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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Eighth Circuit Affirms Arson Conviction


In USA v. Schnapp. 02-2302 (Mar. 13, 2003), the Eighth Circuit Court of Appeals reviewed the defendant's arson conviction. Christopher Schnapp ("defendant") appealed from a final judgment entered in the United States District Court for the Eastern District of Missouri upon a jury verdict finding him guilty of one count of arson in violation of 18 U.S.C. 844(i). United States v. Schnapp, No. 4:00CR583 (May 14, 2002 E.D. Mo.). For reversal, defendant argued that the district court erred in denying his motion for judgment of acquittal on grounds of insufficiency of the evidence.

Defendant was indicted on December 21, 2000, on one count of arson. His trial commenced on July 3, 2001. The following is a summary of the government's theory of the facts as presented to the jury. On April 9, 1998, at approximately 11 p.m., a fire broke out at the St. Clair One-Stop Convenience Store ("the One Stop" or "the store"), which was owned by defendant's parents and operated by defendant and his wife. A local law enforcement officer, Travis Blankenship, noticed smoke billowing from the One Stop building and radioed the dispatcher. Fire and police personnel responded within a few minutes after Blankenship's call.

Defendant and an employee of the One Stop, Brandy Hartman (hereinafter "Brandy"), had just left the store when Blankenship radioed the dispatcher about the fire. According to Brandy, just before they left, defendant said he had forgotten his jacket and went back into the store to retrieve it while she waited at the door. He was gone for about a minute. When he returned, he set the security alarm, and they departed. Earlier that day, Brandy had left the store because her mother had had a medical emergency and had been hospitalized. When Brandy left to see her mother, defendant told her that she could take the rest of the day off, but she voluntarily returned later in the day. Both she and defendant are cigarette smokers and had been smoking at the store on the day of the fire. However, Brandy testified that defendant had a policy of not allowing ashtrays to be dumped into trash bags within the last half hour of the work day and she believed that the policy had been followed on the day of the fire.

Around the time Blankenship was radioing the dispatcher, the security company monitoring the One Stop's alarm system detected motion within the building and notified defendant. The security system registered the time that defendant set the alarm as 11:02 p.m. and the time that the motion detector was activated as 11:06 p.m. Defendant immediately returned to the store, where he met a police officer, Officer Calhoun, who had responded to the radio dispatch. Calhoun examined the building from the outside and observed no signs of forced entry. He obtained keys to the building from defendant and gave the keys to the firefighters who had arrived on the scene. The fire was extinguished at approximately 12:16 a.m. Afterward, defendant, accompanied by Calhoun, was permitted to enter the store, where he recovered some cash, lottery tickets, and a gun.

Laclede Gas had shut off the gas to the One Stop building while the fire was being put out, and an employee of Missouri Gas subsequently checked the lines and determined that gas was not a cause of, or contributor to, the fire. Jim Schuhmacher, an investigator with the Franklin County prosecuting attorney's office, had been called to the scene shortly after the fire started. He entered the One Stop building on several occasions after the fire. Based upon his inspections of the building and interviews of defendant and Brandy, he concluded that the fire was not ignited by natural gas coming from the furnace, smoldering cigarette butts in the trash, a faulty gas line, the electrical systems, flammable liquids spilled or poured on the floor, or any other accidental cause. He testified that, in his opinion, "the fire's origin was the furnace storage room area located at floor level and was deliberately introduced by a human being."

Bill Buxton, a part owner of a firm called Pyr-Tech, Inc. ("Pyr-Tech"), was hired to conduct a fire cause-and-origin investigation by the company that had insured the One Stop building, Secura Insurance Co. ("Secura"). Giving reasons similar to Schuhmacher's, Buxton testified that, in his opinion, the fire had been deliberately set using ordinary combustible items such as cardboard boxes, beer cases, and paper bags at floor level. Lloyd Brown, an electrical engineer hired by Buxton to examine the electrical systems, testified that the fire did not appear to have started in the furnace, nor was it ignited by an electrical source.

