U.S. v. Patel

• Decision Date: 27 May 2004
• Docket Number: No. 02-2516.,02-2516.
• Citation: 370 F.3d 108
• Parties: UNITED STATES of America, Appellee, v. Umesh PATEL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

370 F.3d 108

UNITED STATES of America, Appellee, v. Umesh PATEL, Defendant, Appellant.

No. 02-2516.

United States Court of Appeals, First Circuit.

Heard March 2, 2004.

Decided May 27, 2004.

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Douglas S. Brooks, with whom Thomas M. Hoopes and Kelly, Libby & Hoopes, P.C. were on brief, for appellant.

William C. Brown, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

On January 17, 2001, Umesh Patel was indicted for setting fire to his business and then attempting to collect insurance proceeds for the resulting damage. On May 17, 2002, following a fourteen-day jury trial, Patel was convicted on one count of arson, see 18 U.S.C. § 844(i), two counts of mail fraud, see 18 U.S.C. § 1341, and one count of using fire to commit mail fraud, see 18 U.S.C. § 844(h)(1). Patel was sentenced to 204 months of imprisonment: 84 months to run concurrently for arson and mail fraud and 120 months to run consecutively for using fire to commit mail fraud.¹ On appeal, Patel argues that there was insufficient evidence of arson and that his sentence violated the Double Jeopardy Clause of the Fifth Amendment. We affirm.

SUFFICIENCY OF THE EVIDENCE

Patel claims that there was insufficient evidence that he committed arson. See Fed.R.Crim.P. 29. In evaluating this claim:

[W]e must determine whether the evidence, taken in the light most favorable to the government — a perspective that requires us to draw every reasonable inference and to resolve credibility conflicts in a manner consistent with the verdict — would permit a rational trier of fact to find each element of the crime[] charged beyond a reasonable doubt. The government can meet this burden by either direct or circumstantial evidence, or by any combination of the two. Moreover, the government need not disprove every hypothesis consistent with the defendant's innocence; rather, it is enough that a rational jury could look objectively at the proof and supportably conclude beyond a reasonable doubt that the defendant's guilt has been established.

United States v. Santana, 175 F.3d 57, 62 (1st Cir.1999)(internal quotations and citations omitted).

Arson requires proof that the defendant (1) maliciously damaged or destroyed (2) by fire or an explosive (3) a building used in interstate commerce. See 18 U.S.C. § 844(i); United States v. Ruiz, 105 F.3d 1492, 1499 (1st Cir.1997). The government sought to prove that, on February 7, 2000, Patel committed arson by setting fire to the Crossing Corner Market, a convenience store that Patel owned and operated in Beverly, Massachusetts. Patel argues that he is entitled to a judgment of acquittal because the evidence was insufficient to establish (1) that the fire was set intentionally and (2) that he was the one who set the fire.

The government introduced ample evidence that the fire was set intentionally. Two "fire cause" investigators testified that the fire had been purposely set at two separate locations in the store. Wayne Miller, a "fire and explosion analyst," testified that, based on his investigation, the fires began on the main floor of the store near the beverage coolers and in the basement under the electrical panels. He further testified that "the fire was intentionally set using an open flame and readily combustible material." Similarly, Michael Hennessy, a fire investigator certified by the International Association of Arson Investigators and National Association of Fire Investigators, concluded, based on his own investigation, that the fire was "incendiary" in nature and had two independent points of origin on the first floor and in the basement. He further concluded that the fire was started "by a human act and an open flame."

To support Miller's and Hennessy's conclusions, the government presented other testimony confirming that the fire pattern indicated that separate fires had been set at two locations in the store. In addition to evidence affirmatively demonstrating an intentionally lit fire, the government presented testimony ruling out other possible accidental causes for the fire, including a malfunction in the electrical and mechanical components present in the building.

