United States v. Thomas Michael Khalil

Citations: 279 F.3d 358; 58 Fed. R. Serv. 908; 2002 WL 44214; 2002 U.S. App. LEXIS 530Docket: 00-3626

Court: Court of Appeals for the Sixth Circuit; January 9, 2002; Federal Appellate Court

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Thomas Michael Khalil was convicted of multiple offenses, including conspiracy to conduct racketeering activities and two counts of marijuana distribution, as part of his role as the national president of the Avengers Motorcycle Club. The U.S. Court of Appeals for the Sixth Circuit upheld his sixty-month prison sentence and three years of supervised release. 

The four-count indictment, returned by a federal grand jury on September 15, 1999, charged Khalil with conspiring to conduct the affairs of the Avengers through racketeering, attempting to commit a violent crime in aid of racketeering, and two counts of marijuana distribution. The allegations were based on a four-year investigation into motorcycle gangs in Lorain County, Ohio, indicating that Khalil had agreed to participate in various illegal activities, including drug distribution and mail fraud.

The Avengers Motorcycle Club operates nationally with a structured hierarchy, and members are expected to follow directives from club officers under threat of discipline or violence. The trial featured significant evidence of Khalil's involvement in drug trafficking, including his provision of large quantities of marijuana to a fellow member, Michael Cristarella, and subsequent drug sales to an informant, Dale Frederick, after their relationship deteriorated. Khalil’s convictions and sentencing were affirmed by the appellate court.

Evidence presented at trial highlighted planned violent actions by the Avengers against the Iron Coffins motorcycle club, stemming from a feud initiated in the early 1990s after an Iron Coffins member shot an Avengers member. The Avengers temporarily expelled the Iron Coffins from Lorain County, but in 1998, Iron Coffins members returned, signaling their intent to establish a presence in the area. This prompted the Avengers to plot retaliatory actions.

On July 29, 1998, Avengers members armed with various weapons attempted to locate and assault Iron Coffins members at a tavern, but local law enforcement was tipped off and prevented the attack. A similar plan on August 26, 1998, was thwarted by police intervention after Avengers members gathered to execute assaults at different bars in Elyria, Ohio. 

During a national meeting on November 21, 1998, Avengers leader Khalil urged members to escalate their actions against the Iron Coffins, expressing disappointment at their inaction. The following day, local chapter president DeAngelo reinforced this sentiment, stating they were "at war" with the Iron Coffins.

Khalil later testified in his defense, admitting to two marijuana distributions but denying broader drug trafficking or ordering assaults against the Iron Coffins. He claimed his drug dealings were coerced by Frederick’s persistent requests and his sympathy for Frederick's health issues. Ultimately, Khalil was convicted on all charges and sentenced to sixty months in prison, subsequently filing a timely appeal on May 10, 2000. One of his appeal issues concerns the alleged improper admission of hearsay evidence during the government's redirect examination of FBI agent John Moran, which is subject to an abuse of discretion standard in appellate review.

During cross-examination, Khalil's attorney alleged that the FBI had inappropriately targeted Khalil due to his role as the national president of the Avengers Motorcycle Club and that they sent an informant, Frederick, to entrap him as their investigation lacked sufficient evidence. On redirect, the government questioned Agent Moran about his prior interviews with witnesses and discussions with other agents regarding Khalil's activities in 1997 and 1998. Agent Moran confirmed that he was aware Khalil was supplying marijuana and cocaine to the Avengers in Ohio and Michigan during that time. The defense objected, claiming this testimony was inadmissible hearsay, as it referenced out-of-court statements from unidentified individuals. The government contended that the testimony was necessary to counter the defense's implications of improper targeting by the FBI. The district court overruled the objection, admitting the testimony. 