At the time of the fire, the One Stop was having financial difficulties. A tax collector for the Missouri Department of Revenue, Barbara Mueller, testified that, as of April 8, 1998, the day before the fire, One Suzy-Q, d/b/a St. Clair One-Stop, was delinquent on taxes by approximately $30,000 and was on the verge of having its business license revoked. Defendant paid approximately $ 10,000 on April 8, 1998, but needed to pay another $ 3,700 by April 10, 1998, to avoid revocation. The One Stop had, in the past, received 23 notices of imminent revocation of its business license, but its license had never actually been revoked because defendant had always paid on time. A senior auditor with the Bureau of Alcohol, Tobacco, and Firearms, John Sarson, testified that, at the time of the fire, the One Stop was heavily in debt, operating at a loss, regularly relying on check overdrafting to stay in business, and had a negative balance in its bank accounts. Gary Railing, the agent with Secura who had issued the policy for the One Stop, testified that the building was insured for $ 240,000, the inventory and actual loss of business income were insured for $ 150,000, and other miscellaneous coverage added up to $ 30,000. Railing and other individuals associated with suppliers for the One Stop testified about the store's indebtedness and shortage of funds. Finally, an inspector with the Missouri Department of Natural Resources, Jeanine Hoeft, testified that, on April 9, 1998, she had inspected the gas storage tanks at the One Stop, and they were not yet in compliance with gas storage tank upgrade requirements which were to become mandatory on December 22, 1998. According to Hoeft, she measured the gas levels in the two storage tanks at the One Stop on April 28, 1998, and found them to be virtually empty.

In sum, according to the government's theory of the case, defendant deliberately set the fire at the One Stop as a desperate attempt to get the business out of its dire financial circumstances.

The defense cross-examined the government's witnesses. Schuhmacher, on cross-examination, admitted that, on or about April 10, 1998, he removed a fluorescent light fixture and a junction box from the ceiling of the furnace room of the One Stop building. He testified, however, that he could not remember why he had done so. Schuhmacher also admitted that, before taking his job with the prosecutor's office, he was employed as a fire investigator with Pyr-Tech, the company that was partly owned by Buxton and was hired by Secura to investigate the cause and origin of the One Stop fire. Schuhmacher had worked directly under Buxton while employed at Pyr-Tech and had remained friendly with Buxton over the years. Buxton and Schuhmacher had talked on the telephone before Buxton inspected the One Stop building on April 14, 1998, and Schuhmacher accompanied him on that inspection. Neither Schuhmacher nor Buxton mentioned their relationship with one another in their respective written reports regarding the cause and origin of the fire. Some of the government witnesses conceded, on cross-examination, that there was evidence of electrical arcing at the scene of the fire; some also conceded that, if Styrofoam products were stored in the furnace room, as defendant later testified, that could explain the rapid acceleration of the fire because Styrofoam is highly flammable. Government witnesses further agreed on cross-examination that the fire could have spread in the same manner whether started accidentally or deliberately. They uniformly agreed that defendant cooperated fully with their investigations.

Defendant then moved at the close of the government's case for judgment of acquittal based upon insufficiency of the evidence. The motion was denied.

The defense presented three witnesses: (1) Ronald Gronemeyer, a fire cause-and-origin expert, (2) Lawrence Schnapp, defendant's father and the owner of the One Stop, and (3) defendant himself. Gronemeyer had been hired in 1998 by Lawrence Schnapp after Secura denied insurance coverage. He first investigated the scene of the fire on August 1, 1998. He testified that it was "difficult to impossible" to determine where in the furnace room the fire had started. He opined that there were several possible sources of ignition of the fire: electrical arcing at a flexible conduit, smoking materials in the trash, ignition of flammable vapors, or a deliberate human act. While he agreed that arson was a possibility, he could not say with reasonable certainty that arson was the cause.

