United States v. Hans

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5116

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC PRESTON HANS,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:05-cr-01227-HMH-1)

Argued: March 25, 2009 Decided: May 29, 2009

Before DUNCAN, Circuit Judge, Robert J. CONRAD, Jr., Chief
United States District Judge for the Western District of North
Carolina, sitting by designation, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Conrad wrote the
opinion, in which Judge Duncan and Judge Schroeder joined.

ARGUED: Benjamin Thomas Stepp, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, South Carolina; Richard Walter Vieth,
HENDERSON, BRANDT & VIETH, Spartanburg, South Carolina, for
Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: W.
Walter Wilkins, United States Attorney, Columbia, South
Carolina, Regan A. Pendleton, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
CONRAD, Chief District Judge:

On November 16, 2005, a grand jury for the District of

South Carolina returned a one-count indictment against Eric

Preston Hans. The indictment charged Hans with maliciously

damaging and destroying, and attempting to damage and destroy,

by means of fire, the Comfort Inn and Suites at 831 Congaree

Road in Greenville, South Carolina, a building used in

interstate commerce, resulting in the death of six individuals

and in bodily injury to eleven individuals. For this 18 U.S.C.

§ 844(i) violation, the Government sought the death penalty.

The case went to trial on July 23, 2007. On August 2,

2007, the jury returned a guilty verdict. The jury was unable

to reach a unanimous verdict as to a sentence.

On October 25, 2007, the district court sentenced Hans to

life in prison and the court entered judgment on October 29,

2007. Hans timely appealed his sentence and conviction. We

hold that the district court did not violate Hans’s Sixth

Amendment Rights, nor did the court abuse its discretion when it

denied Hans’s motion for a mistrial. Further, we hold that the

Government presented sufficient evidence at trial to support

3
Hans’s conviction. We therefore affirm the district court’s

decision.

I. Relevant Facts

A. The Fire

On January 25, 2004, at approximately 4:22 a.m., the desk

clerk at the Comfort Inn and Suites at 831 Congaree Road,

Greenville, South Carolina (the “Comfort Inn”) made a 9-1-1 call

reporting a fire at the hotel. Approximately four minutes after

the first 9-1-1 call, Fire Engine 2 from Wade Hampton Fire

Department arrived on the scene. The firemen immediately

reported rolling flames and heavy smoke at the north exit door

of the third floor of the hotel, a five floor building. The

third floor exit door opens to the ground level at the back of

the Comfort Inn. 1 According to the first firefighter on the

scene, flames were coming out of the top of the door and rising

upward about two feet.

1
On the evening of the fire, the security access to the
hotel through the third floor exit door was not working, so
anyone could enter that door.

4
 The firemen suppressed the fire within several minutes.

The Greenville County Sheriff’s Office Deputies joined the

firemen and assisted with the rescue of hotel guests.

The firemen reported that the area outside the rear third

floor door was littered with cardboard and Styrofoam packing

material. There was extensive fire damage in the area around

the door and nearby hallways. Investigators determined that no

accelerant was used, so the only way the extreme heat patterns

could have been produced was by a person placing combustible

materials (i.e., the cardboard boxes and Styrofoam) in the foyer

area and igniting them with a direct flame. A stack of

cardboard boxes inside the foyer had burned from the top down

and was still smoldering during the initial stages of the

investigation. Investigators concluded that arson caused the

fire, and that the fire was likely started between 4:05 a.m. and

4:10 a.m. on January 25, 2004.

B. Relationship between Cromer and Canty

As the investigation continued, law enforcement officers

learned that one of the deceased victims of the fire, Melba

Canty, and a surviving victim, Zachery Cromer, had a turbulent

relationship. Cromer and Canty had a sixteen-month old son,

5
who, along with Canty, died in the fire at the Comfort Inn.

Further, investigators found that Canty was friends with the

appellant, Hans, and that Hans and Cromer held significant

animosity toward each other in relation to Cromer’s treatment of

Canty. Cromer believed that Hans was extremely jealous of

Cromer’s relationship with Canty and that Hans continually

interfered in their lives. Cromer told law enforcement that his

house was broken into a few months prior to the fire, and that

Hans taunted him on the phone about being the one who committed

the burglary.

A couple of weeks before the fire, Canty needed a place to

stay and went to live with Hans. The week prior to the fire,

while Canty was living with Hans, the situation between Hans and

Cromer escalated with numerous belligerent phone calls back and

forth.

According to Cromer, he and Canty decided that they needed

to spend some time together with their son to try and mend their

relationship. On January 24, 2004, at approximately 10:30 p.m.,

6
a few hours before the fire, Hans rented a third floor room for

one week for Canty and her son at the Comfort Inn.

