U.S. v. Diaz

• Decision Date: 20 August 2002
• Docket Number: No. 01-1904.,01-1904.
• Citation: 300 F.3d 66
• Parties: UNITED STATES of America, Appellee, v. Franklin DIAZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

300 F.3d 66

UNITED STATES of America, Appellee, v. Franklin DIAZ, Defendant, Appellant.

No. 01-1904.

United States Court of Appeals, First Circuit.

Heard April 2, 2002.

Decided August 20, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas M. Dickinson, with whom Pine & Cantor was on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Stephanie S. Browne, Assistant United States Attorney, were on brief for appellee.

Before BOUDIN, Chief Judge, BOWNES, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

On February 1, 1999, there was a fire at a restaurant owned by defendant-appellant Franklin Diaz. Thereafter, Diaz was charged by a federal grand jury in a six-count indictment with malicious destruction by fire of property used in interstate commerce (arson) in violation of 18 U.S.C. §§ 844(i) and 2 (Count I); mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343 and 2 (Counts II-IV); and use of fire to commit a federal felony in violation of 18 U.S.C. §§ 844(h)(1) and 2 (Counts V-VI). After a six-day trial, a jury convicted Diaz on the arson charge in Count I and acquitted him on the remaining counts. The district court sentenced Diaz to five years of imprisonment.

Diaz now appeals his arson conviction, primarily challenging the district court's admission of expert opinion testimony as to the cause of the fire. That challenge requires us to consider whether the defendant properly advised the court of the nature of his objection under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to expert testimony presented by the prosecution. We conclude that he did not. For that reason and others, we affirm the conviction.

I.

We describe the facts in the light most favorable to the verdict. See United States v. Van Horn, 277 F.3d 48, 54 (1st Cir.2002). Diaz was the owner and operator of Franklin's Prestigio Restaurant, located at 247 Reservoir Avenue in Providence, Rhode Island. The restaurant occupied part of a building at 241-247 Reservoir Avenue that consisted of several adjacent storefronts. Diaz leased one of these storefronts and the basement below it from the Camparone family, whose estate owned the building.

The government introduced evidence at trial casting doubt on the financial viability of Diaz's business. For instance, in 1994 and 1995, the restaurant operated at a loss. As of December 31, 1998, its balance sheet reflected assets of only $21,444. Diaz had expressed interest in selling the business and had complained about having few customers.

In the summer of 1998, the Camparone family began efforts to sell 241-247 Reservoir Avenue. Because Diaz had been in the building longer than the other tenants, the Camparones gave him the right of first refusal to buy the building. Diaz explored the possibility of buying the building. He spoke with Jaime Aguayo, a Small Business Administration ("SBA") representative, about arranging financing for the purchase. The SBA advises small businesses on how to obtain bank loans and (if certain conditions are met) guarantees up to 80 percent of the ultimate loan. According to Aguayo's trial testimony, Diaz expressed concern that, if the Camparones sold the building to another tenant, he would be evicted. Despite these initial inquiries, however, Diaz never submitted a completed business plan or copies of his tax returns, a necessary step in the SBA application process.

At some point in October or November of 1998, Diaz had still not succeeded in obtaining financing and Rocco Camparone told him that he would sell the building to someone else. The Camparones then entered into an agreement to sell the building to one of the other tenants. A closing was scheduled for February 7, 1999. The government introduced evidence that Diaz was aware of the pending sale and was upset about it. However, Diaz denied any such knowledge in his deposition testimony (which was admitted into evidence at trial). Diaz did not testify at the trial.

In mid-November 1998, Diaz applied for business insurance through Joseph Mazzotta, an insurance agent who had secured other insurance coverage for Diaz. Prior to that time, Mazzotta was unable to persuade Diaz to purchase business insurance coverage. Diaz had always said that he could not afford it. In December 1998, Lloyd's of London issued an insurance policy that provided $100,000 of coverage for the contents of the restaurant and $21,000 of coverage for business interruption. In late January 1999, about a week and a half before the fire, Diaz phoned Mazzotta several times to confirm that the insurance policy was in effect and visited Mazzotta's office to obtain a copy of the policy.

