U.S. v. Creech

Decision Date03 May 2005
Docket NumberNo. 04-40354.,04-40354.
Citation408 F.3d 264
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Scott Schirmann CREECH, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Tracey M. Batson, Asst. U.S. Atty., Plano, TX, Kirby A. Heller (argued), U.S. Dept. of Justice, Washington, DC, for U.S David L. Botsford (argued), Law Office of David L. Botsford, Austin, TX, for Creech.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendant-Appellant Scott Schirmann Creech appeals his criminal conviction and sentence for four counts of mail fraud in violation of 18 U.S.C. § 1341, use of a fire to commit a felony in violation of 18 U.S.C. § 844(h), and conspiracy in violation of 18 U.S.C. § 371. Because Creech fails to demonstrate reversible error either as to his conviction or sentence, we affirm the judgement of the district court.

BACKGROUND

In July of 1998, Creech began operating a night club called Rick's Place located in Denton, Texas. He leased the premises from Peggy Harvey, the owner of the building. The contents of the building were owned by Rick Reid. Because of declining liquor sales at Rick's Place between the time Creech began operating the club and August of 2000, Creech had difficulty paying all his bills on time. Several of his checks had "bounced" due to insufficient funds, his liquor license was revoked, and the Texas Comptroller's office executed several seizures of cash because of overdue taxes. By August 16, 2000, Creech owed approximately $ 70,000 to various creditors.

In early August, Creech approached a disk jockey or deejay named Reese Haisler, who had at one time worked for Creech but had since left Rick's Place, about the possibility of Haisler returning to Rick's Place as a manager. Creech also asked Haisler to help remodel the club to improve business. Haisler accepted Creech's proposal. Creech later asked Haisler to help him set fire to the bar so that it would look like a fire had accidentally started during the remodeling. In that way, Creech could collect insurance money to help him with the remodeling process. Haisler expressed discomfort with the idea but proceeded to help Creech remove items from the bar that Creech did not want burned in the fire.

On Monday, August 14, Creech increased the limits of the insurance policy he had obtained in June of 2000. He raised the recovery limit on his business personal property from $50,000 to $150,000. That very day, Creech closed Rick's Place for renovations. Haisler and Creech purchased materials and arranged the club to look like it was being remodeled. That evening, Creech told Haisler that he would set up the fire to go off sometime after Creech and Haisler had left the building. He also said he was going to leave town under the false pretense that he had "family issues" to attend to.

The next day, Creech called his brother's long-time friend, Charles Luff, from Arizona and told him that he had attempted to burn down the club but was not sure that his attempt was successful. He asked Charles to check the building, and if it had not burned down, to set another fire. In exchange, Creech promised to pay $10,000 of the insurance proceeds to Charles. Charles discussed the offer with his twin brother, John, and they agreed to do the job. Creech told the twins that he had left several halogen lamps near some paint, paint thinner, and newspaper. He said he had tried to get the halogen lamps to ignite the newspaper and asked them to re-attempt the same set-up.

At about 4:00 am on August 16, the Luff twins retrieved a key to the club that Haisler, according to instructions from Creech, had left behind the building in which the club was located. They attempted to ignite a fire using the halogen lamps in the club, but they were unsuccessful. Consequently, the Luff twins decided to light the newspaper on fire with cigarette lighters, which proved successful. A few days after the fire, Creech called his insurance agent and requested that a claim be filed.

Creech was indicted in a seven-count indictment. Count 1 charged conspiracy to (1) commit arson in violation of 18 U.S.C. § 844(i), (2) use fire to commit a felony in violation of 18 U.S.C. § 844(h), and (3) commit mail fraud in violation of 18 U.S.C. § 1341. Count 2 charged Creech with arson in violation of 18 U.S.C. § 844(I) and aiding and abetting in violation of 18 U.S.C. § 2. Count 3 charged Creech with using fire to commit a felony (mail fraud) in violation of 18 U.S.C. § 844(h) and aiding and abetting in violation of 18 U.S.C. § 2. The remaining counts charged Creech with four counts of mail fraud in violation of 18 U.S.C. § 1341 and aiding and abetting in violation of 18 U.S.C. § 2. The jury convicted on all counts except Count 2 (arson).

