U.S. v. Kerr

Citation778 F.2d 690
Decision Date19 December 1985
Docket NumberNo. 84-8790,84-8790
Parties19 Fed. R. Evid. Serv. 1406 UNITED STATES of America, Plaintiff-Appellee, v. Thomas H. KERR and Darwyn C. Fuller, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Bobby Lee Cook, James Wyatt, Summerville, Ga., for T. Kerr.

Albert Burkhalter, Rome, Ga., for D. Fuller.

Lark Ingram Tanksley, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and FAY, Circuit Judges, and HOFFMAN *, District Judge.

HILL, Circuit Judge:

This is an appeal from a prosecution for conspiracy to commit mail fraud and for mail fraud. The government sought to prove at trial that the appellants, Thomas H. Kerr and Darwyn C. Fuller, obtained insurance on the the contents of a pharmacy and an affiliated business selling stereo equipment, intentionally set fire to the premises in which these businesses were housed, and attempted to collect insurance on the business by placing three separate proof of loss statements in the mails. The appellants raise three categories of issues on appeal: (1) whether testimony admitted at trial to prove motive for arson was so prejudicial that it should have been excluded under Rules 403 and 404(b), Federal Rules of Evidence; (2) whether there was insufficient evidence of mail fraud and conspiracy to commit mail fraud; and (3) whether the trial court erred in refusing an evidentiary hearing on the appellants' motion for a new trial grounded on an alleged misrepresentation by one of the jurors at voir dire.

FACTS

Appellant Kerr is a registered pharmacist in Georgia. In 1977 Kerr purchased the ongoing pharmaceutical business of Landers Pharmacy in Rome, Georgia. 1 In 1981 Kerr rented space in a building adjoining the pharmacy and began operating a business selling stereo equipment, the Stereo Den. Shortly thereafter, Kerr entered into partnership with Darwyn Fuller. Under the terms of the agreement, Fuller was to manage the Stereo Den in return for a percentage of the profits of that business.

In 1977 Kerr purchased a $200,000 insurance policy from the Hartford Insurance Company. The policy covered the contents of the pharmacy from loss due to fire or burglary, and contained professional liability coverage as well. The payees on the loss portion of the policy were Bud Landers, the former owner of Landers Pharmacy, and the Allied Capital Corporation, a creditor of Landers Pharmacy. Also in 1977, Bud Landers purchased a $125,000 insurance policy from Hartford that covered the building in which the pharmacy was located.

Landers Pharmacy was burglarized on February 2, 1981, October 14, 1981, and November 28, 1981. After the third burglary, Hartford canceled Kerr's $200,000 policy. Cancellation occurred in December, 1981. Kerr thereafter obtained a separate $125,000 insurance policy from Hartford that covered Landers Pharmacy in the event of fire loss and also contained professional liability coverage. The partnership of Kerr and Fuller obtained a $100,000 insurance policy from the Waco Insurance Company that covered the Stereo Den from fire loss.

Testimony at trial established that on January 19, 1982 Kerr and Fuller closed the Landers Pharmacy and the Stereo Den at its usual closing time of approximately 7:00 p.m. Melonie Jackson, a cashier, and William Fricks, an assistant pharmacist, left the building with Kerr at approximately 7:00 p.m. Fuller, explaining that he thought he saw a light left on in the Stereo Den, remained in the building. At approximately 7:10 p.m. Billy Rampley, walked outside his home which was situated near Landers Pharmacy and heard a burglar alarm sounding from the pharmacy premises. Smelling smoke, he discovered that the pharmacy was on fire. After directing his wife to call the fire department, Mr. Rampley went back to the pharmacy and waited outside for the fire department.

At approximately 7:10 p.m. David Cargle was driving past the Landers Pharmacy. He heard the burglar alarm go off, drove on about a quarter of a mile, smelled smoke and turned back. Returning to the pharmacy, Mr. Cargle saw smoke and flames coming out of the Stereo Den window. Mr. Cargle, too, called the fire department It was at this time the fire department arrived. Mr. Carl Green, Deputy Chief, Rome fire department, received a call that the Landers Pharmacy was on fire at approximately 7:13 p.m., January 19, 1982. Mr. Green arrived at the scene of the fire at 7:19 p.m., entered the building at the northern end of the Stereo Den where it joined Landers Pharmacy, and observed severe burning in the Stereo Den and in the pharmacy. Fire was moving from the Stereo Den into the pharmacy by force through adjoining doors between the two businesses. Mr. Green remained at the pharmacy most of the ensuing night directly firefighting teams. During the course of this activity he observed two low burns within the building. One low burn was at the Stereo Den side of the doorway adjoining the pharmacy. The second low burn was in the back of the Stereo Den. Mr. Green pointed these burning patterns out to George Lanier, the fire marshal of the Rome fire department.

from a mobile phone in his pickup truck. Thereafter, he drove around to the front of the building, got out of the truck and kicked down the door to the Stereo Den in an attempt to salvage some of the merchandise. Smoke billowed out of the door and he closed it quickly.

