U.S. v. Jackson

• Decision Date: 04 April 1983
• Docket Number: Nos. 81-2411,81-2412 and 81-1342,s. 81-2411
• Citation: 696 F.2d 578
• Parties: 12 Fed. R. Evid. Serv. 401 UNITED STATES of America, Appellee, v. Esau JACKSON, Appellant. UNITED STATES of America, Appellee, v. Clarence Gene SCROGGINS, Appellant. UNITED STATES of America, Appellee, v. William Franklin DANCY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 578

696 F.2d 578

12 Fed. R. Evid. Serv. 401

UNITED STATES of America, Appellee, v. Esau JACKSON, Appellant.

UNITED STATES of America, Appellee, v. Clarence Gene SCROGGINS, Appellant.

UNITED STATES of America, Appellee, v. William Franklin DANCY, Appellant.

Nos. 81-2411, 81-2412 and 81-1342.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1982.

Decided Dec. 28, 1982.

Rehearing and Rehearing En Banc Denied Feb. 14, 1983.

Certiorari Denied April 4, 1983. See 103 S.Ct. 1531.

Al Moskowitz, Asst. Federal Public Defender, W.D.Mo., James R. Wyrsch, Kansas City, Mo., for appellant.

Stinson, Mag & Fizzell, George E. Feldmiller, Charles W. German, Kansas City, Mo., for appellant William Franklin Dancy.

Robert G. Ulrich, U.S. Atty., J. Whitfield Moody, Cynthia A. Clark, Asst. U.S. Attys., Kansas City, Mo., for appellee.

Before HEANEY and ARNOLD, Circuit Judges, and REGAN, ^* Senior District Judge.

HEANEY, Circuit Judge.

This appeal arises from three convictions obtained by the government in its attempt to bust an alleged "arson-for-profit" ring operating in Kansas City, Missouri. We reverse the conviction of Clarence Gene Scroggins, reverse the conviction of Esau Jackson in part and affirm the conviction of William Franklin Dancy.

I.

INTRODUCTION.

On August 23, 1977, a house located at 53rd and Agnes Street in Kansas City burned to the ground (the "Agnes fire"). Fire department investigators determined that the fire had been purposely set. The owner of the home, Samuel Edmunds, collected $14,116.66 on his homeowner's policy as a result of the fire. Appellant Scroggins, who was renting the premises from Edmunds at the time, collected $16,142.08 on his renter's insurance policy for the damage to his household goods and belongings.

Nearly seven months later, on March 21, 1978, a home owned by appellant Dancy, located at 4011 East 51st Street, was severely damaged by fire (the "51st Street" fire). The police determined that arson was the cause. Dancy's claim on his homeowner's insurance policy was paid in the amount of $20,000. The holder of a renter's insurance policy on the premises, Karen Hicks, sought compensation for alleged fire damage to the contents of the dwelling, but this claim was denied.

Two more fires occurred in June, 1978, and police investigators determined that both were the result of arson. On June 24, an apartment building located at 2547 Troost burned (the "Troost fire"). Samuel Edmunds, the owner of the building, received $14,497.67 in insurance proceeds. Three days later, a fire occurred at 2632 Indiana Street, a house owned by JoAnn Hillmon Murray, a paramour of appellant Dancy. Murray received $12,400 on her homeowner's policy to compensate for the fire damage.

On April 24, 1981, an indictment was filed against Edmunds, Murray, and appellants Scroggins, Jackson and Dancy in connection with the four above-described fires. Count I of the indictment charged the five defendants with conspiracy to commit mail fraud. That count alleged that the five had conspired with Charles Morgan, an unindicted confederate, to set fire to the four premises in order to fraudulently obtain insurance proceeds from various insurance companies through the use of the United States mail. Counts II through V charged Dancy and Jackson with substantive violations of 18 U.S.C. Sec. 1341, the mail fraud statute, in connection with mailings that resulted from the 51st Street fire. Counts VI through VIII alleged wrongful use of the mails by Edmunds and Jackson to collect insurance proceeds from the Troost fire. Counts IX through XI charged Murray, Jackson and Dancy with mail fraud in connection with the Indiana fire. No substantive mail fraud violations were charged as a result of the Agnes fire.

