's passport and the
staged photographs of Haik. Nashat appeared
stunned. Henke declared, "Yeah, my guys are holdin'
him.... The deal is this. If, and I'm a business man,
alright? This motherfucker is gonna die either way, whether
you pay me or not. Now, I want you to understand that."
Bewildered, Nashat answered, "See, what I don't
understand, is, let me ask what's happening like.... See like I
know what's my, like, see me didn't say nothing to you, my father while
I was listening.... I wanna know what's happening,
okay?" Henke then explained, "what your dad told me, is
that, what I want you to do is find the guy, get my stuff, go to him, I
want you to get my sixty thousand dollars. He says the load
was worth one hundred twenty thousand dollars. He saids
[sic] get my sixty thousand dollars and kill the guy, and I said Abu,
look...." Nashat interrupted, "No see like my father won't ...
(unintelligible) ... Whatever my father told you, let me told you
like this, you heart, you got heart, right? You got heart."
Nashat telephoned his father, spoke in Arabic, and
then handed the phone to Henke. (Only Henke's side of the
conversation was recorded). Henke asked Rahman if Nashat
had told him about the passport and photographs he had shown
Nashat. Henke told Rahman that his "boys" were holding
Haik, and that the longer they held him, the greater the problem they
would have. Henke then began to complain that he had still
received no money up front. He said,
So, I mean what do you think's fair up front here? Say, a
thousand, fifteen, two? Okay. Right.
Right. Uh hmm. Uh hmm. Yeah, now I
understand, I, I understand Abu, but I'm a businessman too,
see. And right now I'm in the driver's seat. I,
I need some money up front. I got some costs here and I got
some people that are working for me. Thousand sounds fair
... Well, well how do you feel about a thousand up
front. I need something up front for my boys.
And then we'll work out with the load later.... I mean I wanna, I
want something in hand. Like you know, right
now. I know you can do that. Right,
right. Uh, Abu I, I, I understand that, but I want
something in my hand right now.... That's fair. Right. You
give me five. Nashat? Alright hold on.
Henke testified that during the phone conversation,
Rahman again tried to explain that Henke was to get one-third of
whatever he could retrieve, but then finally agreed to come to the
store with $500.
Henke went outside the store to wait for
Rahman. He called the awaiting agents and told them, "Hook,
line and sinker boys. He's going for a lousy five but uh,
if he takes it we'll go.... Just talked to the old man, yeah.
Yeah they're gonna give us a little something up front, it's not a lot,
but hey. Then we're gonna take a ride in the truck and uh go get
the merchandise." Henke then stepped back inside the store and
spoke with Nashat. Nashat suggested to Henke that he should
give Haik a chance to live, if Haik pays the money. Henke
talked about bringing the merchandise back, but Nashat said that they
did not want the goods back.
When Rahman arrived at the store, Henke showed him
the passport and photographs. He told Rahman, "You, it's
your call. We go get the money and everything's
okay. What I'm saying is right now my boys are in trouble
holding this guy, you know what I mean." Rahman responded,
"I only wanted, ... you know eh, this I can, you have family, you
know.... has family, you want easier family, I don't want this guy die,
Soon thereafter, Mohammed entered the
conversation between Henke and Rahman, and interjected, "Excuse
me, excuse, what's your name? ... Don. Uh, er, you know
what Don, don't hurt the man." Henke said,
"Alright." Mohammed continued, "Let me tell you
something. Don't hurt the man, Abu Nashat or Nashat ... the
son uh, no ... you be, go over to him, tell this my stuff."
The remainder of the taped
conversation reveals that Nashat took over the negotiations with Henke,
and that Rahman himself said very little. We highlight the
portions of the conversation in which Rahman participated. Nashat
reiterated that Henke should allow Haik to live, and give him a chance
to come up with the money. Nashat pleaded, "Just like
this. Don't, the reason I told you ... is everybody got
family. Don't hit the man. Don't kill
him. Everybody got heart, everybody it's hard, like the, don't
kill him the man." Henke asked, "Well, what about up front money
here? Before I go over. Cause the guy, I, I
need something up front." Rahman said, "That's no
problem." Nashat piped in, "And, and the man leave him, and and
the man, give him chance." Rahman repeated, "Okay, no
Henke explained to Rahman and Nashat that Haik
believed he had been kidnapped because he had stolen the Mafia's
merchandise. Rahman said, "Tell him that's my
merchandise." Henke recommended instead that he would hold
Haik at gunpoint and escort him to the bank for the money.