Later that same evening, Cromer arrived at the Comfort Inn. 2

After Cromer’s arrival, he and Hans argued on the phone. Cromer

told Hans that he and Canty were back together and that Hans

could do nothing to change that. Cromer testified that after

telling Hans that he and Canty were back together, Hans replied,

“she’s not going to stay up there with you. I’ll make sure of

it.” (J.A. 367). Telephone records confirm that Hans and

Cromer exchanged sixty-six phone calls on January 24. Cromer

acknowledged that during some of these calls he taunted Hans

about Canty.

Witnesses later verified that Cromer left the room around

2:00 a.m. on the morning of January 25th, and rode with two

friends to a nearby Waffle House to get take-out food to bring

back to Canty. Cromer returned to the Comfort Inn with the

food. Cromer reported that there were no boxes or debris on the

2
As part of their effort to mend their relationship, Canty
agreed to stop spending time with Hans, and Cromer agreed to
stop spending time with one of his female friends.

7
steps or in the walkway at the time but that there may have been

some boxes stacked next to the rear exit door. Cromer and Canty

then went to sleep and were later awakened by the fire alarms.

Cromer survived the fire, but Canty, her son, and four other

individuals died in the fire.

C. After the Fire

Shortly after the fire, investigators located Hans at the

Crowne Plaza Hotel, which is next to the Comfort Inn. Hans

waived his Miranda rights and agreed to be interviewed. In his

statement to the police, he claimed the following:

• After he checked Canty in at the Comfort Inn, he went to
Platinum Plus, a nearby strip club. 3

• He later left Platinum Plus, went home, and fell asleep.

• After receiving a call from a friend, he returned to
Platinum Plus.

• He stayed at Platinum Plus until around 3:30 a.m.

• He then attempted to go to a nearby storage unit to drop
some things off but could not get there because a police
car was blocking the road.

3
Platinum Plus strip club was only .9 miles from the Comfort
Inn and Hans was a regular patron at both.

8
• Next, he went back to Platinum Plus; on his way there,
he saw that the Comfort Inn was on fire.

• He stayed at Platinum Plus a few minutes before going
back to the storage unit; this time he was able to get
through.

Hans’s statements to police were contradicted by video

footage from Platinum Plus showing that Hans left Platinum Plus

at 4:01 a.m. Fire investigators estimated that someone started

the fire between 4:05 a.m. and 4:10 a.m. Video footage from a

Lowe’s parking lot camera across the street from the Comfort Inn

showed Hans driving through the parking lot at 4:15 a.m. Video

footage from the BP gas station camera, also across the street

from the Comfort Inn, showed Hans making a purchase from 4:22 to

4:23 a.m. The Comfort Inn records showed the fire being called

in at 4:22 a.m. and the 9-1-1 records showed the call about the

fire being received at 4:24 a.m. Video footage from Platinum

Plus showed Hans arriving in the parking lot again at 4:29 a.m.

and walking into the building at 4:31 a.m. Upon returning to

Platinum Plus at 4:31 a.m., Hans told several individuals that

he had not gone home because the Comfort Inn was on fire and

9
there was a roadblock. 4 According to police records, the first

roadblock was set up at 4:32 a.m., after Hans returned to

Platinum Plus. Numerous witnesses testified that Hans was not

concerned about the fire, even though he knew that Canty and her

son were staying at the hotel. Platinum Plus video footage

showed Hans leaving again at 4:55 a.m. The records at the

storage unit show that he checked into his storage unit at 5:03

a.m.

In July 2007 the case was tried capitally. During jury

selection, Hans sought to disqualify four jurors, because, he

claimed, they were biased. The district court refused to

disqualify them. Hans then used his peremptory challenges to

disqualify these jurors. The district court sua sponte

disqualified another juror for bias.

At trial, Canty’s aunt, Rolissa Jordan, testified that Hans

told her after the fire that the last thing Canty told Hans was

that she and Hans could no longer be friends because Canty was

4
The government introduced evidence that Hans would have
headed in a direction away from the roadblock and the Comfort
Inn if, as he told his friends, he intended to head home after
leaving Platinum Plus.

10
going back to Cromer. Jordan testified that Canty, in a similar

vein, also told Jordan that she was going back to Cromer.

Hans’s housemate, Rodney Babb testified at trial that the day

after the fire Hans said either “I did something bad” or

“Something bad happened.” (J.A. 997). These statements

differed from the statement Babb gave police earlier, at which

time Babb only said that Hans said “I done something really

bad.” 5 The prosecutor later impeached Babb with his prior

inconsistent statements to the police. Additionally, Curtis

Kricke, an inmate incarcerated with Hans on an unrelated charge

in December 2005, testified that Hans told Kricke that he, Hans,

started the fire at the Comfort Inn. 6

5
Previously, Hans’s housemates, Rodney Babb and Jill
LeGreca, told the police that the day after the fire Hans
stated, “I’ve done something really bad.” Hans also stated that
he could not tell Babb about it because Babb had a baby. (J.A.
995-1003; 1017; 1271). Babb became scared and called the police
in the middle of the night to report this statement. Babb and
LeGreca stayed that night at Babb’s parent’s house.
6
Although some of the details of Kricke’s testimony did not
match the actual incident (e.g., Kricke stated that Hans claimed
to have used an accelerant to start the fire), the account of
the confession and the inconsistencies were put before the jury.