Patel claims that the jury was not entitled to believe this testimony because the Beverly Fire Department investigator, Louis Bennett, the first investigator to inspect the scene, testified that the fire was caused by a malfunction in the compressor that operated beneath the cooler on the first floor. As indicated above, other witnesses offered contrary testimony. Where the jury hears conflicting testimony, it decides which version to credit. See United States v. O'Brien, 14 F.3d 703, 707 (1st Cir.1994) ("[A] jury can freely choose to credit particular testimony while discounting other testimony that arguably points in a different direction."). There were several reasons that the jury could have decided not to credit Bennett's testimony. First, Bennett testified that his conclusions were only "preliminary." Second, he admitted that he did not fully inspect the compressor. Third, there was other testimony that he did not do "a thorough job" investigating the scene. Fourth, he stated that subsequent information showing that the compressor may not have been the cause of the fire opened an "avenue beyond [his] level of expertise." Finally, at one point during the investigation, he changed his opinion from the "possibility of an accidental [fire] to the possibility of an incendiary suspicion."² In short, while reasonable people perhaps could have credited Bennett's testimony, we do not sit "as a thirteenth juror who may set aside a verdict because we [may] have reached a different result." Ruiz, 105 F.3d at 1502 (internal quotations and citation omitted).

Patel next argues that, even if someone intentionally set the fire, there was inadequate proof that it was he. The government presented evidence that, even

though Patel did not own the building in which his store was located, he carried a $75,000 insurance policy on the store's contents. The government also showed that Patel was in dire financial straits on the date of the fire. In the years prior to the fire, sales at his store had decreased, and he was relying, to a large degree, on revenues generated by lottery sales. In 1999, the year before the fire, lottery sales accounted for 40% of the store's net income. Just prior to the fire, the Massachusetts Lottery Commission had revoked Patel's lottery license because of his repeated failure to pay the Commission. A week before the fire, the Commission deactivated Patel's lottery machines and sent a representative to Patel's store to retrieve the instant game scratch tickets. On the date of the fire, Patel owed the Commission over $40,000.

Besides lottery debt, Patel was suffering other financial problems. For example Patel had failed to pay a supplier a $5,500 debt, and this debt had been referred to an attorney for collection. There was also evidence that Patel had bounced checks to several other vendors. The month before the fire, Patel had written over $10,000 in checks for which there were insufficient funds.

In addition to Patel's financial difficulties, the government presented evidence that, when the fire began, Patel was alone in the store. Further, in the days before the fire, Patel told several people that he thought that the circuit breakers in his store were a fire hazard. However, after the fire, he denied making such statements.

Patel contends that this evidence was insufficient to convict him of arson because there was no evidence establishing a direct link between him and the fire. It is true that the evidence inculpating Patel was largely circumstantial. Circumstantial evidence "asserts something else from which the trier of fact may either (i) reasonably infer the truth of the proposition or (ii) at least reasonably infer an increase in the probability that the proposition is in fact true." Ruiz, 105 F.3d at 1500 (internal quotations and citations omitted). A guilty verdict may be based entirely on circumstantial evidence. See United States v. Scharon, 187 F.3d 17, 21 (1st Cir.1999); United States v. Andujar, 49 F.3d 16, 20 (1st Cir.1995); United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991).

Here, the circumstantial evidence was sufficient for the jury to conclude that Patel set the fire. As discussed above, there was ample evidence that the fire was set intentionally. Further, the evidence showed that (1) Patel was alone at the time of the fire, giving him an opportunity to commit the crime, and (2) he had substantial financial troubles, providing him with a motive. In addition, Patel's pre-fire warnings that there might be an electrical fire in his store could have been interpreted as an attempt to cover-up the crime by offering a false explanation for the fire. Taken together, this evidence could lead a reasonable jury to conclude that Patel had set the fire.³

Recently, the Eighth Circuit rejected a similar sufficiency challenge. In United States v. Schnapp, 322 F.3d 564, 566 (8th Cir.2003), the defendant's parents owned a convenience store that the defendant managed. The store, which was covered by fire insurance, was suffering financial difficulties. See id. at 567-68. The defendant was alone in the store just before the fire began and there was evidence that the fire was set intentionally. See id. at 566-67. The court concluded that these facts supported the conviction because the evidence showed that someone had committed arson and that the defendant had "the opportunity and means to commit the crime." Id. at 573.

The Seventh Circuit reached a similar conclusion in United States v. Lundy, 809 F.2d 392 (7th Cir.1987). In Lundy, the defendant also owned a convenience store, covered by fire insurance, that was suffering financially. Se...