United States v. Gant

Decision Date03 September 2013
Docket NumberNo. 12–3855.,12–3855.
Citation721 F.3d 505
PartiesUNITED STATES of America, Plaintiff–Appellee v. Shawn GANT, Defendant–Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

John P. Messina, AFPD, Des Moines, IA, for appellant.

Charles J. Williams, AUSA, Cedar Rapids, IA, for appellee.

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Shawn Patrick Gant on three counts of arson, in violation of 18 U.S.C. § 844(i). The district court 1 sentenced him to concurrent 240–month terms of imprisonment on each count, consecutive to an existing 10–year federal sentence. See United States v. Gant, 663 F.3d 1023, 1025 (8th Cir.2011). He appeals, attacking (1) the admission of prior-acts evidence, (2) the sufficiency of the evidence, and (3) the reasonableness of the sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The indictment charged Gant with setting three fires. The first was in July 2009. He was living in the “computer room” of his girlfriend's sister's house. The sister hosted a pool party. Gant and his girlfriend attended. They drank heavily and bickered. Everyone was outside, around the pool. Around 7:30 p.m., Gant went inside. About 30 minutes later, he came out and asked, “Do you smell that?” No one smelled anything except a citronella candle. The sister and her boyfriend then went inside, finding the house on fire. Gant had been the last person in the house. He left, going to a coworker's home. There, Gant fluctuated between agitation and excitement. He returned to the fire, twice asking a firefighter about the cause. The fire marshal determined the fire started in the computer room and was not accidental, but the cause was “undetermined.”

The second fire was at Gant's ex-girlfriend's house in October 2009. She and several children (including one of Gant's) were home when a fire erupted in the kitchen. Everyone escaped. That night, Gant told a friend that he “heard from a little birdie” about the fire. The next day, Gant told her “no one was supposed to be home and it wasn't supposed to happen that way.” He also said that [n]obody was supposed to get hurt,” and that his ex-girlfriend deserved the fire “for breaking [his] heart.” (In 2008, he had tried to break into her previous house.) An investigator determined the fire started near or in a toaster. The cause was “undetermined.”

A year and a half later, Gant wrote a letter to the friend:

They investigated a lot of fires that I wasn't involved with, taking attention away from the ones I was involved with .... I'm going to get away with a couple of incidents. They still haven't figured out the truth [about my ex-girlfriend's]. Anyone can sneak into a house and rewire outlets and appliances.

The third fire was in May 2010 at Gant's apartment, which was in a mall with businesses on the lower level. He always locked his apartment door and had the only key. His landlord had recently given an eviction notice for late rent. Gant was drinking at a bar one-and-a-half blocks from his apartment building. He left for his apartment between 9:45 and 10:00 p.m. Right before 10:00 p.m., the tenant across the hall heard someone open the front door to the building and enter Gant's apartment. That person quickly left Gant's apartment, locked the door, and exited the building. Gant returned to the nearby bar between 10:00 and 10:10 p.m. Before 10:30 p.m., he went to another local bar. When asked why he looked upset, Gant—who was drunk—replied, [My] apartment [is] on fire and [I have] an alibi.”

Tenants of the building found Gant's apartment on fire. They gathered outside the building. Gant was not there. A firefighter suffered injuries searching for tenants—including Gant—in the burning building (which was destroyed). Investigators determined the fire started in a plastic bucket in Gant's apartment. They labeled the cause of the fire “undetermined,” because they could not eliminate cigarette butts as an accidental cause.

Before trial, the government moved to admit evidence that Gant intentionally set numerous other fires (eventually focusing on 17 prior fires). Over his objection to exclude all prior-acts evidence, the district court limited evidence to four prior fires and several statements, including his admission to setting grass fires. The first prior fire was in 2001, when he set fire to his duplex apartment. The second, in June 2002, he started near a coffee maker in the break room of his workplace. Questionedabout these fires, he admitted to a third—burning his car in January 2002. He pled guilty to two counts of arson for the duplex and workplace fires. The fourth fire was in 2004, after his release from prison, when he set fire to his apartment. His roommate suffered inhalation and burn injuries. Gant pled guilty to reckless use of fire.