Lawrence Schnapp, defendant's father, testified that he and his wife were the sole owners of One Suzy-Q Corp., d/b/a St. Clair One-Stop, as well as the restaurant property next door to the One Stop. He and his wife were out of town at the time of the fire. He had no problems with defendant's management of the One Stop prior to the fire. Although he was aware of defendant's business practices, including the routine bank overdrafting, he knew that defendant always managed to keep the business afloat. The restaurant property had recently produced a net monthly loss for them, so the One Stop had been covering the difference on that mortgage. The fire, and the denial of coverage by Secura, had financially devastated Lawrence Schnapp and his wife, who were left hundreds of thousands of dollars in debt.

Defendant took the stand on his own behalf. His testimony included, among other things, a description of the loss of items in the fire, such as important papers that were left out in the office. He also testified that there were three cases of Styrofoam coolers and minnow buckets stored in the furnace room. He testified that he often stored trash bags in the furnace room and recalled that there were several such bags left there on the night of the fire. He confirmed that he had opened the store at 4:10 a.m. on April 9, 1998, and had worked almost continuously for 19 hours that day. He also recalled that Brandy was very upset that day because of her mother's work-related accident and injuries. Both defendant and Brandy were smokers and, in addition, customers were permitted to smoke in the store. Defendant testified that Brandy did most of the cleaning up for the night and, notwithstanding his policy of not allowing cigarette butts to be put in the trash within the last hour and a half before closing, he had no way of knowing whether a customer or Brandy may have inadvertently discarded a smoldering cigarette butt in the trash on the night of the fire. In addition, defendant testified that, at the time of the fire, the store contained over $ 3,000 cash in the registers and the safe, $8,200-worth of lottery tickets, and $ 1,000 in change. Defendant also testified that his parents had full ownership of both the One Stop property and the restaurant property next door. As far as he knew, they were the only beneficiaries on the insurance policy. Defendant's only income at the time of the fire was his salary for operating the One Stop. Finally, regarding the delinquent taxes, defendant explained that he could have avoided revocation of his business license by obtaining a last-minute bank loan, as he had always been able to do in the past.

During defendant's testimony, defense counsel asked defendant if he and Schuhmacher had gone into the One Stop building together shortly after the fire was extinguished. Defendant answered that they had. At that point, the government asked to approach the bench. In a sidebar conference, counsel for the government stated that he believed defense counsel was about to ask defendant about statements made to him by Schuhmacher just after the fire. The government objected to this anticipated testimony on hearsay grounds. Defense counsel responded that the statements would not be offered for their truth but rather as prior inconsistent statements, to impeach Schuhmacher's testimony at trial regarding the cause of the fire. The district court noted that defense counsel had not questioned Schuhmacher about the alleged prior inconsistent statement despite having the opportunity to do so when cross-examining Schuhmacher during the government's case-in-chief. Upon the district court's indication that the evidence therefore would not be admitted, defense counsel made an offer of proof. According to defense counsel, he would have asked defendant whether or not he (defendant) and Schuhmacher had had a conversation in the One Stop building on the night of the fire regarding Schuhmacher's impression of the cause of the fire; defendant was expected to say "yes," and that Schuhmacher told him that the fire probably started high, probably in the ceiling, and burned downward. The district court then sustained the government's hearsay objection, and defense counsel resumed examining defendant, but on a different line of questioning.

At the close of the evidence, defendant again moved for judgment of acquittal on grounds of insufficiency of the evidence. The district court again denied the motion, and submitted the case to the jury. The jury thereafter found defendant guilty. Defendant was sentenced to 60 months imprisonment, 3 years supervised release, a $ 100 assessment, and restitution in the amount of $ 247,098.98. He appealed.

