U.S. v. Linn, s. 93-8044

Decision Date01 August 1994
Docket Number93-8045 and 93-8048,Nos. 93-8044,s. 93-8044
Citation31 F.3d 987
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Theodore LINN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Philip STURLIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guy STURLIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Patrick J. Crank, Asst. U.S. Atty. (David D. Freudenthal, U.S. Atty., Christopher A. Crofts and David A. Kubichek, Asst. U.S. Attys., with him on the brief), Casper, WY, for plaintiff-appellee.

Terry W. Mackey, Cheyenne, WY, for defendant-appellant Guy Sturlin.

Richard Wolf, Wolf & Tiedeken, Cheyenne, WY, for defendant-appellant Philip Sturlin.

Maynard D. Grant, Grant & Newcomb, Cheyenne, WY, for defendant-appellant Theodore Linn.

Before EBEL, KELLY and BARRETT, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendants-appellants Guy Sturlin and Theodore Linn appeal from their convictions and sentences for (1) conspiracy to commit certain offenses against the United States, 18 U.S.C. Sec. 371; (2) mail fraud, 18 U.S.C. Sec. 1341; (3) wire fraud, 18 U.S.C. Sec. 1343; and (4) money laundering, 18 U.S.C. Sec. 1956(a)(1). Defendant Philip Sturlin appeals only from his convictions for conspiracy, 18 U.S.C. Sec. 371, arson, 18 U.S.C. Secs. 844(i) & 2, and wire fraud, 18 U.S.C. Sec. 1343. We have jurisdiction under 28 U.S.C. Sec. 1291 & 18 U.S.C. Sec. 3742.

Background

On February 16, 1990, the Coffee Cup Cafe located in Cheyenne, Wyoming was destroyed by fire later determined to be the result of arson. During the latter part of 1989, the Cafe, owned by Guy Sturlin and operated by his son Philip Sturlin, was steadily losing money. A cooperating witness, Jim Kerns, testified that he and Philip Sturlin set the fire to collect insurance proceeds, approximately ten percent of which would be paid to Mr. Kerns for his efforts.

Guy Sturlin had contacted Theodore Linn, a former employee, in late 1989. Mr. Linn suggested the services of Mr. Kerns, also a former employee, who had been previously convicted for arson. In January 1990, Mr. Linn contacted Mr. Kerns regarding the possibilities of torching the Coffee Cup Cafe. Mr. Kerns was then contacted by Guy Sturlin and plans were made to destroy the Cafe the next month.

Mr. Kerns arrived in Cheyenne on February 15, 1990, and met Philip Sturlin at the Cafe. Mr. Kerns confirmed that Philip understood why he had come to Cheyenne. The next day he purchased Coleman fuel and lighter fluid for the fire. Mr. Kerns also purchased a police and fire band radio receiver to monitor the emergency channels after the fire started. Before starting the fire, Mr. Kerns and Philip Sturlin removed various items from the cafe including the ledger, cash, receipts, some food products, knives and a mixer.

The fire was set by using the cafe's thermostat for a timer. Mr. Kerns had determined that the furnace would ignite approximately two hours after the thermostat was lowered ten degrees. Mr. Kerns and Philip Sturlin spread the Coleman fuel and lighter fluid in and around the furnace, lowered the thermostat by ten degrees, and left the Cafe at approximately 9:00 p.m. The empty fuel cans were left in an alley dumpster and they dropped off the cash, receipts and ledger at Guy Sturlin's house. After these tasks were completed, Mr. Kerns and Philip Sturlin went to a 10:00 p.m. movie at the local mall with a couple of Philip's friends to establish an alibi.

After the movie, Mr. Kerns turned on his monitor to ascertain whether the police or fire department had been dispatched to the cafe. Because all was quiet, the two returned to the vicinity of the cafe to investigate. Seeing no visible signs of a fire and worried that the employees would find the evidence of the attempted arson the next day, Mr. Kerns entered the cafe and found the premises filled with smoke. He immediately left, locking the door behind him, and returned to Philip Sturlin's car parked one block away. The police and fire department arrived and found the cafe completely engulfed in flame. Mr. Kerns and Philip Sturlin drove to Philip's house soon after the aid arrived. The fire department extinguished the blaze but the cafe was a total loss.