Evidence at trial included the prior-acts evidence, Gant's statements about setting fires, and his admission to starting fires when under stress or drinking excessively. Three former inmates testified he got [k]ind of excited” when discussing the fires he started. One testified that Gant talked about setting a fire after drinking in a bar, and returning to the bar afterward. Another testified that Gant admitted to starting the May 2010 fire by placing a lit cigarette in braided toilet paper. Additional witnesses linked him to the three charged fires. The jury convicted on all three counts.

Gant's advisory range was 130 to 162 months. (The statutory maximum sentence was 80 years.) The district court departed upward to 240 months based on U.S.S.G. § 5K2.0(a)(3). Alternatively, the district court deemed the sentence a variance under 18 U.S.C. § 3553(a).

II.

Gant argues the district court erred under Federal Rule of Evidence 404(b) in admitting his convictions for four prior fires and his statements about setting other fires. This court reviews for clear abuse of discretion a district court's evidentiary rulings.” United States v. Lindsey, 702 F.3d 1092, 1097 (8th Cir.2013). This court reverses “only when the evidence clearly had no bearing on the case and was introduced solely to show defendant's propensity to engage in criminal misconduct.” United States v. Farish, 535 F.3d 815, 819 (8th Cir.2008).

“Prior-acts evidence ‘may be admissible for another purpose [other than propensity], such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’ United States v. Tyerman, 701 F.3d 552, 562 (8th Cir.2012) (alteration in original), quotingFed.R.Evid. 404(b)(2). “To be admissible under 404(b), evidence must be (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect.” Id. (Gant does not challenge the district court's finding that sufficient evidence supports the prior acts.)

Here, the evidence shows (at least) intent and lack of accident. Under the first factor, Gant claims that his prior acts of arson, and admissions to them, are irrelevant to proving the charged fires were arson. Not so. “Relevance of evidence is established by any showing, however slight, that the evidence makes it more or less likely that the defendant committed the crime in question.” United States v. Mora, 81 F.3d 781, 783 (8th Cir.1996). Evidence that he twice set fire to his own residence, burned his own car, started a fire near an appliance at his workplace, and admitted to starting fires helps show that he intended to start the charged fires, and they were no accident. See Westfield Ins. Co. v. Harris, 134 F.3d 608, 614–15 (4th Cir.1998) ([W]here prior acts of apparent coincidence are similar, the repeated reoccurrence of such an act takes on increasing relevance to support the proposition that there is an absence of accident.” (citation omitted)); cf. United States v. Cook, 454 F.3d 938, 941 (8th Cir.2006) (explaining this court has “frequently upheld the admission of prior drug convictions” to show intent when a defendant denies committing a drug offense); United States v. Hermes, 847 F.2d 493, 497 (8th Cir.1988) (holding admission to prior arson scheme relevant to show intent to commit the charged arson).

Under the second factor, Gant does not contest that the prior acts are similar to the present arson offenses, but believes they are too remote. The oldest was in 2001—not too remote for 404(b) evidence. See United States v. Yielding, 657 F.3d 688, 702 (8th Cir.2011) (This court has upheld the introduction under Rule 404(b) of fifteen-year-old convictions that were similar to the crime charged.”).

Under the fourth factor, Gant contends the evidence is more prejudicial than probative. SeeFed.R.Evid. 404(b)(2); see alsoFed.R.Evid. 403. “Damaging evidence is always prejudicial; the question is whether the evidence is unfairly prejudicial.” Tyerman, 701 F.3d at 563,citingFed.R.Evid. 403. The district court found that admitting all the prior-acts evidence the government requested would have been “highly prejudicial.” It therefore restricted evidence to four prior acts and several statements. The court determined this restriction adequately limited any prejudice. This court gives great deference to the district court's weighing of the probative value of evidence against its prejudicial effect.” Id.

Gant further contends that the government used the evidence in closing argument purely to show his propensity to commit arson. The government argued:

[W]hen you are looking at whether these were intentionally set or were accidental, you can consider the defendant's prior convictions. The prior convictions were, he was convicted of arson twice in Decorah.

You can consider his admissions that he set the fire on January 24, 2004, in Oelwein. You can consider those intentionally set fires in...

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