Third Circuit disposition — 02-3252

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FO R TH E T HIRD CIRC UIT
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No. 02-3252
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UNITED STATES OF AMERICA
vs.
M O HA M ME D H USSE IN M AZ RA W I
Appellant
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ON APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. Criminal No. 01-cr-00003-01)
District Judge: The Honorable Raym ond L. Finch, Chief Judge
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Argued Decem ber 8, 2003
BEFO RE: NYGAARD, BECKER, and STAPL ETON, Circuit Judges.
(Filed: January 15, 2004)
Chetema Lucas, Esq. (Argued)
Natalie Nelson Tang How , Esq.
27 and 28 King Cross Street

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Christiansted, St. Croix
USV I, 00820
Carl F. M orey, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USV I, 00820
Counsel for Appellee
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant, M ohammed H ussein M azrawi claims that the D istrict Court
abused its discretion by denying his motion for a new trial. He argues that the District
Court erred by admitting a prior consistent statem ent. W e w ill affirm.
M azrawi was convicted of three counts related to a conspiracy to burn a
home and collect the insurance proceeds. During his trial, the owner of the home,
Sharon Loopeker, was a witness for the government. On direct examination,
Loopeker admitted that she and Mazrawi conspired to have him destroy her home and
share in the insurance proceeds.
M azrawi attempted to impeach Loopeker’s testimony by questioning her
regarding three previous statem ents she m ade that w ere either implicitly or explicitly
inconsistent with her trial testimony. Two of these prior statements were made to an

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attorney, Lee Rohn. In one of these, Loopeker stated that M azrawi did not burn her
house and should be able to sue her and collect adequate insurance compensation for
the suffering he endured as a result of being present in the house during the fire. In the
second statement, Loopeker allegedly indicated to Attorney Rohn that she was
concerned Mazrawi would not be treated fairly by her insurance company because he
was of Arab descent. The third area of impeachment dealt with Loopeker’s October
31, 2000 grand jury testim ony. M azraw i’s questioning of Loopeker regarding this
testimony implied that she did not tell the grand jury that Mazrawi was involved in the
burning of her house.
In response to this line of questioning, the government presented, over
M azrawi’s objection, a prior consistent statement that Loopeker gave to the FBI on
February 2, 2000 in which she identified M azrawi as the arsonist. M azrawi argues
that the District Court erred by admitting this statem ent.
A w itness’s prior out-of-court statement is not hearsay if “the declarant
testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is . . . consistent w ith the declarant’s testimony and is
offered to rebut an express or implied charge against the declarant of recent fabrication
or improper influence or motive.” Fed. R. Evid. 801(d)(1) (“Rule 801(d)(1)”). The
Supreme Court has held that, consistent with comm on law rules regarding prior
consistent statements, a statement only qualifies as admissible non-hearsay if it was

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made “before the charged recent fabrication or improper influence or motive.” Tome
v. United States, 513 U.S. 150, 167 (1995). M azrawi argues that Loopeker’s F ebruary
2, 2000 statement to the FBI does not satisfy this timing requirement. Specifically, he
argues that Loopeker’s February 2, 2000 statement to the FBI did not occur before an
alleged improper motive influenced that statement. This argument fails based on
M azraw i’s ow n questioning of L oopeker at trial.
M azrawi alleges that Loopeker’s statement to the FBI was influenced by
an improper motive. This m otive, according to M azraw i, was that Loopeker wanted to
avoid prosecution for her part in the burning of her home. M azrawi has offered no
independent proof that this motive existed. Instead, he makes the quite novel
argum ent that it is logical to assum e that a person in Loopeker’s position w ould lie to
the FB I when questioned about the fire. A s an initial m atter, w e are unw illing to
assume that anyone who is being questioned by the FBI has an automatic motive to be
untruthful. M oreover, in her February 2, 2000 statement to the FBI, Loopeker stated
that she “ha[d] not been coerced or threatened or made any promises whatsoever by
the FBI or by the United States Attorney’s Office.” App. at C. This statement weighs
against M azraw i’s argum ent that her statem ent was prem ised on a m otive to avoid
prosecution.
Additionally, not only is the existence of this alleged improper motive
unsupported by any evidence, it is inconsistent with M azrawi’s own questioning of

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Loopeker. At trial, Mazrawi cross-examined Loopeker with three statements. Two of
these statements were made by Loopeker to Attorney Rohn and pre-dated her
statem ent to the FB I. The third statem ent, however, was Loopeker’s testimony before
the grand jury. In his questioning of Loopeker regarding this testimony, M azrawi
indicated that Loopeker never told the grand jury that Mazrawi was involved in the
burning of her home.
Q. [counsel for M azraw i] Isn’t it a fact that you never told the jury – the Grand
Jury that [Defendant] burnt the house with you?
A. [Loopeker] I don’t recall being asked that direct question.
* * *
Q. [counsel for M azraw i] Isn’t it the truth that you never told them [the grand
jury] that you and him planned this burning of the
building together?
A. [Loopeker] I don’t recall if the question w as asked to me or not.
If you could show me.
App. at 33-34. The clear implication of these questions is that Loopeker’s testimony
before the grand jury did not identify M azrawi as a participant in the conspiracy and,
therefore, that testim ony is inconsistent with her trial testim ony. But this entirely
satisfies the command of Rule 801(d)(1): The testimony elicited by Mazrawi supported
an inference that Loopeker was truthful at an earlier time (before the grand jury), but

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untruthful later (presently on the stand). Necessarily, the “fabrication” occurred (or the
“improper influence or motive” arose) in the intervening period. But if that is so, then
Loopeker’s statement to the FBI necessarily predates the fabrication or influence, as
required by Tome. Thus we conclude that the District Court did not err by admitting
Loopeker’s February 2, 2000 statement.
Even if the District Court had erred in admitting Loopeker’s prior
consistent statement, that error would have been harmless. The evidence at trial showed
that Loopeker’s house was destroyed by an intentionally set fire. Loopeker testified that
Mazrawi agreed to burn her house and share in the insurance proceeds. Mazrawi
admitted to being present in the house when the fire started and his fingerprints were on
soft-drink bottles containing gasoline that were used to start the fire. Given this evidence,
“it is highly probable that [Loopeker’s prior consistent statement] did not contribute to the
jury’s judgment of conviction.” United States v. Casoni, 950 F.2d 893, 917 (3d Cir.
1991) (quoting Government of the Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.
1976)). Therefore, even if admitting Loopeker’s prior consistent statement was error, it
was harmless and does not require reversal.
For the foregoing reasons, we w ill affirm the District Court’s denial of
M azraw i’s m otion for a new trial.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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