United States v. Dabit

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UNITED STATES OF AMERICA v. SALEEM YOUSEF DABIT, a/k/a “Sam Dabit”

CRIMINAL ACTION No. 19-143-JWD-RLB

United States District Court, M.D. Louisiana

January 20, 2023

RULING AND ORDER

JOHN W. DEGRAVELLES JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

This matter comes before the Court on two motions in limine. The first is Defendant's Motion for Pretrial Ruling on the Admissibility of Evidence (Doc 136). The Government opposes Defendant's motion. (Doc 144). Defendant filed a reply, (Doc. 146), and the Government filed a surreply, (Doc. 151.) The second is the Motion in Limine to Exclude Evidence of Other Arsons (Doc. 143) filed by the United States, which Defendant opposes (Doc 145). The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons Defendant's motion is denied in part and denied as moot in part, and the Government's motion is granted in part and denied in part.

I. The Amended Indictment (Doc. 64)

Defendant is charged by way of an amended indictment with committing three crimes. (Doc. 64). Count One charges Defendant with using a fire to commit a felony in violation of 18 U.S.C. § 844(h)(1). (Id. at 3.) Count Two charges Defendant with use of fire to maliciously damage property in violation of 18 U.S.C. § 844(i). (Id.) And Count Three charges Defendant with wire fraud in violation of 18 U.S.C.§ 1343. (Id. at 3-6.)

More specifically, the Indictment alleges that Defendant owned and operated Sam's Men's Fashions, which was a retail men's clothing store on Plank Road in Baton Rouge, Louisiana. (Id. at 1.) Defendant allegedly lived in a residence next to the business in the same building. (Id.)

Defendant had insurance through Hanover Insurance Group (“Hanover”) which covered (1) the property where Sam's Men's Fashions operated; (2) business personal property like furniture, computers, office supplies, and inventory; and (3) lost business income associated with the physical loss, damage, or destruction of the property. (Id. at 1-2.) The Hanover policy named Defendant as the insured; described Sam's Men's Fashions as the covered property; and insured the building for $778,131, the business personal property for $700,000, and covered any actual business loss sustained not exceeding a period of 12 consecutive months. (Id. at 2.)

Defendant also had certain obligations under the Hanover Policy in the event of property loss or damage. (Id.) These obligations included the duty to truthfully report how, when, and where the loss or damage occurred and to provide truthful factual information during the insurer's investigation of the claim. (Id.)

However, the policy specifically excluded any loss or damage caused by any dishonest or criminal act by Defendant. (Id.) Further, the policy said it would be considered void in the event of fraud by Defendant or if Defendant intentionally concealed or misrepresented any material fact concerning the property or any claim under the policy. (Id.)

The Louisiana Changes endorsement to the policy specifically excluded and did not provide coverage arising out of any act committed by Defendant or at his direction with the intent to cause a loss. (Id.) This endorsement also stated that the policy would be rendered void with respect to loss or damage caused by fire if Defendant concealed or misrepresented any material fact or circumstance about the property or any claim under the policy. (Id.)

Count One charges that, on January 1, 2019, Defendant did knowingly use fire to commit a felony, namely, wire fraud in violation of 18 U.S.C.§ 1343, as charged in Count Three of the Indictment. (Id. at 3.)

Count Two alleges that, on the same day, Defendant did maliciously damage and attempt to damage and destroy, by means of fire, real property used in interstate commerce, that is, Sam's Men's Fashions. (Id.)

Count Three charges Defendant with wire fraud. (Id.) In a paragraph entitled “Scheme to Defraud,” the Indictment alleges that, beginning around December 2018 until February 2019, Defendant “devised and intended to devise a scheme to defraud, and to obtain money and property from Hanover by means of materially false and fraudulent pretenses, promises and representations, and for the purpose of executing the scheme, did knowingly make, and cause to be made, at least one wire communication in interstate commerce.” (Id. at 4.) The stated “Purposes of the Scheme” were “to defraud, and to obtain funds from Hanover to which [Defendant] was not entitled, by means of materially false and fraudulent pretenses, promises, and representations” and “to personally enjoy, benefit from, and unjustly enrich himself through the use of such funds to which he was not entitled.” (Id.)

