U.S. v. Anderson
| Decision Date | 07 June 1991 |
| Docket Number | No. 90-1347,90-1347 |
| Citation | 933 F.2d 1261 |
| Parties | 33 Fed. R. Evid. Serv. 170 UNITED STATES of America, Plaintiff-Appellee, v. Billy Wayne ANDERSON, Jerry Dennis Thomas, Michael Lynn Thomas, and Larry Austin Thomas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John H. Hagler, Michael P. Carnes, Dallas, Tex., for Billy Wayne Anderson.
D. Mark Elliston, Horton Ormesher & Elliston, Dallas, Tex. (Court-appointed), for Jerry Dennis Thomas.
Wes Reed, Dallas, Tex., for Michael Lynn Thomas.
Wayne Ames, Allen, Tex., Richard B. Roper, Joe C. Lockhart, Asst. U.S. Attys., Marvin Collins, U.S. Atty., Fort Worth, Tex., for Larry A. Thomas.
Appeals from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, WILLIAMS and DAVIS, Circuit Judges.
A grand jury indicted Billy Wayne Anderson, Jerry Dennis Thomas, Michael Lynn Thomas, and Larry Austin Thomas for various criminal acts in connection with the burning of a furniture warehouse. A jury convicted all four of conspiracy to damage and destroy by fire a building and personal property used in interstate commerce in violation of 18 U.S.C. Sec. 371 (1988) and of maliciously damaging and destroying by fire a building and personal property used in interstate commerce in violation of 18 U.S.C. Sec. 844(i) (1988). Dennis Thomas, Michael Thomas, and Anderson were also convicted of mail fraud in violation of 18 U.S.C. Sec. 1341 (1988). The district court denied the defendants' motions for a new trial. All four defendants appeal their convictions.
The government presented a simple story. Michael and Dennis Thomas, brothers who operated discount furniture stores in Texas, planned with Billy Anderson, a furniture manufacturer in Mississippi, to rent a big warehouse, fill it with furniture, have it burned, and collect on an insurance policy. Michael and Dennis Thomas ultimately offered their cousin, Larry Thomas, $5,000 to burn the building. Larry Thomas, with the help of his friend Archibald Gordon, set the warehouse on fire on March 26, 1984. Michael Thomas, Dennis Thomas, and Anderson then attempted to recover under an insurance policy and used the United States Postal Service to do so. To evaluate the sufficiency of the evidence to prove this story and the harmlessness of evidentiary rulings, we outline the government's case in detail.
Many members of the Thomas family were involved with various discount furniture stores. Most of the Thomases' stores were actually large warehouses. One was D & D Furniture. Eugene Lindsey, also involved in the discount furniture business, was a key witness. His was the most controversial testimony for the prosecution, and he was the only witness to implicate Anderson directly.
In December 1983, Dennis and Michael Thomas told Lindsey that they were planning with Anderson to have a "professional torch" set fire to their furniture warehouse/store, filled with Anderson's furniture. The two brothers wanted Lindsey's help. To avoid suspicion, the brothers needed furniture from manufacturers other than Anderson. They asked Lindsey to approach other manufacturers on their behalf. Lindsey in turn contacted two furniture manufacturers. Because D & D Furniture had little money, Lindsey asked the companies to accept post-dated checks as payment. According to Lindsey, Anderson sent Dennis Thomas $50,000 to finance the operation of the warehouse.
In January 1984, the Thomas brothers introduced Lindsey to Anderson at a furniture market. Anderson's company, Style-Line Furniture, had rented space at the market. Lindsey testified that Anderson "told me that he had fires in the past and there was nothing to worry about, only way to get caught is if they caught you with matches in your hand." Anderson then allegedly pointed to a picture of the Style-Line factory hanging on a wall or curtain, indicating that insurance proceeds financed the factory. Lindsey told Michael and Dennis Thomas the next day that he did not want to be a part of the scheme. The day before the fire, Dennis Thomas told Lindsey that the warehouse would be closed the next day. Lindsey testified that this indicated to him that the arson would occur then because the warehouse was usually open every day. Lindsey admitted on direct examination that he had been convicted of selling heroin and possessing marihuana in 1973.