It was Mr. Lanier's duty to determine the cause of the fire. After observing the course of the fire and, later, investigating the scene, Mr. Lanier determined that the fire was not accidental. Burning patterns in the rooms, including charring under applicances in the Stereo Den indicating the presence of flammable liquids seeping over the floor, led Mr. Lanier to suspect arson.

He also examined other possible causes for the fire including heaters, electrical wiring in the walls, and a possible short circuit from the fuse box on the premises. There was no indication of a malfunction in any of these units. Additionally, there was no evidence of forced entry into the pharmacy. In fact, the back door to the pharmacy was secured from within. There was no fire in the basement and no forced entry into the basement. Finally, it was significant that the fire was discovered not more than eleven minutes after the vacation of the premises by Kerr and, later, Fuller. Considering the advanced burning that was present when the firefighters arrived on the scene approximately ten minutes after the fire was discovered, and that this development had occurred over a course of approximately fifteen minutes from the time Kerr and Fuller left, it was Mr. Lanier's opinion that the fire had been intentionally set.

Evidence was also had from a Mr. Malcom Martin, an electrical engineer. Mr. Martin testified that he had examined the electrical systems within the buildings and conclusively ruled out electrical short circuiting as a cause of the fire.

Finally, testimony was taken from Mr. Lloyd Erwin, a forensic chemist with the Bureau of Alcohol, Tobacco and Firearms. Mr. Erwin examined samples of debris taken from locations where there were low burn patterns in the buildings. His examination revealed the presence in those samples of flammable liquids, medium range distillants including paint thinners.

Following the fire, Kerr and Fuller attempted to collect on two insurance policies held on their businesses. Both Kerr and Fuller submitted through the United States mails three sworn notarized statements in proof of loss arising from the fire.

The defendants were named in an eight count indictment charging them with violations of 18 U.S.C. Secs. 371, 1341, and 1342. The defendants were arraigned on July 16, 1984 and entered pleas of not guilty to all charges. The case was tried in August, 1984. At the conclusion of the trial the jury returned verdicts of guilty as to all counts. Defendant Kerr was sentenced to three years on counts I, II, III, IV, V, VI, VII, and VIII with the sentence imposed as to each count to run concurrently. Defendant Fuller was sentenced to eighteen months on counts I, and II, the sentences to run concurrently. On count III, IV, V, VI, VII and VIII, the defendant was sentenced to two years concurrent, that sentence to run consecutively with the sentence imposed on counts I and II. The Prior to sentencing, the appellants moved for a new trial or an evidentiary hearing, or, alternatively, for judgment of acquittal notwithstanding the verdicts. The trial judge denied these motions. On October 1, 1984, the defendants filed a motion for reconsideration and this motion, too, was denied. A notice of appeal was filed from the judgment of the district court.

sentence on counts III, IV, V, VI, VII, and VIII was suspended with the defendant being placed on probation for a period of three years, the same to commence on his release from the sentence served on counts I and II.

ISSUES ON APPEAL

The appellants raise three claims on appeal: (1) that the trial court erroneously allowed testimony going to the motive and the intent of the defendants, the probative value of which was outweighed by its prejudicial effect; (2) that there was insufficient evidence to support the convictions; and (3) that the trial court erred in refusing an evidentiary hearing on defendants' motion for a new trial made on the basis of an alleged misrepresentation by one of the jurors on voir dire.

In our view, the evidence is clearly sufficient to support the jury's verdict on the issues of mail fraud and conspiracy to commit mail fraud. Likewise, we do not find error in the district court's refusal to grant an evidentiary hearing on the basis of an alleged juror misrepresentation during voir dire.

The circumstances of the alleged misrepresentation are these. On voir dire, the venire was asked the following questions:

Do any of you now or have you in the...

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