All five defendants were jointly tried, despite repeated severance motions by each defendant. The government's chief witness at trial was Charles Morgan, the self-proclaimed "torch" for the four fires. Morgan testified that in August, 1977, Scroggins entered into a contract with him to burn the residence on Agnes Street that Scroggins was renting from Edmunds. Morgan claimed that Edmunds played no part in his scheme. Morgan further testified that Edmunds introduced him to appellant Jackson, and that one or two months after the introduction, Morgan and Jackson agreed that Morgan would torch the 51st Street property. Three weeks after the 51st Street fire, Morgan and Jackson negotiated a "package deal" for the destruction of four more properties: the Troost apartments, the Indiana house and two houses that were never burned. Morgan testified that Dancy was the "money man" behind Jackson in the arson dealings and directly implicated Edmunds in at least the Troost fire dealings. Morgan stated that he did not know JoAnn Murray, and that he dealt only with Jackson in regard to the burning of the Indiana house owned by Murray.

At the conclusion of its evidence, the government dismissed its charges against Murray. The jury found Scroggins guilty of conspiracy, the only count on which he was charged. The jury convicted Jackson of conspiracy, and on three of the four mail fraud counts relating to the 51st Street fire; Jackson was acquitted on the six mail fraud counts involving the Troost and Indiana fires. Edmunds was acquitted on all counts. The jury could not reach a verdict as to Dancy on either the conspiracy or substantive counts. Dancy was later retried, and was found guilty on all charges filed against him: conspiracy and the seven mail fraud violations resulting from the 51st Street and Indiana fires.

Scroggins was sentenced to two years imprisonment on his conspiracy conviction. Jackson received concurrent five-year sentences on each of his three mail fraud convictions and on the conspiracy conviction. Dancy was sentenced to three years imprisonment on each of the seven mail fraud counts and on the conspiracy count, all to run concurrently. All three convicted defendants appeal.

II.

SCROGGINS AND JACKSON.

Single vs. Multiple Conspiracies.

The most troublesome issue in this appeal is raised by both Scroggins and Jackson. They contend that the government failed as a matter of law to prove the existence of the single conspiracy alleged in the indictment, and that the proof at most showed that two separate conspiracies were in operation: one involving the Agnes fire, and another aimed at executing the Indiana, Troost and 51st Street fires. Scroggins and Jackson argue that this variance between the government's pleading and its proof prejudiced their right to a fair trial. This argument is not shared by Dancy on appeal because at his retrial, all references to the Agnes fire were eliminated from the government's case. We agree that the government failed to prove the single conspiracy alleged and find that Scroggins and Jackson's conspiracy convictions must be reversed. We conclude, however, that Jackson's convictions on the three substantive mail fraud counts were unaffected by this error.

To resolve the question of whether the government's proof showed that a single conspiracy existed involving at least Scroggins and Jackson, we must determine "whether there was 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy." United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981). The agreement need not be express or formal, and its existence may be inferred from the actions of the parties. United States v. Wrehe, 628 F.2d 1079, 1082 (8th Cir.1980); United States v. Jackson, 549 F.2d 517, 530-531 (8th Cir.), cert. denied, 431 U.S. 923, 97 S.Ct. 2195, 53 L.Ed.2d 236 (1977).

Viewing the evidence in the light most favorable to the verdict, ¹ we find that no jury could reasonably conclude that Scroggins and Jackson were parties to a single overall agreement to commit acts of arson and mail fraud. The existence of a single agreement could have been inferred if the evidence had revealed that the alleged participants shared "a common aim or purpose." United States v. Bertolotti, 529 F.2d 149, 154 (2d Cir.1975); Hayes v. United States, 329 F.2d 209, 213-214 (8th Cir.), cert. denied, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). No such evidence was offered, however. There was testimony from which the jury could conclude that Scroggins had agreed with Morgan that the latter would burn Scroggins' rented dwelling and be compensated with a portion of the fraudulently obtained insurance proceeds. There is no evidence, however, from which the jury could infer that Scroggins had any intention of fostering illegal activity beyond the burning of his own dwelling. Similarly, the jury could have found that Jackson joined forces with Morgan, Dancy and others to execute a number of fires--but the Agnes fire was not one of them. The absence of a common aim or purpose is further revealed by the fact that, as the government admits, Scroggins in no way profitted from the later fires and Jackson received no proceeds from the Agnes fire. In sum, the evidence did not reveal "the common purpose of a single enterprise;" at most, it showed "similar purposes of * * * separate adventures of like character." Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946).

Further, there is no evidence of "mutual dependence and assistance" among Scroggins and the other prosecuted coconspirators. See United States v. Bertolotti, supra, 529 F.2d at 154. Scroggins did not help plan or execute the 51st Street, Troost or Indiana fires; in fact, there is no evidence that he even knew about their occurrence. The government concedes that neither Jackson nor Dancy had anything to do with the Agnes fire, and points to no evidence that they were aware of it.

Relatedly, we cannot infer "from the nature and scope of the operation, that each actor was aware of his part in a larger organization where others...