U.S. v. Bennett, s. 91-5588
| Decision Date | 27 January 1993 |
| Docket Number | 92-5115,Nos. 91-5588,s. 91-5588 |
| Citation | 984 F.2d 597 |
| Parties | RICO Bus.Disp.Guide 8192 UNITED STATES of America, Plaintiff-Appellee, v. Ellowood Eugene BENNETT, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Ray Austin BENNETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John W. Cooper, Cooper & Preston, Parsons, WV, argued (Lori M. Hood, on the brief) for appellant Ray Bennett.
David Ray Rexroad, Rexroad & Rexroad, Buckhannon, WV, argued, for defendant-appellant Ellowood Bennett.
David Earl Godwin, First Asst. U.S. Atty., Clarksburg, WV, argued (William A. Kolibash, U.S. Atty., Clarksburg, WV, Lisa A. Grimes, Asst. U.S. Atty., Wheeling, WV, on the brief) for plaintiff-appellee.
Before HAMILTON, Circuit Judge, SPROUSE, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.
Following a jury trial before Chief District Judge Robert Earl Maxwell in the Northern District of West Virginia, appellants, Ellowood Eugene Bennett (Eugene) and his brother, Ray Austin Bennett (Ray), were convicted of numerous offenses arising from a Racketeering Influenced and Corrupt Organizations Act (RICO) 1 associated-in-fact enterprise designed to defraud insurance companies by burning insured real estate. The appellants raise numerous assignments of error. Finding no merit to these assignments of error, we affirm.
As required, we recount the facts in a light most favorable to the government. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982); Jackson v. Virginia, 443 U.S. 307, 317-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). That evidence demonstrated that beginning in late 1979 and continuing until late 1986, the appellants associated at various times with each other and others to burn insured real estate for the purpose of obtaining the insurance proceeds.
The criminal activity occurred in Upshur County, West Virginia, and created more problems for an already economically depressed area. From 1980 to 1987, several major interstate insurance companies stopped writing insurance in Upshur County. In addition, the average homeowner's policy in Upshur County costs approximately three times more than a policy in neighboring counties.
The leading figure of the enterprise was Eugene. At various times throughout the enterprise's seven-year reign, Eugene encouraged and received the assistance of various individuals to own, lease, or burn property, and to commit various acts of violence in order to sustain the continuance of the enterprise. The properties were generally not in readily marketable condition, enabling the enterprise to reap great profits because the average homeowner's insurance policy provided for replacement value.
About three days before January 1, 1980, Eugene offered Arnold Dale Phillips and Robert Burr (now deceased) $2,500 to burn a house (Adrian house) occupied by Eugene and his then-wife Cleona in the Village of Adrian, West Virginia. 2 Shortly after midnight on January 1, the house was destroyed by fire. Prior to the fire, Edward Heater saw Eugene enter the house. Within minutes, Heater heard an explosion and the house burned to the ground. 3 Eugene later explained to a friend, Terry Grandinette, that he burned the house by employing some kind of timing device on the hot water tank. As a result of the loss, Eugene received $40,000 from Westfield Insurance Company.
The next arson orchestrated by the enterprise was the "Simmons' fire." The Simmons' house was sold by Eugene to Sherwood Simmons in October 1979 for $13,500. Shortly after the sale, Simmons complained that the house was infested with powder post beetles. Eugene suggested that the house be burned for the insurance proceeds. Simmons, after initially refusing, agreed. When Simmons tried to back out after discussing the proposition with his wife, Eugene replied that he would "burn [the house] down around your ears." J.A. at 296.
To effectuate this arson, Eugene offered Mark Howes and Grandinette each $2,000 to burn down the Simmons' house. Grandinette refused. Thereafter, Eugene solicited the assistance of Michael Lee Johnson. On May 26, 1980, Johnson spread gasoline on a couch in the Simmons' house and set it on fire. The resulting fire did not destroy the house.
The following day, Eugene and Howes returned to the Simmons' house to inspect the damage. According to Howes, the couch in the Simmons' house was not "burnt solid." Rather, it was burned in places, suggesting arson as the cause. Howes testified that the place looked like "the perfect place to catch somebody for arson." J.A. at 3184. Later that day, Eugene solicited Howes and Ray to burn the Simmons' house that night.
