U.S. v. Shively

• Decision Date: 15 March 1991
• Docket Number: No. 90-8085,90-8085
• Citation: 927 F.2d 804
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Roy SHIVELY, Kim Renee Shively and George Russell Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 804

927 F.2d 804

UNITED STATES of America, Plaintiff-Appellee, v. Michael Roy SHIVELY, Kim Renee Shively and George Russell

Johnson, Defendants-Appellants.

No. 90-8085.

United States Court of Appeals, Fifth Circuit.

March 15, 1991.

Paul Williams (court appointed), Midland, Tex., for Michael Shively.

Ray P. Moudy (court appointed), Midland, Tex., for Kim Shively.

Thomas S. Morgan (court appointed), Midland, Tex., for Johnson.

Philip Police, Leroy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for the U.S.

Appeals from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, RONEY ^* and DUHE, Circuit Judges.

CLARK, Chief Judge:

Michael Roy Shively (Shively or Mike Shively), Kim Renee Shively (Renee Shively) and George Russell Johnson (Johnson) were tried on a wide-ranging sixteen count indictment alleging, among other things, conspiracy, arson and various fraudulent acts. The jury returned a verdict of guilt as to every count. The defendants raise numerous and disparate issues on this appeal from their convictions and sentences. We affirm the judgment of the district court in every regard except for the convictions of Mike and Renee Shively for witness intimidation. We reverse their convictions on that count and remand for resentencing.

I

On June 22, 1984, Mike and Renee Shively were vacationing in New Mexico. At approximately 2:00 a.m. their residence in Odessa, Texas, caught fire, the damage being confined to the kitchen, garage, and an automobile parked in the garage. Earlier in June, a neighbor had observed a U-Haul trailer at the residence. Unidentified men were carrying items from the house into the trailer. On the evening of June 21, four hours before the fire, this same neighbor observed a Lincoln Continental stopped at or near the home, with three or four occupants. Fire investigators discovered clear evidence of arson.

Upon their return from New Mexico the next day, the Shivelys initially denied that anyone had been staying at their home. Nevertheless, telephone records later revealed that someone had called their home several times from their hotel room in New Mexico. It was thereafter determined that Johnson, a long-time friend of Mike Shively, rented a Lincoln Continental in Arkansas, drove to Odessa several days before the fire, and returned the car on June 24. Johnson admitted that he had been present at the residence on the night of the fire. Mike Shively later told an employee that he and Johnson caused the blaze.

Although fire investigators found no evidence of forced entry, the Shivelys reported the fire as a burglary and arson to their insurance company. They submitted a claim for theft and fire loss of $84,540, but the insurance company refused to pay because it suspected insurance fraud. The Shivelys sued the insurance company in state court, ultimately settling their claim for $25,000. This settlement followed the deposition of Ronnie Coplen, one of Mike Shively's employees, who corroborated Shively's version of the fire and the items lost. Coplen was later a witness for the prosecution who testified at the criminal trial.

Investigators from the Bureau of Alcohol, Tobacco and Firearms (ATF) and the FBI began looking into the fire. During the course of this investigation, they discovered that Mike Shively had several unpaid judgments from Louisiana courts dating from the late 1970s and early 1980s. They also found evidence that he had on several occasions altered his social security number to obtain credit for himself and for Best Services, a trucking company he operated. Johnson also apparently altered his social security number to open a bank account when he moved to Odessa in 1985.

The investigators discovered evidence that in 1984 and 1985, Mike Shively and Johnson defrauded KBK Financial, Inc., (KBK) a Houston company that purchased accounts receivable from Best Services. Finally, the investigators were informed that Mike and Renee Shively had threatened Ronnie Coplen and his wife at a time when Coplen was a witness in the Shivelys' state court proceeding against their insurance company.