Henke said, "That's what's gonna happen. Tomorrow he's
gonna make a withdrawal. That's how we're gonna get the
money. And he better not fuck up. And if he
fucks us, hey, I don't...." At this point Rahman exclaimed, "No
one fuck him up, no, no good."
Henke demanded his up front money again. Immediately after Rahman's last comment came the following exchange:
HENKE: No, alright. Thousand ...
RAHMAN: Just take the money.
HENKE: ... thousand up front and I'm outta here.
RAHMAN: Okay I give you the five hundred dollars now. It's just in my pocket I give it to you.
NASHAT: Lis ... listen my man, don't kill him. Leave. Leave him alone.
RAHMAN: After I gave the money ...
NASHAT: ... leave him alone.
Nashat then asked Henke to bring him along to see
Haik in Cincinnati. The men negotiated whether they would
accept a check from Haik. Henke said he would not accept a
check. Rahman tried to convince Henke that a check would
suffice, saying, "But put it money with the bank. Maybe
he'll cancel it the check. Go to the bank. I
cash it this check. After I cashed the check, okay?
... Tell him bye-bye.... Just don't, don't hit him...."
Finally, Nashat advanced to Henke the idea of
"scaring" Haik, letting him go, and giving him several days to procure
the money. At no time during the entire conversation did
Rahman himself suggest violence or threats, or ask to accompany Henke
to Cincinnati. Rahman paid Henke the $500.
Henke left the store, and told the other agents, "It's a home
run.... Home run world ain't it," which was a code signal to
initiate arrest. The FBI agents arrested Rahman.
Rahman was indicted on three counts. Count I charges
Rahman with solicitation of a person to extort and rob a second person
in violation of 18 U.S.C. § 373. Count II
charges Rahman with attempted extortion of $60,000 from a person
through the wrongful use of actual and threatened force, violence and
fear in violation of 18 U.S.C. § 1951. Count III
alleges attempted robbery of $60,000 from a person by means of actual
and threatened force, violence, and fear in violation of 18 U.S.C.
Rahman argues that there was insufficient evidence
to convict him of solicitation, attempted extortion, and attempted
As we have often stated, defendants who seek to have
their convictions reversed on the basis of insufficient evidence carry
a heavy burden. We review the evidence in the light most
favorable to the government, and reverse only if we determine that no
rational jury could have found the defendant guilty beyond a reasonable
doubt. United States v. Jean, 25 F.3d 588, 595 (7th
Cir.1994). We have noted however, that our sufficiency of
the evidence standard does not require the defendant to demonstrate
that no evidence at all supports the conviction, but rather that the
evidence cannot support a finding of guilt beyond a reasonable
doubt. United States v. DeCorte, 851 F.2d 948, 952 n. 2 (7th
Cir.1988). The Supreme Court has held that a "mere modicum"
of evidence may satisfy a "no evidence" standard; however, it could not
by itself rationally support a conviction beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979).
Subsection (a) of 18 U.S.C. § 373 provides, in pertinent part that:
Whoever, with intent that another
person engage in conduct constituting a felony that has as an element
the use, attempted use, or threatened use of physical force against
property or against the person of another in violation of the laws of
the United States, and under circumstances strongly corroborative of
that intent, solicits, commands, induces, or otherwise endeavors to
persuade such other person to engage in such conduct, shall be
The government alleged that Rahman solicited Henke
to extort and rob Haik. Thus, the government was required to show
two elements. First, the government had to show, with
"strongly corroborative" circumstances, that Rahman intended for Henke
to extort and rob Haik of $60,000. Second, the government
had to show that Rahman solicited, commanded, induced, or otherwise
tried to persuade Henke to carry out the extortion and
robbery. See United States v. Buckalew, 859 F.2d 1052, 1053
(1st Cir.1988). We do not believe that the evidence is
sufficient to support either element.