Howes returned to the Simmons' house later that night in a vehicle driven by Ray. Upon arriving, Howes set the house ablaze, this time destroying it. Shortly after the fire, Basil Brown saw Ray and Howes walking away from the Simmons' house. A few days later, Ray and Brown met outside the Adrian Post Office. Ray told Brown that his life would be in jeopardy if he said anything about the Simmons' fire. 4
The next series of arsons consisted of burning essentially the same property three times. For the sake of clarity, we will refer to it as the "Deever property." By a land contract dated February 3, 1983, Barbara Deever purchased the Deever property from Eugene and Cleona Bennett. Deever eventually insured the property for $51,000 with West Virginia Fire & Casualty Company. On two occasions, Eugene approached Deever in an effort to entice her to have the property burned for the insurance proceeds. Deever refused.
Thereafter, Eugene tried to get one of Deever's sons, Larry Anderson, to burn the property. He refused. Eugene approached another one of Deever's sons, Jimmy Anderson, with the same quick-money proposition. Jimmy Anderson eventually agreed to burn the property for $1,000. On June 30, 1983, Jimmy Anderson burned the property using charcoal lighter fluid that Eugene had provided. The insurance proceeds were paid to Deever. However, she signed most of the insurance proceeds ($25,000 of approximately $35,000 received) over to Eugene because Eugene allegedly had to pay off an outstanding mortgage on the property.
On November 3, 1983, the property was sold by Deever to Larry Tenney for $500. About one month later, Tenney sold the property to Ray for $500. On January 13, 1984, Ray insured the property for $40,000. After Ray completed some repair work on the property, the property burned on July 2, 1984. The State Fire Marshall did not investigate the fire, but the insurance company, Great American Insurance Company (Great American), did. The insurance investigator, George Dishner, concluded that the fire was intentionally set. In reaching this conclusion, Dishner eliminated accidental causes and offered his opinion that some type of accelerant started the fire.
Ray submitted a claim to Great American. Great American refused to pay the claim pending the outcome of its investigation. Ray eventually filed a complaint with the state insurance commissioner's office which requested a response from Great American. Rather than pursuing litigation, Great American entered into a settlement with Ray in which it agreed to pay him $30,000.
On September 3, 1985, Ray sold the property to Eugene for $700. Eugene joined the Deever property with an adjacent piece of property he owned and, in February 1986, Eugene obtained insurance on the property in the amount of $10,000 from the Municipal Mutual Insurance Company. In the beginning of March 1986, Eugene entered into a land contract with Elna Christine George for the sale of the now-enlarged Deever property for $18,000. Eventually, the property burned and Eugene collected $10,000 in insurance proceeds from Municipal Mutual Insurance Company.
On February 25, 1985, property known as the Woodford property located in French Creek, West Virginia, burned, resulting in the death of an eight-year old child, Sally Rice. The property was owned by Eugene. Eugene purchased the Woodford property shortly before the Adrian house fire for $38,000. At the time Eugene purchased the Woodford property, it was being used as an Amoco station and general store. The Woodford property also had a residence incorporated in the same structure. Around April 1980, Eugene moved into the residence, making it his permanent dwelling. In 1981, Eugene closed the store and began converting portions of the property into rental units. Eugene continued to occupy the main level of the residence, but converted the upper and lower floors into apartments. In November 1984, Catherine Rice, later Catherine Rice Bennett, moved to the Woodford property with two of her children, Sally and Henry, occupying an apartment on the upper level of the residence. 5
Eugene engaged in several conversations before and after the fire relating to the Woodford property. Before the fire, Eugene, using a diagram of the premises, discussed the burning of the property with Hubert Gregory and Howes. The parties concluded that the hot water tank would be an excellent place to start a fire. 6 Eugene also told Gregory that the rental units would make the property more valuable for insurance purposes. After the fire, Eugene told Donald Perrine that one of his boys set the fire by removing the gas line from the stove in the bathroom 7 on the main level of the residence.
The circumstances surrounding the fire are most unpleasant. Shortly after going to bed, Sally Rice's brother, Henry, came down the stairs from the upper level of the residence and saw Eugene's son, Lonnie, at the stove in the bathroom on the main level. Henry saw Lonnie remove the flexible line from the stove and also observed that Lonnie possessed matches. After seeing Henry, Lonnie ordered him back upstairs. Lonnie...
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