U.S. v. Utter, 95-2346

• Decision Date: 16 October 1996
• Docket Number: No. 95-2346,95-2346
• Citation: 97 F.3d 509
• Parties: 45 Fed. R. Evid. Serv. 1085 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Forrest Jimmy UTTER, Jr., a/k/a Biff, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 509

97 F.3d 509

45 Fed. R. Evid. Serv. 1085

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Forrest Jimmy UTTER, Jr., a/k/a Biff, Defendant-Appellant,

Cross-Appellee.

No. 95-2346.

United States Court of Appeals, Eleventh Circuit.

Oct. 16, 1996.

Mark L. Horwitz, Horwitz & Fussell, Orlando, FL, for Defendant-Appellant, Cross-Appellee.

Paul G. Byron, Tamra Phipps, Asst. U.S. Attys., Orlando, FL, for Plaintiff-Appellee, Cross-Appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before COX and BARKETT, Circuit Judges, and BRIGHT, ^* Senior Circuit Judge.

BRIGHT, Senior Circuit Judge:

A jury convicted Forrest J. Utter of conspiracy, mail fraud, arson, and using fire to commit a federal felony offense. The district court sentenced him to fifteen years imprisonment. Utter appeals, arguing that (1) the evidence was insufficient to support the convictions, (2) the district court abused its discretion by allowing the introduction of "extrinsic acts" evidence, (3) the imposition of a consecutive five-year sentence for use of a fire to commit conspiracy and arson violated double jeopardy, and (4) the government failed to establish the requisite nexus to interstate commerce. The government cross-appeals claiming sentencing error. Although the evidence presented by the government was thin, we conclude that it was sufficient to support the convictions and that the evidence established a substantial nexus with interstate commerce. We determine, however, that the district court abused its discretion by allowing the introduction of certain extrinsic evidence as "other crimes" evidence and remand the case for a new trial. Thus, we do not reach Utter's double jeopardy claim or the government's cross appeal.

I. BACKGROUND

In the early morning hours of September 2, 1991, fire completely destroyed Stormy's Seafood Restaurant (Stormy's) in New Smyrna Beach, Florida. Two firefighters, Doug Sapp and Mark Wilkes, were tragically killed as they attempted to fight the fire. The two firefighters were endeavoring to locate the source of the fire when they were overcome by smoke. On June 23, 1994, a federal grand jury indicted Utter on charges ensuing from the Stormy's fire.

In May of 1988, Utter and his wife, Susan, purchased Stormy's from Marion Yelvington. Yelvington retained a mortgage on the property. Although the property was deeded in Susan's name, Utter himself completely controlled the business. Prior to purchasing the restaurant, Utter had resided in Kentucky where he worked in the coal mining business. Although Utter and his wife divorced later in 1988, the divorce did not appear to effect the control or operation of the restaurant.

Within a year of purchasing Stormy's, Utter fell behind on the mortgage payments. Utter often made his payments late or requested Yelvington to hold the checks for a period of time before cashing them. Some checks were returned for insufficient funds. Yelvington's son, Conway, began assisting her efforts to obtain payments on the mortgage. Utter failed to pay property taxes on the restaurant, and Yelvington was forced to pay the taxes.

Utter also failed to pay the premiums owed his insurance carrier, and the restaurant's fire insurance lapsed. In April of 1991, Utter went to Jennings Insurance Agency, where he had previously obtained insurance on the property, and completed a new insurance application. Although the application requested information concerning "all claims or occurrences that may give rise to claims for the prior 5 years," Utter did not disclose that he had submitted a claim involving a 1988 fire which destroyed a house in Kentucky owned by Utter and his wife. Although the application was apparently approved, Utter never actually obtained insurance as he was unable to pay the premium on the policy.

In June of 1991, Conway Yelvington learned that the fire insurance on Stormy's had lapsed. Yelvington promptly purchased approximately $400,000 worth of fire insurance on the restaurant. Jennings later notified Utter that Yelvington had obtained insurance on the restaurant. On August 8, 1991, Yelvington served papers on Utter indicating his intention to foreclose on the property. Stormy's was destroyed by fire on September 2.

At trial, the government produced significant evidence of Stormy's poor financial condition. The evidence was intended to establish a motive for the alleged arson. As described above, the government presented evidence that Utter failed to keep current on the restaurant's mortgage, insurance and tax payments. The government also established that (1) the restaurant's sales and payroll taxes were behind in payment, (2) the restaurant's liquor license was in danger of being revoked for failure to pay the surcharge tax on alcohol sales, and (3) a substantial number of insufficient checks were drawn on Stormy's account.