On Monday, February 1, 1999, just before midnight, a passerby reported to a nearby fire station that the restaurant was on fire. When the firemen arrived, they found the restaurant locked with no sign of a break-in. Forcing their way into the building, they discovered that the fire was in the basement. The fire was ultimately suppressed, though not before causing significant damage to the basement.

According to Diaz's deposition testimony, the restaurant was closed on the day of the fire. Diaz testified that he had been in the restaurant that day and he had locked it and activated the burglar alarm before departing. Diaz and his wife were the only ones who possessed keys to the restaurant and only they and their daughter knew the access code for the alarm.

On the night of the fire, Joseph Dorsey, a fire investigator with the Providence Fire Department, arrived to examine the scene and to investigate the cause of the fire. Based on this initial investigation, Dorsey surmised that the fire might have been caused by an electrical malfunction associated with the radio in the basement.

A few days later, on February 5, insurance investigator Thomas Haynes surveyed the scene of the fire at the insurance company's request. His investigation in the basement revealed unusual burn patterns inconsistent with normal fires as well as material on the floor that smelled like paint thinner. Based on his investigation, he concluded that the fire was deliberately set.

On February 10, 1999, both Dorsey and Haynes returned together to the scene to conduct a joint investigation. Dorsey testified that what he observed on this day caused him to reevaluate his initial determination that the fire was accidentally set. According to their testimony at trial, Dorsey and Haynes observed on this day that the burn patterns were consistent with an accelerant being used in the fire. As part of the investigation, a rug sample from underneath a fallen ceiling tile was sent out for lab testing. That sample was found to contain some type of accelerant, such as paint thinner or gasoline. Based upon these findings, Haynes and Dorsey opined that the fire was set intentionally.

II.

On March 9, 2001, one business day before trial began, defense counsel filed a two-page "Pretrial Memorandum."¹ That memorandum contained the following sentence: "The only anticipated legal issue potential would be the qualification of the experts, so-called, under the standards of the Daubert trilogy: Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); General Electric Company, et al. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)."

At trial, the government called fire investigator Dorsey to the witness stand. Dorsey described his qualifications as an expert in determining the cause and origin of fires. He also discussed some of the methods used in reaching such determinations. Dorsey then proceeded to testify as to the February 1 investigation of the restaurant's basement. He testified that, while firefighters were still busy spraying water in the basement, he surveyed the basement with another investigator who had arrived on the scene earlier. That investigator called Dorsey's attention to a melted-down radio and to burn damage to a nearby bed and a wall containing the wiring going to the outlet into which the radio was plugged. Based on that initial examination, he concluded that the fire might have been caused by an electrical problem associated with the radio in the basement.

Dorsey testified that, after his second examination, conducted jointly with Haynes on February 10, he discovered the evidence that prompted his reevaluation of this conclusion. At this point in the direct examination, the prosecutor asked Dorsey for his present opinion concerning the cause of the fire. Defense counsel's objection on grounds of "foundation" was sustained, apparently because Dorsey had not yet explained what he saw during the second examination that changed his opinion. Dorsey then explained that he detected the odor of something like paint thinner and he observed irregular burn patterns indicative of the use of an accelerant. He also observed that the wall where the radio had been plugged in did not burn through to the other side, causing him to eliminate the radio or some other electrical component as a possible cause of the fire.

The government then asked Dorsey again for his present opinion on the cause of the fire, prompting defense counsel to object on the following grounds:

Competency to render the opinion. And I didn't have a chance to cross-examine as to the complete elements of the fire scene investigation before I have had the opportunity. He can answer at some later point.

The court overruled the objection, stating: "It goes to the weight and not admissibility and you can cross-examine on that." Dorsey then opined that the fire was "deliberately set." On cross-examination, defense counsel challenged Dorsey's credibility, questioning him at length on his qualifications as a cause-and-origin expert, the standards and methods he employed...