For clarity, we summarize the evidence against
Rahman before we examine the evidence in detail. Rahman was
angered by Haik's actions and belligerently voiced his ill will toward
Haik. FBI agent Henke, posing as a Mafia hit man, attempted
to get Rahman to hire him to kill or rob Haik. Rahman spoke to Henke
and sought to use Henke as a bill collector. Henke
explained that he could only be hired to kill or maim Haik.
Henke told Rahman that $2,500 had to be paid up front for Henke to kill
Haik. Henke concluded the discussion by telling Rahman, "go
back to [Samara] when you decide." After that meeting, Rahman never
contacted Samara or took any action to hire Henke. Two weeks
later, Henke appeared and told Rahman that he had kidnapped Haik and
retrieved the goods, on his own initiative. Rahman and his
son were surprised that Henke had done anything, since Rahman had
neither spoken with Samara or Henke, nor had he paid the supposedly
requisite up-front money. Henke then demanded money from Rahman for
services rendered, and Rahman paid him. Rahman and Nashat
requested that Henke spare Haik's life, since they had paid Henke as
requested. Nashat then suggested that they might as well
get the money from Haik, perhaps by "scaring" him. Rahman
said nothing about "scaring" Haik; however, Rahman spoke one
sentence regarding acceptance of a check from Haik, which indicated
that he was still interested in retrieving the money from Haik.
With this evidence, the government has not proven
beyond a reasonable doubt Rahman's intent to extort and rob Haik, nor
have they proven his intent to solicit Henke to perform those crimes of
violence. During the first meeting between Rahman and
Henke, Henke repeatedly asked Rahman if Rahman wanted him to kill or
beat Haik. Rahman clearly denied wanting to kill
Haik. Rahman also never acquiesced to any violence against
Haik, nor did he affirmatively suggest that Henke commit any violent
act. He promised only that Henke could have a third of
whatever amount of money he could retrieve from Haik.
What Rahman exactly said during this first meeting,
however, is beside the point. The meeting did not end with
an agreement between Rahman and Henke. Henke required Rahman to contact
him through Samara, and pay $2,500 in up front money, before he would
kill or rob Haik. For two weeks Rahman did not contact
Henke, as he was instructed to do. Henke admitted during
the second meeting that Rahman had not gotten back to him, and that he
had chosen to forego the required $2,500 in up front money by capturing
Haik on his own initiative. Thus, from the first conversation, there
was no direct evidence that Rahman even contemplated robbery or
extortion of Haik. More importantly, there was no evidence
at all that Rahman intended to solicit Henke to rob or extort Haik.
At the second meeting, both father and son were
clearly surprised that Henke had kidnapped Haik without being asked or
paid to do so. Rahman believed that Henke had, on his own,
already accomplished the task of frightening Haik and retrieving the
merchandise, by kidnapping him and telling him that he had angered the
Mafia. Therefore, at the time of the second meeting, it was
impossible for Rahman to have intended, then persuaded Henke to carry
out something Henke had already eagerly done without their knowledge or
Furthermore, the transcript demonstrates that Rahman
and Nashat were afraid that Henke would kill Haik, as he threatened to
do whether or not Rahman paid Henke any money. Rahman and
Nashat both pleaded with Henke not to kill Haik, not to hurt him, and
to release him. Under the circumstances, it was not
unreasonable for Rahman to have paid Henke the $500 Henke demanded.
Indeed, in Henke's own words, he was "in the driver's seat," being a
Mafia hit man who had just kidnapped someone and who had "boys" who
needed money for their expenses. Rahman instructed Henke to "just
take the money," with Nashat adding that Henke should then just "leave
[Haik] alone." Thus, even viewed in the light most
favorable to the government, the $500 payment did not tend to prove
Rahman's intent to solicit Henke to carry out a crime of violence.