11
 During trial one of the prosecutors asked about an

“unrelated” criminal investigation in which Hans was involved.

Hans objected that the evidence was prejudicial and moved for a

mistrial. The district court sustained the objection, but

denied the motion for mistrial. The court gave a curative

instruction.

On August 2, 2007, the jury returned a guilty verdict. On

August 10, 2007, the sentencing phase of Hans’s trial ended with

the jury unable to reach a unanimous verdict on the imposition

of the death penalty. On October 25, 2007, the district court

sentenced Hans to life in prison. Hans timely appealed, raising

three issues: 1) whether the jury selection process violated

Hans’s Sixth Amendment rights; 2) whether the mention of Hans’s

unrelated criminal activity warranted a mistrial; and 3) whether

the Government presented sufficient evidence for Hans’s

conviction. We address each in turn.

II. Hans’s Right to an Impartial Jury

Hans contends that the district court committed three

errors during jury selection: 1) qualifying four jurors despite

their allegedly pro-death penalty responses to certain voir dire

questions about the death penalty; 2) not granting Hans’s

motions to excuse these four potential jurors for cause; and 3)
12
dismissing Juror 98 for cause after Juror 98 said that he was

ambivalent about whether the Government had the right to take a

life. This Court recognizes the district court’s crucial role

in assessing demeanor and credibility during jury selection.

Consequently, we review challenges to the jury selection with

great deference to the trial court. Our review is for abuse of

discretion. See United States v. Jones, 608 F.2d 1004, 1007

(4th Cir. 1979). Hans’s first and second contentions are

considered together.

A. Jurors Removed with Peremptory Challenges

Hans argues that the responses provided by four jurors

during voir dire reflected bias in favor of the death penalty.

Hans requested that each of these potential jurors be removed

for cause and the court denied the request. After the court

qualified these jurors, Hans struck all four jurors with

peremptory challenges. A “trial court’s refusal to strike a

juror for cause does not affect the right to an impartial jury

if the defense in fact strikes the juror with a peremptory

challenge.” Satcher v. Pruett, 126 F.3d 561, 574 (4th Cir.

1997).

Thus, with respect to these four jurors, Hans’s only

alleged injury is the loss of his peremptory challenges. Yet,

it is well settled that the loss of a peremptory challenge does
13
not violate a defendant’s constitutional right to an impartial

jury because “peremptory challenges are not of constitutional

dimension.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988).

Therefore, the district court did not violate Hans’s Sixth

Amendment right to an impartial jury by either the qualification

of the four potential jurors or by the denial of the request to

strike the jurors for cause.

B. Dismissal of Juror by the Court

Next, Hans challenges the district court’s disqualification

of Juror 98. Hans argues that Juror 98's statement during voir

dire that he was “unsure that the Government had the right to

take a life,” (J.A. 100), should not have disqualified the

juror. Further, he argues that the court created a pro-

prosecution jury by dismissing such a juror.

In order to sustain a claim that a jury was not impartial

on a question of conviction, a defendant must show that a juror

who actually sat on the jury was biased, not that an allegedly

impartial juror was improperly dismissed. See id. at 86 (“Any

claim that the jury was not impartial . . . must focus . . . on

the jurors who ultimately sat” on the jury). In this case, Hans

presents no evidence that the sitting jurors were biased toward

the death penalty. Indeed, the jury here did not sentence Hans

14
to death. 7 The trial court’s dismissal of Juror 98 did not

violate Hans’s Sixth Amendment right to an impartial jury.

III. Hans’s Motion for a Mistrial

Hans next contends that the trial court erred in denying

his motion for mistrial after the Government presented

prejudicial testimony of possible unrelated criminal activity.

At the end of the second day of its case, the Government

called Investigator Mark Justice of the Greer Police Department

who testified that he obtained a search warrant for Hans’s

residence and seized items from the residence. The search

warrant was in an unrelated case. The Greer Police Department

7
The Supreme Court in Bumper v. North Carolina, upheld the
imposition of life in prison despite the contention that the
court dismissed jurors with hesitations about the death penalty
and found that the “decision in Witherspoon does not govern the
present case, because here the jury recommended a sentence of
life imprisonment.” 391 U.S. 543, 545 (1968). The Court
reiterated this distinction in Morgan v. Illinois, reversing a
death sentence based on inadequate voir dire, but noting that
this decision had “no bearing on the validity of petitioner’s
conviction.” 504 U.S. 719, 739 n.11 (1992); see also Gray v.
Mississippi, 481 U.S. 648, 650-51, 668 (1987) (observing that
the Witherspoon error means “a death sentence imposed by the
jury cannot stand,” and reversing judgment only “insofar as it
imposes the death sentence”).

