86 F.3d 1238 (1st Cir. 1996), 95-1584, United States v. DiSanto

Docket Nº:95-1584.
Citation:86 F.3d 1238
Party Name:UNITED STATES, Appellee, v. Gerard DiSANTO, Defendant-Appellant.
Case Date:June 14, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1238

86 F.3d 1238 (1st Cir. 1996)



Gerard DiSANTO, Defendant-Appellant.

No. 95-1584.

United States Court of Appeals, First Circuit

June 14, 1996

Heard Jan. 10, 1996.

Page 1239

[Copyrighted Material Omitted]

Page 1240

[Copyrighted Material Omitted]

Page 1241

Paul J. Haley, with whom Law Office of Paul J. Haley, Hillsboro, NH, was on brief, for appellant.

John M. Griffin, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Chief Judge.

After a nine-day trial, Appellant Gerard DiSanto ("Appellant") was convicted for attempted arson in violation of 18 U.S.C. § 844(i), the federal arson statute, which makes it a federal crime to destroy by means of fire property used in or affecting interstate or foreign commerce; and for conspiracy to commit arson in violation of 18 U.S.C. § 371. Appellant appeals his conviction as well as his sentence on a number of grounds. For the following reasons, we affirm the district court's judgment and sentence in all respects.


Presenting the facts in the light most hospitable to the jury's verdict, see United States v. Staula, 80 F.3d 596, 599 (1st Cir.1996); United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, 506 U.S. 1063, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993), the evidence presented during the nine-day trial tended to show the following.

The Galleria II was a family-style restaurant and pub serving Italian food and pizza, located in Westport, Massachusetts (the "restaurant"), which was owned by three partners: Appellant, Robert Ashness ("Ashness") and Dr. Louis Aguiar ("Dr. Aguiar"). The restaurant was located in a building which Appellant and Ashness leased from Dr. Aguiar and Fernando Lopes ("Lopes"). The lease agreement provided, among other things, for a monthly rent of $3,600 and an option for the restaurant owners to purchase Lopes' share in the property. The restaurant received natural gas and food supplies that moved through interstate commerce.

Page 1242

Although very successful during the summer months of 1991, its first year of operation, the Galleria II's business proved to be seasonal and business slowed considerably after the summer. In addition to the slow business, there were significant problems with the building's water and septic systems and the relationship between Appellant and Dr. Aguiar deteriorated over who was responsible to pay for the required improvements: the restaurant, as tenant, or Dr. Aguiar and Lopes, as landlords.

Among the Galleria II's employees, Randy Schaller ("Schaller") served as chef and as kitchen manager; and Shelley McKenna ("McKenna") served as the bar manager and hostess and was also responsible for the cash and bookkeeping. Both Schaller and McKenna had longstanding business relationships with Appellant and considered him a friend. Beginning in the fall of 1991, Appellant began discussing with Schaller the need for renovating the restaurant. In addition to correcting the water and septic systems, Appellant proposed that an outside roof-top deck be installed for the purpose of increasing liquor sales during the peak summer season. Appellant told Schaller that he wanted to finance the renovations by burning the top of the restaurant above the second floor as the insurance proceeds from the fire would provide funds for the renovations. As part of his plan, Appellant increased the Galleria II's existing insurance coverage (building, contents, and premises liability) by purchasing $90,000 of business interruption insurance, which became effective December 3, 1991, two months before the arson attempts. The proceeds from the business interruption coverage could have been used for any purpose, including for the repair of the water and septic systems.

On or about February 19, 1992, after unsuccessfully attempting to hire someone else to burn the top of the restaurant, Appellant attempted to set a fire himself by igniting a stack of papers in the attic of the restaurant. The fire burned out, however, before it could fully ignite the exposed wood frame. Both Schaller and McKenna, who had been drawn to the attic because of the open attic door, discovered Appellant standing over the burning stack of papers and refused to get involved. During the days following his first failed attempt, Appellant asked Schaller if he would help by pouring gasoline on the attic rafters as part of a plan whereby Appellant would return later to ignite the gasoline. After repeatedly declining to get involved, Schaller finally agreed to assist Appellant.