Defendant also appeals the district court's denial of his motion for judgment of acquittal on grounds of insufficiency of the evidence to support the jury's verdict. A court will reverse a conviction for insufficiency of the evidence if the government failed to prove beyond a reasonable doubt a fact necessary to establish the crime charged. See In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) ("The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). However, "[a] motion for judgment of acquittal should only be granted 'where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.'" United States v. Earles, 113 F.3d 796, 802 (8th Cir. 1997), cert. denied, 522 U.S. 1075, 139 L. Ed. 2d 752, 118 S. Ct. 851 (1998). Neither the district court, nor this court on appeal, may weigh evidence or assess witness credibility when considering the sufficiency of the evidence to support the jury's guilty verdict.

Defendant cites as instructive United States v. Yoakam, 116 F.3d 1346 (10th Cir. 1997), in which the Tenth Circuit reversed the defendant's arson conviction under circumstances somewhat similar to those in the present case. The Tenth Circuit held in Yoakam that, although the evidence of arson was convincing, the government's evidence of the defendant's guilt was insufficient as a matter of law because the evidence of his financial motivation required "speculation and conjecture" and the only physical evidence tying him to the fire was the fact that he was the last one to leave the building, just minutes before it burst into flames.

By comparison to Yoakam, defendant contended, the case at bar is even weaker. He contended that the government does not even have sufficient evidence to prove that the fire at the One Stop was indeed caused by arson. As to motive, defendant argued, the evidence showed that he and his wife - having no ownership interest in the business, the building, or the inventory, and relying only on their incomes as employees of the One Stop - had nothing to gain and everything to lose from the destruction of the building. As to the government's reliance on the precarious way in which the business was operating in the weeks and months just prior to the fire, defendant suggests that, as a mere employee of the One Stop, he had no legal or financial obligations associated with the business and could have walked away at any time. As to the physical evidence, defendant contended that, just as in Yoakam, there was nothing more than his mere presence in the building a few minutes before the fire broke out. Defendant also emphasized, among other things, that: he was extremely cooperative with all investigators; he immediately provided the keys to the firefighters so they could extinguish the fire; no indicia of arson, such as the appearance or odor of accelerants, were detected in the building or on defendant's person; and he denied being careless with smoking materials, even though such a representation would have supported the conclusion that the fire had started accidentally. Defendant sums up by urging this court to hold, as a matter of law, that no reasonable jury could have found, beyond a reasonable doubt, that he intentionally caused the fire.

The court agreed with defendant that there are some factual similarities between the case at bar and Yoakam, but it also noted some meaningful differences. In Yoakam, there was an inconsistency in the government's evidence which undermined the government's theory of guilt: government witnesses testified that a liquid accelerant had been used to commit the arson, yet witnesses verified that the defendant did not smell of an accelerant such as gasoline or kerosene at the time of the fire. 116 F.3d at 1350. There was no such factual inconsistency in the present case. Moreover, in the case at bar there were circumstances beyond defendant's "mere presence" at the scene just before the fire started. For example, after Brandy had exited the store on the night of the fire, defendant went back in the store for a minute or so, during which he was alone in the furnace room. As a smoker, he likely would have had a lighter or matches on his person. As to motivation, the government presented a strong case that defendant was at the end of his rope financially and may well have been desperate for any way out. As the government points out, defendant's father was out of money, defendant had just obtained a $ 50,000 bank loan, the bank accounts were empty, he had bounced over 200 checks in 1998 alone, sales taxes were due (meaning the business license was on the verge of revocation), and the gas storage tanks at the store were empty and in need of repair or replacement.

In sum, not only was there circumstantial evidence of arson, there was evidence of defendant's opportunity and means to commit the crime and evidence of his financial motivation, despite his lack of an ownership interest in the property. Upon review of the evidence, therefore, the court could not say that a reasonable jury could not have found defendant guilty beyond a reasonable doubt. Though far from overwhelming, the evidence was legally sufficient to support the jury's verdict. The court affirmed the conviction.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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