The court found that Agent Moran's statements were not hearsay because they were offered to explain the FBI's rationale for investigating Khalil rather than to prove that Khalil was engaged in drug trafficking. The testimony was deemed relevant to demonstrate the agent's state of mind, as the defense had raised the issue of improper targeting. The court noted that when one party introduces potentially prejudicial evidence, the opposing party may provide rebuttal evidence to clarify the context. Hence, Agent Moran's testimony was appropriately admitted as relevant nonhearsay evidence.

Khalil argues that the district court wrongly denied his request for a jury instruction on the entrapment defense. Jury instructions are evaluated collectively to ensure they adequately present the issues and law to the jury. A refusal to give a requested instruction is reversible only if the instruction is a correct legal statement, not substantially covered by the actual instructions, and crucial to the defendant's case. The Supreme Court states that a defendant is entitled to an entrapment instruction if there is enough evidence for a reasonable jury to find entrapment. An effective entrapment defense requires proof of government inducement and the defendant's lack of predisposition to commit the crime. Khalil failed to provide sufficient evidence to support the lack of predisposition element. Predisposition assesses whether the defendant acted as an unwary innocent or an unwary criminal, with several factors considered, including the defendant's character, the origin of the criminal suggestion, profit motives, reluctance to commit the crime, and the nature of government inducement. If evidence clearly shows predisposition, the court may deny an entrapment instruction. In a precedent case, Elder, the court found the denial of an entrapment instruction appropriate due to prior evidence of the defendant's involvement in criminal activities.

Extensive evidence presented at trial linked Khalil to drug trafficking. Frederick, a former dealer, testified about a supplier-dealer relationship between Khalil and Cristarella, detailing an instance in 1995 where Khalil was seen giving marijuana to Cristarella, who then distributed it to Frederick. The government provided tape recordings of Khalil discussing his drug dealings, including pricing and profits, such as selling marijuana for $800 a pound and his associates selling for $1,200. Khalil also expressed support for others in the drug trade, indicating he facilitated their dealings.

On appeal, Khalil cited only his own trial testimony to argue against predisposition but did not deny the recorded statements. He claimed he engaged in drug trafficking only twice with Frederick, asserting that his recorded statements were meant to dissuade Frederick from drug activities. However, he did not explain how discussing drug profitability would discourage Frederick, and his statements suggested an eagerness to engage in drug sales. This lack of credible explanation and self-serving denial did not provide a sufficient basis for an entrapment instruction.

Additionally, during jury deliberations, the jury sought clarification on whether finding Khalil guilty of two counts of marijuana distribution satisfied the requirements for a guilty verdict on a racketeering charge or if they needed to find him guilty on all predicate offenses. The trial judge attempted to clarify his previous instructions in response to the jury's question.

Count 1 of the indictment accuses Khalil of conspiracy to engage in an enterprise through racketeering, which includes: A) various offenses related to controlled substances, B) activities involving stolen vehicles, and C) illegal gambling. The court clarified that to convict Khalil, the jury must find he or a co-conspirator committed at least two racketeering acts related to controlled substances, making it unnecessary to consider the other two subsections unless this requirement was met. Khalil objected to the district court's re-instruction to the jury, arguing it improperly suggested that a conviction for marijuana distribution alone sufficed for a RICO conviction. The district court's jury instructions are reviewed for abuse of discretion and must not be confusing, misleading, or prejudicial. The court determined that the jury's inquiry indicated they understood the need to find independent RICO elements beyond just the marijuana distribution. The judge's re-instruction emphasized that a guilty finding on marijuana distribution must be accompanied by the requisite RICO elements, which had been made explicit in earlier instructions. Overall, the judge's guidance did not prevent the jury from considering whether Khalil's marijuana activities were separate from the alleged RICO enterprise.