DISCUSSION

Creech raises thirteen different arguments in support of reversal or re-sentencing. We treat each in turn.

I. Constitutionality of 18 U.S.C. § 844(h)

First, Creech raises a Commerce Clause challenge to 18 U.S.C. § 844(h), which provides an additional penalty for anyone who "uses fire ... to commit any felony which may be prosecuted in a court of the United States." He essentially argues that because the statute does not require a jurisdictional nexus with interstate commerce to be proved in court, it does not come under Congress's authority to regulate interstate commerce. Because Creech did not raise this challenge below, we review for plain error. See Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Creech's argument fails because § 844(h)'s jurisdictional nexus is derived from the underlying felony, which must be one that "may be prosecuted in a court of the United States." By definition, then, a violation of § 844(h) must necessarily be based on an underlying crime that is properly within federal jurisdiction. Cf. United States v. Pappadopoulos, 64 F.3d 522, 528 (9th Cir.1995) (finding that "Section 844(h) does not facially exceed Congress's commerce power because it requires that the underlying felony itself be one that can be prosecuted `in a court of the United States'"). Indeed, we have previously found a very similar statute, 18 U.S.C. § 924(c)1, "a valid exercise of Congress' commerce power, even though no specific nexus with interstate commerce is required for conviction." United States v. Owens, 996 F.2d 59, 61 (5th Cir.1993).

Here, the underlying crime was mail fraud in violation of 18 U.S.C. § 1341. Creech does not contend that § 1341 is an invalid exercise of Congress's Commerce Clause power. Consequently, we find that Creech's indictment and conviction under § 844(h) was not unconstitutional.

II. Reasonable Doubt Instruction

Next, Creech challenges for the first time on appeal the district court's jury instructions regarding reasonable doubt. We review for plain error. United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001).

Creech argues that the district court's "two-inference" explanation of reasonable doubt, which instructed jurors to acquit the defendant if the evidence equally supported two reasonable theories, one of innocence and one of guilt, was improper. He contends that the instruction over-represented the amount of exculpating evidence that might create a reasonable doubt in jurors' minds. However, the district court's instructions, "taken as a whole, ... correctly conve[yed] the concept of reasonable doubt to the jury." Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). The district court emphasized, both before and after giving the challenged instruction, the presumption of innocence accorded to all criminal defendants and the heavy burden borne by the government in overcoming that presumption. The district court specifically advised the jury that "[t]he law does not require a defendant to prove his innocence or produce any evidence at all." We find no plain error in the district court's instructions regarding reasonable doubt.

III. Pinkerton Instruction

Creech challenges the district court's jury instructions regarding the Pinkerton theory of liability in which a defendant may be found criminally liable for the acts of co-conspirators. He argues that the instruction did not "clearly and unequivocally inform the jury that it had to find every element of the substantive offense under consideration by the jury beyond a reasonable doubt." We review this claim for plain error because it was not raised below. See Johnson, 520 U.S. at 467-68, 117 S.Ct. 1544.

We find no plain error in the district court's instructions. The instructions, which were virtually identical to instructions provided in the Fifth Circuit Criminal Pattern Jury Instructions, correctly stated the law of Pinkerton liability. See United States v. Thomas, 348 F.3d 78, 84-85 (5th Cir.2003) (rejecting appellant's argument that Pinkerton charge should not have been given and noting that the Pinkerton charge, which followed those outlined in the Fifth Circuit Pattern Jury Instructions, "correctly stated the law").

IV. Unanimity Instruction

Creech next claims that the district court violated the Sixth Amendment by failing to sua sponte give a specific unanimity instruction as to Counts 3 through 7 requiring the jury to convict only upon agreeing on all elements of the offense under at least one theory of criminal responsibility. Because Creech did not raise this argument below, we review the instruction for plain error. Johnson, 520 U.S. at 467-68, 117 S.Ct. 1544.

The Sixth Amendment requires unanimity as to the elements of the offense. Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). "In the routine case, a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability."...

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