A police investigation into the fire ended with Mr. Kerns agreeing to testify against Mr. Linn and the Sturlins in exchange for reduced charges against himself. Mr. Kerns did testify against the three codefendants, resulting in convictions.

Discussion
I. Invalid Conviction Under Count One

Defendants 1 were charged in Count One of the indictment with conspiracy to commit various offenses against the United States. The district court instructed the jury that Count One charged Defendants "came to some type of agreement or understanding to commit offenses against the United States, namely, (a) to commit arson of a building affecting interstate commerce; (b) to engage in mail fraud; (c) to engage in wire fraud; (d) to engage in interstate travel to aid an illegal enterprise, and (e) to engage in money laundering...." III R., doc. 196 (Jury Instruction No. 16) (emphasis added). Defendants argue that their convictions under this count violated their Fifth and Sixth Amendment rights as well as Fed.R.Crim.P. 7(c).

The Fifth Amendment guarantees that the federal government will not deprive one of life, liberty, or property without due process of law. In the context of a criminal proceeding, among other safeguards to one's liberty interest, due process requires that guilt be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Defendants argue, for the first time on appeal, that their right to due process was violated because, given the general nature of the verdict on this count, it is impossible to know which, if any, object of the conspiracy the jury believed the government proved beyond a reasonable doubt. We review this challenge only for plain error. See United States v. Hager, 969 F.2d 883, 890 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992).

This argument has been foreclosed by the Supreme Court in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Griffin also involved a multiple-object conspiracy. There the Court held that " 'when [a conviction is based on] a jury verdict on an indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is sufficient with respect to any one of the acts charged,' " Griffin, 502 U.S. at ----, 112 S.Ct. at 473 (quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970)), provided none of the charges are legally defective. Id. 502 U.S. at ---- - ----, 112 S.Ct. at 470-472 (discussing Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)). Here, Count One of the indictment charged a multiple-object conspiracy in the conjunctive. Defendants do not argue that Count contained legally insufficient charges. Therefore, no Fifth Amendment violation occurred.

The Sixth Amendment guarantees a federal criminal defendant the right to a unanimous jury verdict. Johnson v. Louisiana, 406 U.S. 356, 369, 92 S.Ct. 1620, 1637, 32 L.Ed.2d 152 (1972) (Powell, J., concurring). Defendants argue, again for the first time on appeal, that this right was violated because it is impossible to know upon which, if any, object the jury agreed. Because defendants failed to object to the jury instructions below, we review only for plain error. Hager, 969 F.2d at 890.

" 'In this circuit, as in most others, "it is assumed that a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict." ' " United States v. Sasser, 971 F.2d 470, 477 (10th Cir.1992) (quoting United States v. Phillips, 869 F.2d 1361, 1366 (10th Cir.1988) (quoting United States v. McClure, 734 F.2d 484, 494 (10th Cir.1984)), cert. denied, 490 U.S. 1069, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989)), cert. denied, --- U.S. ----, 113 S.Ct. 1292, 122 L.Ed.2d 683 (1993). Here, the district court properly instructed the jury that its verdict must be unanimous in order to convict Defendants. This general unanimity instruction coupled with the conjunctive characterization of Count One contained in Jury Instruction No. 16 forecloses any claim of plain error by defendants based on the Sixth Amendment. See Sasser, 971 F.2d at 477-78.

Finally, we turn to the issue of whether Count One violated Fed.R.Crim.P. 7(c). Again, because this issue is raised for the first time on appeal, we review only for plain error. See Hager, 969 F.2d at 890. Rule 7(c) provides that:

The indictment ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.... It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means.

Here, Count One alleged a conspiracy to commit multiple offenses against the United States. Guy and Philip Sturlin argue that Count One violated Rule 7(c) because it is unclear. We find Count One to be a simple charge of conspiracy having multiple objects; no lack of clarity exists. Indeed, the enumeration of multiple objects is specifically sanctioned by Rule 7(c). Defendants' convictions on Count One, thus, withstand all challenges brought by this appeal.

II. Exclusion of Criminal History of Jim Kerns

At trial, Defendants attempted to introduce prior convictions of Jim Kerns to discredit his testimony. The court excluded this evidence pursuant to Fed.R.Evid. 609(b). Defendants argue that such exclusion constituted an abuse of the court's discretion warranting a new trial. We review the exclusion of a...

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