U.S. v. Sherlin

• Decision Date: 18 October 1995
• Docket Number: 94-6112,Nos. 94-6111,s. 94-6111
• Citation: 67 F.3d 1208
• Parties: , 104 Ed. Law Rep. 69, 43 Fed. R. Evid. Serv. 1 UNITED STATES of America, Plaintiff-Appellee, v. Keith SHERLIN (94-6111) and Tracy Teague (94-6112), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1208

67 F.3d 1208

64 USLW 2261, 104 Ed. Law Rep. 69, 43

Fed. R. Evid. Serv. 1

UNITED STATES of America, Plaintiff-Appellee, v. Keith SHERLIN (94-6111) and Tracy Teague (94-6112),

Defendants-Appellants.

Nos. 94-6111, 94-6112.

United States Court of Appeals, Sixth Circuit.

Argued May 23, 1995.

Decided Oct. 18, 1995.

Gary Humble, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Attorney, Chattanooga, TN, for U.S.

Howell G. Clements (argued and briefed), Chattanooga, TN, for Keith Sherlin.

Keith Sherlin, Manchester, KY, pro se.

Perry H. Piper (argued and briefed), Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, TN, for Tracy Teague.

Before KENNEDY, JONES, and KRUPANSKY, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Defendants Keith Sherlin (No. 94-6111) and Tracy Teague (No. 94-6112) appeal their convictions. We affirm in each case.

Both were named in a seven-count superseding indictment filed on April 28, 1994, which included charges of conspiracy to commit arson in violation of 18 U.S.C. Sec. 844(i), arson with personal injuries in violation of 18 U.S.C. Secs. 844(i) and 2, and perjury in violation of 18 U.S.C. Sec. 1623. Sherlin was found guilty of conspiracy to commit arson (Count I), arson with personal injuries (Count II), and perjury (Counts III-V). Sherlin was sentenced to a total of 235 months in prison and restitution in the amount of $1,377,892.31. Teague was found guilty of conspiracy to commit arson (Count I) and perjury (Counts VI-VII), but the jury returned a not guilty verdict with respect to the arson charge (Count II). He was sentenced to a total of 64 months in prison and restitution in the amount of $1,377,892.31. On appeal, the Defendants question the sufficiency of the evidence to sustain their convictions, the admission or denial of certain evidence, the district court's denial of a severance motion, subject matter jurisdiction, and the district court's refusal to review a presentence report of a government witness prior to cross-examination of the witness.

I.

At trial, the evidence revealed that on November 4, 1993, Keith Sherlin, Tracy Teague, and Charlie Jacks travelled to the campus of Lee College in Cleveland, Tennessee, and set fire to the Ellis Hall dormitory with seventy-six sleeping students inside. This act was the culmination of a series of events that began on October 4, 1993. On that date, Sherlin, Stacy Miller, and Milford Weathers, Sherlin's cousin, went to the Lee College campus and provoked an argument with some students. Subsequently, Miller went to his house and, accompanied by Sherlin and Weathers, returned to the campus with a shotgun. The shotgun was discharged in the direction of some students, and Miller and Sherlin were charged with four counts of felonious reckless endangerment. As a result of this incident, Sherlin swore that he would get revenge. The Ellis Hall fire apparently was Sherlin's revenge.

Sherlin made several statements to friends that he would seek revenge. Shortly before the fire, he travelled with Tracy Teague to Lisa Pritchett's apartment. In the presence of Teague, Pritchett, J.J. Rodgers, and Pritchett's boyfriend, Keith Mitchell, Sherlin discussed the October 4 shotgun incident, and he promised that he would get revenge. On another occasion, he visited his ex-girlfriend, Christy Vandergriff. Again, Sherlin swore that he would seek revenge on Lee College.

On the evening of November 3, 1993, Sherlin, Teague, Jacks, and Rodgers met at Jacks' brother's apartment. Sometime after midnight, Sherlin obtained gasoline and placed it in the trunk of Charlie Jacks' car. Sherlin then asked his buddies if they would "help him get some revenge." Around 2:00 a.m., the four men travelled to Lee College, and Sherlin stated to Rodgers that it "was time to get even." Sherlin told Teague to act as a lookout, watching for security guards and others. Rodgers, being scared to death, remained in the car. Sherlin, Teague, and Jacks were unaware that a Lee College student watched them move from their parked car to Ellis Hall.