Khalil contends that the evidence was inadequate to uphold his conviction for Violent Crime in Aid of Racketeering Activity (VCAR), specifically regarding Count Two, which accused him of aiding and abetting an attempted assault by the Avengers on the Iron Coffins. He argues that the trial evidence failed to demonstrate either that an assault attempt occurred or that he provided assistance in any such attempt. Although Khalil initially challenged the evidence sufficiency under Rule 29 at the end of the government’s case, he did not renew this motion after all evidence was presented. Consequently, appellate review is restricted to assessing whether a "manifest miscarriage of justice" occurred. Even with a renewed motion, the defendant would face a significant burden in proving evidence insufficiency. A judgment can only be reversed if it lacks substantial and competent evidence, and a jury's verdict must stand if any rational fact-finder could have concluded the essential crime elements were proven beyond a reasonable doubt. 

To establish attempt liability, the government must demonstrate both the specific intent to commit the crime and an overt act that constitutes a substantial step toward its completion. The appellate court assesses whether a reasonable person could find that the defendant's actions indicated a firm intent to commit the crime. The trial evidence was deemed sufficient to demonstrate both specific intent and a substantial step toward an assault against the Iron Coffins. Evidence included testimonies that members of the Avengers gathered in groups and armed themselves on at least two occasions, intending to confront the Iron Coffins, with Tom Sam Hakaim's testimony confirming the characterization of these events as "attempted attacks."

Actions taken by club members, including organizing, arming themselves, and traveling in groups to confront their intended victims, are deemed sufficient 'substantial steps' to support a jury's conclusion of an attempted assault against the Iron Coffins. This aligns with precedents such as United States v. Shelton and United States v. Williams, which established that the completion of a crime is not necessary for an attempted charge, particularly when the actions indicate a clear intent to commit the offense.

Furthermore, there is adequate evidence to support Khalil's conviction for aiding and abetting these attempted assaults. As the national president of the Avengers, Khalil's statements at a meeting indicated his desire for an assault against the Iron Coffins, and he was aware that club members would likely act on his directives. Testimonies revealed that Khalil’s comments were interpreted by members as direct orders to engage in violent actions, further solidifying the claim that he participated in and aimed to facilitate the attempted assaults. A jury could reasonably conclude that Khalil's involvement was significant enough to warrant a conviction under the aiding and abetting theory.

Khalil instructed the Avengers to engage with the Iron Coffins only through verbal taunts and to avoid violence, suggesting that they might evade legal repercussions if they retaliated in self-defense after being provoked. However, Khalil also explicitly encouraged violence, directing them to "punch 'em, beat 'em up." Given this inconsistency, evidence suggests that a jury could reasonably find him guilty of aiding and abetting assaults against the Iron Coffins. 

In his appeal, Khalil contested a four-level enhancement to his offense level for being a leader of criminal activities under Section 3B1.1(a) of the Sentencing Guidelines. The district court found that there was ample evidence of Khalil's leadership role in the Avengers Motorcycle Club, determining he was the primary instigator of their criminal actions. Khalil argued that the criminal activities pertained only to the Lorain chapter, not the national organization, and questioned his authority over the club. However, the court's findings regarding his authority were upheld, supported by testimony showing that members were required to follow orders.

Khalil also sought a mitigating role adjustment for acceptance of responsibility, having admitted to distributing marijuana. The court denied this request, citing that Khalil challenged the charges during the trial and did not acknowledge his guilt to the probation officer. The district judge concurred with the prosecution's view that while Khalil admitted to some acts, he provided excuses for his behavior, precluding a reduction in his offense level.

The sentencing judge's evaluation of a defendant's acceptance of responsibility is given significant deference during review, as outlined in U.S.S.G. 3E1.1, comment, note 5. The determination is typically treated as a factual question and is safeguarded by the 'clearly erroneous' standard, meaning it will only be overturned if lacking a foundation. While a defendant can show acceptance of responsibility despite going to trial, adjustments for such acceptance are uncommon. In this case, Khalil contested most of the government's allegations, admitting only to two instances of marijuana distribution while denying involvement in other criminal actions related to the Avengers organization. Consequently, the district court's decision not to apply a downward adjustment under 3E1.1 is supported by the evidence and is upheld. The court affirms Khalil's conviction and sentence, with the opinion designated for full-text publication after initially being issued as an unpublished decision.