Instead, the payment appears to have been Rahman's attempt to appease a
hit man who, having already committed the crime of violence, was
demanding remuneration and, at the same time, was threatening to kill
The government further points to several sentence
fragments in the transcript spoken by Rahman, to support its contention
that Rahman intended and solicited Henke to extort and rob Haik. Our
review of the record, however, reveals that no reasonable jury could
have based a conviction on a strict literal interpretation of a few
words of Rahman's rudimentary English. Rahman had a
tendency to answer Henke's questions by simply repeating what Henke
said. Furthermore, after Rahman answered, "Uh huh yes," to
Henke's question, "you want somebody dead, is that right?,"
Rahman immediately turned to Samara and explained in Arabic that he did
not want the hit man to kill Haik. The record as a whole
overwhelmingly contradicts the contents of these few fragments taken
The government's argument that
Rahman paid Henke the $500 because he intended for Henke to "scare" the
money out of Haik is also unfounded. Nashat, not Rahman,
toward the end of the second meeting was the one who suggested that
Henke scare Haik. The fact that Rahman may still have
wanted to get the money from Haik at the second meeting may, as the
government puts it, illustrate his "greed"; however, it is too
meager to support a conviction which requires Rahman to have, beyond a
reasonable doubt, both intended and solicited Henke to rob and extort
Haik. Certainly there is a distinction, for example,
between a person who hires an assassin to kill his spouse so that he
may collect the insurance proceeds, and a person whose spouse is
murdered without his involvement, but who then cheerfully collects the
insurance proceeds. The former person is guilty of
solicitation; the latter only of poor character and avarice.
Rahman's behavior with regard to the trailer of
merchandise is reprehensible. However, we must conclude that even
in the light most favorable to the government, there was scant evidence
to show, let alone meet the statutory requirement to strongly
corroborate, Rahman's intent to have Henke rob and extort
Haik. Similarly, there was insufficient evidence for a
rational jury to find, beyond a reasonable doubt, that Rahman tried to
induce Henke to carry out those crimes.
Counts Two and Three--Extortion and Robbery
Because we have held that there is insufficient
evidence for a jury to find that Rahman intended for Henke to rob and
extort Haik, we must also reverse Rahman's convictions for attempted
extortion and attempted robbery.
The federal provision prohibiting extortion and robbery defines those terms in the following way:
(1) The term "robbery" means the
unlawful taking or obtaining of personal property from the person or in
the presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate or future,
to his person or property....
18 U.S.C. § 1951(b)(1)-(2).
(2) The term "extortion" means the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.
Certainly, the government did not present sufficient
evidence to convict Rahman of attempted robbery. Henke
repeatedly asked Rahman how he should collect the money from Haik, if
not by murder, in case Haik refused to pay willingly.
Rahman never responded in any way that indicated that he intended Henke
to obtain the money against Haik's will by means of force or threatened
force. In fact at the second meeting, when Henke suggested
escorting Haik to the bank at gunpoint, Rahman responded, "No one fuck
him up, no, no good." Even Nashat, who suggested Henke "scare"
Haik, then free him to procure the money, never suggested that Henke
should take any steps to obtain the money against Haik's will through
force or threats of force. No rational jury could have
found that Rahman intended to rob Haik.
Finally, for the reasons we have discussed, we do
not believe that a rational jury could have found that Rahman intended
to extort Haik by inducing him to consensually relinquish $60,000
through threatened force, violence, or fear. There was no
evidence that Rahman intended to hire Henke to threaten Haik at all
after the first meeting. At the second meeting, Rahman
could not have intended for Henke to extort the money from Haik,
because he believed that Henke had already kidnapped Haik, and extorted
or robbed him of the merchandise. The only modicum of
evidence against Rahman was that he mentioned cashing a check he
believed Haik would tender after Henke released him. In
light of the tense and unorthodox circumstances created by the
preemptive "kidnapping" of Haik, Rahman's failure to defy a Mafia hit
man's demand for money and instruct him to undo the effects of the
kidnapping, can hardly be the basis of a criminal conviction.
For the foregoing reasons, the convictions of Jawdat Abdel Rahman on Counts I, II, and III are