A federal grand jury returned a ten-count indictment against the Shivelys and Johnson on June 15, 1989, almost five years after the fire. Superseding indictments on August 31 and November 2 realleged the previous counts and added others. The government went to trial on the sixteen counts alleged in the November 2 indictment. Count 1 charged that the Shivelys and Johnson conspired to destroy by fire the Shively residence and a vehicle parked therein. Count 2 charged the three with the substantive arson offense. Counts 3 through 7 charged Mike Shively with fraudulent use of a social security number not his own to obtain credit. Count 8 charged Johnson with fraudulent use of a social security number not his own to establish an account at a Midland bank. Count 9 charged Mike and Renee Shively with intimidating a witness. Count 10 charged the three with wire fraud related to the arson. Counts 11, 12, 14, 15, and 16 charged Mike Shively and Johnson with mail fraud. Count 13 charged Mike Shively and Johnson with receiving and disposing of currency that had moved in interstate commerce, knowing it to be stolen, unlawfully converted, and taken by fraud.

A jury convicted the Shivelys and Johnson under all counts of the November indictment. Mike Shively was sentenced to consecutive five-year terms on counts 1, 2, 9, and 10. Concurrent five-year terms imposed on the remaining counts were suspended on condition of satisfactory service of a five-year term of probation to commence after expiration of his consecutive prison terms. Renee Shively received three-year terms of imprisonment on each of counts 1, 2, 9, and 10. The court suspended execution of the prison terms imposed on counts 2, 9 and 10, which were concurrent to each other but consecutive to count 1, on condition of satisfactory service of a three-year term of probation to follow her imprisonment on count 1. Johnson was sentenced to the following consecutive terms of imprisonment: five years for count 1, ten years for count 2, and five years for count 10. On Johnson's other convictions, the court imposed suspended, concurrent five-year terms of imprisonment and five years on probation following his release from prison. All three were ordered to make restitution and to pay special assessments.

II Sufficiency of the Evidence

Through various arguments, all three defendants challenge in some way the sufficiency of the evidence supporting conviction under counts 1, 2, 3, 6, 9, 10, 12, 14, 15, and 16. On any such challenge, the evidence is sufficient if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. When reviewing the sufficiency of the evidence to support a conviction, the facts and all reasonable inferences therefrom will be viewed in the light most favorable to the finding of guilt. United States v. Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir.1990).

1. Counts 1 and 2

Count 1 charged all three defendants with conspiracy to destroy by fire the Shivelys' home and automobile to collect and share in the insurance proceeds, in violation of 18 U.S.C. Secs. 371, 844(i). Count 2 charged them all with the substantive arson, in violation of 18 U.S.C. Sec. 844(i). The substantive statute subjects to criminal penalty any person who "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." 18 U.S.C. Sec. 844(i). Mike Shively and Johnson both argue that this statute does not cover their crime, asserting that the residence and automobile were private, not commercial, and therefore were not used in, and did not affect, interstate commerce.

For this argument, Shively and Johnson rely primarily upon United States v. Mennuti, 639 F.2d 107 (2d Cir.1981), and United States v. Monholland, 607 F.2d 1311, 1314-16 (10th Cir.1979), both of which narrowly construed the interstate commerce nexus required by this statute in regard to private residences and vehicles. Mennuti and Monholland, however, predated the Supreme Court's recent pronouncements on this statute, which indicated that the sweep of Sec. 844(i) is co-extensive with the outer limit of congressional power under the Commerce Clause. See Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985). Specifically, the Supreme Court determined that an expansive construction was required because both the phrasing of the statute and its legislative history express "an intent by Congress to exercise its full power under the Commerce Clause." Id. at 859, 105 S.Ct. at 2456 (footnote omitted). In the wake of Russell, we have previously questioned the interpretation given this statute in Mennuti and Monholland. See United States v. Patterson, 792 F.2d 531, 534-36 (5th Cir.), cert. denied, 479 U.S. 865, 107 S.Ct. 220, 93 L.Ed.2d 149 (1986). In Patterson, we determined that property is "used" within the meaning of Sec. 844(i) when it has "some relationship" to an activity alleged to affect interstate commerce. Id. at 534.

Even a de minimis effect on interstate commerce will suffice to support Congress' ability to enact a criminal statute under the Commerce Clause. United States v. Stillwell, 900 F.2d 1104, 1110 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 111, 112 L.Ed.2d 81 (1990). In Stillwell, the Seventh Circuit determined that Russell compelled the conclusion that "Congress intended Sec. 844(i) to reach every private residence it constitutionally has the power to reach, whether or not the residence is used for commercial purposes." Id. at 1109. As such, the statute could constitutionally be applied to arson of a private residence with no business...