Shortly after noon on February 23, 1992, Schaller poured gasoline, as Appellant had requested, onto the exposed attic rafters and insulation and informed Appellant that he had done so. About mid-afternoon, Appellant and Schaller left the restaurant. At approximately 4:00 p.m. that same afternoon, the Westport Fire Department responded to a complaint from the restaurant that there was a strong odor of gas, which both patrons and employees at the restaurant had detected. After evacuating the building, the firefighters discovered the gasoline-soaked boards and insulation as well as evidence of charring on the attic floor and ceiling. According to the fire department, the charring was unrelated to the much larger area of the attic that was saturated with gasoline, representing a separate, previous attempt to start a fire.

A few days later, Schaller admitted to the police that he had poured the gasoline. Although Appellant told law enforcement officials that he would fire Schaller when they informed him of Schaller's confession, Appellant never fired Schaller, and Schaller worked at the restaurant until it closed. On December 6, 1993, Schaller entered a plea of guilty to the federal indictment charging him with the second attempted arson. Pursuant to his plea agreement, he agreed to cooperate with law enforcement officials. As part of that cooperation, Schaller engaged in four conversations--three in person and one by telephone--with Appellant that were recorded by law enforcement agents. 1 In July 1994, a two count indictment was returned by the federal grand jury charging Appellant with attempted arson of a building affecting interstate commerce under 18 U.S.C. § 844(i) and conspiracy to commit arson under 18 U.S.C. § 371. Prior to trial, Appellant filed

Page 1243

a motion in limine to exclude from evidence the four recorded conversations between Appellant and Schaller, which included incriminating statements made by Appellant. After a hearing, the court denied the motion and admitted the tapes after certain portions were excised.

During a nine-day trial on the merits, in which nine witnesses testified for the prosecution (including Schaller, pursuant to his plea agreement), the prosecution presented its theory that Appellant attempted to burn the restaurant in order to recover insurance proceeds to finance renovations and improvements of the restaurant. The defense called three witnesses, including McKenna. Among other matters, the witnesses testified that Schaller's reputation for truthfulness was "zero;" that the business interruption insurance was purchased as a result of significant storms which had caused the Galleria II to close; that, after leaving with Schaller during the afternoon of February 22, Appellant had no intention of returning to the restaurant; and that Appellant was with McKenna during the evening of February 22, planning their next day's business trip.

During the trial, Appellant moved for a mistrial, which was denied, on the grounds that improper testimony regarding his ownership of a "gay night club" was prejudicial. Both at the close of the government's case-in-chief and at the close of all the evidence, Appellant moved for judgment of acquittal on the ground that the evidence was insufficient to establish that the Galleria II was a building affecting interstate commerce. The district court denied both motions.

Based on the foregoing and other evidence, the jury convicted Appellant on February 10, 1995, on both counts of attempted arson and conspiracy to commit arson. Appellant subsequently moved for a new trial which the district court denied. On May 25, 1995, the district court sentenced Appellant to a term of seventy-eight (78) months' imprisonment, imposed a fine of $12,500, restitution to the Westport Police Department in the amount of $386, and ordered supervised release for three (3) years. Appellant appeals both his conviction and his sentence. We have jurisdiction pursuant to Rule 4(b) of Federal Rules of Appellate Procedure.


I. Appellant's Motions for Judgment of Acquittal

Appellant claims reversible error in the denial of his motions for judgment of acquittal. See Fed.R.Crim.P. 29. Below, Appellant based his motions for acquittal on sufficiency of the evidence grounds, which included the argument that there was insufficient evidence to prove the requisite nexus to interstate commerce under the federal arson statute. 2 On appeal, he raises new arguments based on the Supreme Court's decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which struck down the Gun Free School Zone Act, 18 U.S.C. § 922(q), as exceeding Congress' authority under the Commerce Clause 3 to regulate interstate commerce. Appellant now argues that, in light of Lopez, the federal arson statute is unconstitutional and that, accordingly, the district court lacked subject matter jurisdiction. In the alternative, Appellant argues that under Lopez there is insufficient evidence to prove that the Galleria II was a building that...

To continue reading