The government also introduced evidence leading to the conclusion that the fire was an "inside job." First, although none of the employees smelled smoke or any flammable liquid or other odor while in the restaurant that night, the fire was in full blaze less than 30 minutes after the restaurant closed. Secondly, the government produced indirect evidence that Utter's mother, who worked at the restaurant, may have failed to set the building's alarm system that evening. In any event, the alarm failed to sound. Finally, although the expert witnesses presented by the prosecution did not conclusively state that the fire was an arson, they indicated that the fire was a "hot, high, fast fire, not indicative of an accidental or other type fire," and that the fire was "incendiary in nature." (Tr. at 1098). A forensic chemist examined a piece of ceiling insulation in the area where the fire was believed to have originated and found a petroleum distillate on the insulation.

Finally, the prosecution presented evidence of "threats" made by Utter to burn the restaurant. A former employee at the restaurant stated that she once heard Utter tell his brother that he would burn the restaurant before anyone took it from him. Lisa Jernigan, who was living with Utter prior to the fire, testified that she had heard him state that he would burn the restaurant rather than let Yelvington foreclose. Michael Herron, a long-time friend of Utter's, testified that Utter had stated that a small fire at the restaurant might be good because it would provide funds for remodeling. Both Jernigan and Herron, however, indicated that they thought the comments were "off-the-cuff" and not serious. The government also offered evidence that two years after the Stormy's fire, Utter threatened to "burn out" a tenant unless the tenant vacated within thirty days, and that a 1988 fire destroyed Utter's home in Kentucky while the home was in foreclosure.

The jury convicted Utter of conspiracy to commit mail fraud and arson in violation of 18 U.S.C. § 371, mail fraud in violation of 18 U.S.C. § 1341, arson in violation of 18 U.S.C. 844(i), and using a fire to commit federal felony offenses in violation of 18 U.S.C. § 844(h). The court sentenced Utter to fifteen years imprisonment.

II. DISCUSSION

A. Sufficiency of the Evidence

In challenges to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the government and considers whether a reasonable jury could find the defendant's guilt beyond a reasonable doubt. United States v. Green, 40 F.3d 1167, 1173 (11th Cir.1994), cert. denied, --- U.S. ----, ----, 115 S.Ct. 1809, 2262, 131 L.Ed.2d 733, 132 L.Ed.2d 268 (1995). In judging the sufficiency of the evidence, the standard applied is the same whether the evidence is direct or circumstantial. United States v. Mieres-Borges, 919 F.2d 652, 656-57 (11th Cir.1990), cert. denied, 499 U.S. 980, 111 S.Ct. 1633, 113 L.Ed.2d 728 (1991). Proof may be established through circumstantial evidence or from inferences drawn from the conduct of an individual. Green, 40 F.3d at 1173.

The government concedes that the evidence against Utter is entirely circumstantial. Although this is a close case, we conclude that the government presented sufficient evidence to support the convictions. First, the government offered substantial evidence that the restaurant was having financial difficulties and was in foreclosure at the time of the fire. Thus, the jury could conclude that Utter had a motive to commit arson. Second, the fire examiners testified that, for a number of reasons, the fire was consistent with arson and inconsistent with an accidental fire. ¹ The government also presented evidence that Utter had talked about burning the restaurant on a few occasions prior to the fire. In connection with the mail fraud charge, the government established that Utter caused a proof of loss to be mailed to the insurance company in which he stated that he did not cause the fire. Once the jury determined that Utter committed the arson, it could conclude that Utter's claim was fraudulent. Because we reverse and remand for a new trial based on evidentiary error, the sufficiency of the evidence claims require no further analysis. See United States v. Veltmann, 6 F.3d 1483, 1491 (11th Cir.1993).

B. Introduction of Extrinsic Evidence

Utter challenges the introduction of certain extrinsic evidence. First, the prosecution introduced evidence that approximately two years after the fire at Stormy's, Utter engaged in a dispute with an individual who rented residential property from him and threatened to burn the individual's belongings if she did not vacate his property. Secondly, the prosecution presented evidence that a fire had destroyed Utter's home in Williamsburg, Kentucky, approximately three years prior to the Stormy's fire. The Kentucky home was in foreclosure at the time of the fire. Finally, Utter challenges the introduction of evidence concerning a letter to a mortgage company which indicated that a gift of $82,500 was...