While Teague acted as a lookout, Sherlin and Jacks entered the Ellis Hall dormitory prayer room. Sherlin directed Jacks to pour gasoline on the floor, and Jacks complied. Sherlin struck a book of matches and threw them down on the floor. Sherlin and Jacks then ran from Ellis Hall. They picked up Teague and ran to the car. Again, unknown to Sherlin, Teague, and Jacks, a Lee College student watched them run from Ellis Hall and return to Sherlin's vehicle.

The three men jumped into the car and left the scene. About the time that the fire trucks arrived, Sherlin, Teague, and Jacks returned to the scene of the fire. The three of them watched as Ellis Hall burned.

All three suspects appeared before a grand jury investigating the arson. While they all admitted their presence at Charlie Jacks' brother's apartment, they initially claimed that they were watching a movie at the time of the fire. Sherlin claimed that after the movie was completed he returned home. Jacks rendered the same statement, and Teague testified that after Sherlin left Jacks' brother's apartment, he did not see him for the remainder of the morning. All three denied any knowledge of the fire.

Eventually, Teague admitted to the authorities that he travelled to the Lee College campus that morning with Sherlin, Jacks, and Rodgers. He claimed that Sherlin told him to "watch out," while Sherlin and Jacks went toward Ellis Hall. Shortly after Teague's statement, Jacks and Rodgers both broke down and admitted that they had previously lied to the grand jury when they denied knowledge of the fire. Jacks admitted his involvement. Jacks and Rodgers pled guilty to all counts in which they were charged in the original indictment. Neither entered a plea agreement with the government.

As a result of the fire, seventeen students were injured. Three were severely injured. The injuries included broken bones and third degree burns.

After Sherlin and Teague were convicted, these appeals timely followed.

II. Common Issues

A. Lack of Federal Jurisdiction

Both Sherlin and Teague argue that the district court erred in failing to dismiss the arson and conspiracy counts for lack of federal jurisdiction. They claim that their alleged act of arson did not involve interstate commerce and was not within the powers granted by the U.S. Constitution pursuant to Article I, Section 8, Clause 3.

In part, Sherlin and Teague were charged with violating section 844(i) of Title 18 of the United States Code, which stated the following in pertinent part at the time the Defendants committed the offense, were convicted and sentenced:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not more than twenty years or fined not more than $20,000, or both....

18 U.S.C. Sec. 844(i) (1988) (emphasis added).

First, Sherlin and Teague rely on Russell v. United States, 471 U.S. 858, 859-60, 105 S.Ct. 2455, 2456-57, 85 L.Ed.2d 829 (1985), which held that the legislative history of 18 U.S.C. Sec. 844(i) indicated that Congress intended to protect all "business property," and to exercise its "full power under the Commerce Clause" to that end. The Defendants contend that Ellis Hall was not a "business," nor was it connected to a business in the normal sense of the word. Thus, they claim that the alleged arson was not encompassed by 18 U.S.C. Sec. 844(i), and that consequently, the district court did not have jurisdiction to hear the arson charges.

Contrary to the Defendants' assertion, we find that Congress intended 18 U.S.C. Sec. 844(i) to encompass acts of arson such as the malicious burning of Ellis Hall. The plain language of the statute prohibits the malicious destruction, by means of fire, of any "building ... used ... in any activity affecting interstate or foreign commerce." 18 U.S.C. Sec. 844(i). Ellis Hall was clearly a "building," and the evidence adduced at trial was more than sufficient to establish that Ellis Hall was used in an activity affecting interstate commerce.

At trial, Dr. Paul Conn, the "CEO" of Lee College, testified that Lee College "was in the business of providing educational services at the undergraduate level[;] people pay us money to teach them and provide them with college credit." He also testified that Lee College advertised out-of-state. As a result, Lee College had over 2,000 full-time students when the fire occurred and eighty-six percent of those students were from out-of-state. Significantly, the seventy-six students living in the Ellis Hall dormitory at the time of the fire were residents of twenty-one different states. Only four of the Ellis Hall residents were from Tennessee; the other seventy-two were from other states and countries.

Dr. Conn also noted that Lee College purchased numerous supplies from out-of-state. For example, approximately $1,000,000 worth of out-of-state food services was supplied by the Washington, D.C.-based Marriott Corporation.

Clearly, the educational business of Lee College was an activity affecting interstate commerce, and Ellis Hall was a building used in that activity. 18 U.S.C. Sec. 844(i). Thus, the plain language of the statute encompassed the Defendants' act of arson.

At oral argument, the Defendants raised another fundamental challenge to the court's jurisdiction. Relying on United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Defendants contended that 18 U.S.C. Sec. 844(i) ex...