The Indictment alleges a number of manner and means by which Defendant sought to accomplish the purposes of his scheme to defraud. (Id. at 4-6.) Specifically, on January 1, 2019, at about 5:30 a.m., Defendant allegedly set fire to Sam's Men's Fashions with gasoline from at least 15 containers. (Id. at 4.) This resulted in a massive fuel-air explosion. (Id.) The Indictment states that Defendant did so with the intent to damage and destroy his property and collect on his Hanover commercial property and business interruption insurance. (Id.)

Almost immediately, Defendant made a formal, allegedly false claim to Hanover to have his insurance cover the loss from the fire, and for weeks thereafter, made materially false and fraudulent representations to fire scene and financial investigators about the cause of the fire and his business finances that would support payment of the claim. (Id. at 4-5.) More specifically, on January 2, 2019, Defendant purportedly called Hanover to make a claim for the fire loss or damage at his property and falsely told the claim agent that an electrical problem had probably caused the fire when, in fact, he knew he had intentionally set the fire himself. (Id. at 5.)

Further, according to the Indictment, Defendant continued to violate the terms of his policy and made a number of fraudulent statements to investigators about the fire to support his initial claim for insurance money. (Id.)

• On January 2, 2019, Defendant falsely told investigators with the Baton Rouge Fire Department (“BRFD”) and Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) that he was awakened on the morning of the fire when firefighters entered his adjoining residence to rescue him. (Id.)

• Around January 29, 2019, after several empty and burdened gasoline containers were discovered at the fire scene, defendant falsely told an investigator for Hanover that intruders must have broken into the business with those items and set the fire. (Id.)

• On or about January 30, 2019, Defendant fraudulently reiterated to BRFD and ATF investigators that intruders must have broken into the business with gasoline containers and set the fire. (Id.)

• Around January 31, 2019, Defendant fraudulently told investigators for Hanover, the BRFD, and ATF that intruders must have broken into the business through a loose metal panel on the roof with the gasoline containers and set the fire. (Id. at 6.)

• Later, on or about February 8, 2019, Defendant falsely told BRFD and ATF investigators that a former handyman and his friends must have broken into the business through a loose metal panel on the roof with the gasoline containers, set the fire, and then exited through the same opening in the room. (Id.)

• On or about the same day, Defendant falsely told investigators with BRFD and the ATF that he was awakened on the morning of the fire when firefighters entered his adjoining residence to rescue him and that he did not hear the explosion or anything prior to their arrival. (Id.)

Finally, the Indictment alleges that Defendant knowingly transmitted and caused to be transmitted in interstate commerce, by means of a wire communication, certain signals and sounds-i.e., a telephone call to a Hanover claims center outside of Louisiana to report the fire at Sam's Men's Warehouse and to make a claim for money on his commercial property and business interruption insurance policies. (Id.)

II. Defendant's Motion (Doc. 136)

A. Overview

Defendant seeks the admission of two pieces of statements which are alleged to contain hearsay. (Doc. 136 at 1.) In the first statement, a man named “Anthony” threatened to shoot Defendant and burn down Defendant's business six months before the fire in June 2018. (Doc. 136-1 at 1-2.) In the second, an unknown witness purportedly told Captain Levert Kemp of the Baton Rouge Fire Department that, on the morning of the fire, another individual heard a boom coming from Sam's store and heard tires squealing. (Id. at 1.) Defendant also raises the issue of a possible Brady violation and spoliation of evidence. (Id. at 6-7.) The Court will address Anthony's statement first and then turn to Kemp.

B. Anthony's Alleged Threat

1. Parties' Arguments

On this issue, Defendant submits a police report reflecting that Defendant reported the threat. (Doc. 136-1 at 1-2.) However the whereabouts of Anthony are unknown. (Id. at 2 n.1.) Defendant argues that he should be able offer the statement if Defendant chooses to testify at trial (Id. at 2.) Defendant contends that Anthony's statements would fall under the Federal Rule of Evidence (“Rule”) 803(3) hearsay exception for the declarant's then existing state of mind. (Id.) Such statements show motive, intent, or plan. (Id.) Further, these statements would come in as statements against interest under Rule 804(b)(3), as (1) Anthony is unavailable; (2) the statements are contrary to his pecuniary/proprietary interests; (3) the statements would expose him to...