The defendants cross-examined Lindsey at length. He denied using any drugs since 1973 or being hospitalized for drug rehabilitation. He admitted to drinking alcohol during the furniture show. The defense attorneys also noted inconsistencies between Lindsey's trial testimony and his After Lindsey testified, the defendants obtained copies of his medical records. The records revealed that Lindsey gave false testimony about his drug use and hospitalization. The prosecution then recalled Lindsey who admitted giving the false testimony. He apologized to the court for so doing. Lindsey then testified that he had been truthful about the scheme to burn the warehouse.
grand jury testimony. The most significant difference was whether Lindsey thought that Anderson referred to having one fire or many fires caused by arson. During the trial, Lindsey testified that Anderson referred to having several fires while during the grand jury investigation Lindsey testified that Anderson referred to having only one fire.
On cross-examination, Lindsey admitted that he consumed many illegal drugs until 1988, including marihuana, cocaine, LSD, barbiturates, and heroin. From 1971 until 1985 he used heroin intravenously. He also admitted to freebasing cocaine later in this period, after his heroin consumption declined. From 1970 to 1988 he used LSD. From 1970 to 1987 he used methamphetamine intravenously. All during this time, he averaged ten marihuana cigarettes a day. He denied using any drug other than alcohol during the furniture show. He admitted that after an unsuccessful attempt to kill his ex-wife's boyfriend, he checked into a hospital for drug rehabilitation in 1988. He admitted to possessing firearms, in violation of his parole from his 1973 conviction.
The government's other witnesses included two members of the Thomas family. Arsonist Larry Thomas' mother, Hazel Thomas (aunt of Michael and Dennis Thomas) testified that she heard a conversation among Michael Thomas, Dennis Thomas, and her husband Lamond Thomas in late 1983 or early 1984. She testified that Michael and Dennis Thomas said that a man would back them and fill a furniture store, that they wanted to get a big warehouse to fill, and that they would get a big insurance policy and have the warehouse burned.
Larry Thomas' brother Harry Thomas testified that in February or March 1984, Larry Thomas told him that their cousins Michael and Dennis Thomas wanted to have a building filled with furniture burned. Larry Thomas offered Harry Thomas $5,000 to help with the arson. Harry Thomas declined the offer.
Deborah Mack, an employee of D & D Furniture, testified that in early 1984 the Thomas brothers received a large quantity of furniture from Anderson's company. D & D Furniture had not received so much furniture at any other time in the months that she had worked there. The furniture was bought on a quasi-consignment basis. At delivery, D & D Furniture gave Style-Line a check for the furniture. When the furniture sold, Style-Line would deposit the check. Under this system, Style-Line's furniture was covered by D & D Furniture's insurance policy, a normal insurance coverage situation according to the insurance company. Cash on delivery or within a certain number of days was, however, the typical way to sell furniture.
Mack further testified that after the furniture was stored in the warehouse, Dennis and Michael Thomas spoke in their office. Dennis Thomas said, "it would be a damn shame if it all burnt to the ground." Then Michael Thomas closed the office door.
Another D & D Furniture employee testified. The day before the fire one of the Thomas brothers told him that the warehouse would be closed the next day so that the store could be moved to a new location. He was then given a bogus address for the new location.
Linda Pannell, who worked for another furniture manufacturer, testified for the government. Anderson asked her company to send furniture to the Thomas brothers, whom he characterized as good business people. She sold the furniture cash on delivery; the bank returned D & D Furniture's check because of a closed account. Dennis Hawk testified that his father sold D & D Furniture some furniture on a consignment basis. After the fire, Michael Thomas told Hawk that if his father said the furniture was on invoice rather Archibald Gordon, a co-conspirator who entered into a plea agreement, testified that Larry Thomas told him that he, Thomas, had been offered money to burn the warehouse and needed Gordon's help. Gordon agreed to help, and the two set the warehouse on fire. Gordon did not testify as to who recruited Larry Thomas to burn the warehouse. Bernard Milam was a witness also against Larry Thomas. He testified that after the fire at D & D Furniture, Larry Thomas offered to have someone burn Milam's business as a way to solve Milam's financial troubles.
than on consignment, Michael Thomas could recover under the insurance policy for the furniture.
Edgar J. Garrett, Jr., attorney for Michael and Dennis Thomas and briefly the attorney for Style-Line Furniture in their insurance claims, was an additional government witness. Garrett mailed a demand letter to the insurance company on behalf of Michael and Dennis Thomas and on behalf of Style-Line Furniture for loss sustained by the fire.
The insurance company's attorney testified about an examination under oath he took of Anderson. At the examination, Anderson produced a list of...
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