15
turned over some of the seized items to the Bureau of Alcohol,

Tobacco, and Firearms (“ATF”) for its investigation of the

Comfort Inn fire. Hans objected to the Government’s questions,

which were prefaced by the comments that the search warrant was

“completely unrelated to this case” and “[h]ad absolutely

nothing to do with this.” (J.A. 588-89). He also objected to

Investigator Justice’s statement that ATF looked through the

items and determined that some of the items were “necessary for

their investigation.” (J.A. 589).

Hans claims that the Government insinuated that he was

involved in other criminal activity beyond the accusation of

arson through this line of questioning. Upon commencement of

the third day of the Government’s case, Hans moved for a

mistrial based on the questioning by the Government and the

testimony of Investigator Justice from the previous afternoon.

The district court agreed with Hans, stating, “[i]t was

improper to ask the questions the way they were asked because it

did reference possibly another criminal charge against this

defendant.” (J.A. 602). However, the district court denied the

motion for a mistrial, and Hans accepted the district court’s

offer of a curative instruction in accordance with the guidance

of United States v. Martin, 756 F.2d 323 (4th Cir. 1985). See

id. at 328 (“Before granting a mistrial, the court should always
16
consider whether the giving of a curative instruction or some

alternative less drastic than a mistrial is appropriate.”).

We review a trial court’s decision to grant or deny a

mistrial for abuse of discretion. United States v. Guay, 108

F.3d 545, 552 (4th Cir. 1997). We will only disturb a decision

under the most extraordinary of circumstances: a showing of an

error that prejudiced the defendant’s substantial rights. See

United States v. Hayden, 85 F.3d 153, 158 (4th Cir. 1996). In

examining possible prejudice, a court must look at the complete

record and consider the offending actions in light of the

totality of circumstances. United States v. Nyman, 649 F.2d

208, 211-12 (4th Cir. 1980). This Circuit has adopted a three-

factor framework to aid this analysis, looking at: (1) the

closeness of the case; (2) the centrality of the issue affected

by the error; and (3) the district court’s mitigating steps.

United States v. Callanan, 450 F.2d 145, 151 (4th Cir. 1971).

The evidence against Hans was substantial. Notwithstanding

Hans’s argument of a possible alternative arsonist, the case was

not close. Ample evidence, including: video footage showing

Hans near the Comfort Inn both immediately before and after the

fire started, Hans’s threatening statements to Cromer before the

fire, the time during which Hans was unaccounted for, Hans’s

statements to his roommates after the fire, his inconsistent
17
statements to investigators about where he was during that

night, and Hans’s confession to a cellmate demonstrates the

strength of the Government’s case.

The second factor also tips in the Government’s favor.

Considering all of the testimony regarding drug use, drug

possession, time at strip clubs, and other generally

questionable behavior, the brief mention of a search of Hans’s

home in an unrelated matter was not central to the question of

guilt or Hans’s credibility. Hans’s credibility was at issue in

the timeline he provided police and the Government used

surveillance video to show deceit in Hans’s statements to the

police. The questioning by the Government which implied Hans’s

possible involvement in other criminal activity was not elicited

to show Hans’s duplicity; instead, the questions appear to be

merely an unpolished attempt to establish a chain of custody for

certain items. Lack of intent by the Government does not

exonerate it nor would it undo a harm if one existed, but the

context of the questioning is important. The Government did not

ask the question during a high pressure moment in the trial; it

was asked during mundane chain of custody questioning. The

Government had already presented evidence of other criminal

behavior related to Hans. Hans’s credibility and law abiding

status were already severely damaged; these passing references
18
to a search warrant in an unrelated matter were not dispositive

to any central issue in the case.

Finally, the district court’s curative instruction

mitigated any possible prejudice caused by the improper

questioning. Absent extreme circumstances, we presume that a

jury will follow instructions to disregard potentially

prejudicial evidence. United States v. Johnson, 114 F.3d 435,

444 (4th Cir. 1997).

The district court agreed that the Government’s questions

were improper. Yet, the district court reminded counsel that an

instruction might bring more attention to the issue than just

moving forward. Defense counsel still desired the instruction,

and the court provided a well-worded instruction to the jury. 8

8
The court gave the jury the following curative instruction:
“Before the Government calls its next witness I want to advise
you that yesterday one of the Government’s witnesses, an
officer, brought in evidence about a seizure of certain evidence
from the defendant pursuant to a search warrant. I believe he
was asked questions about was that something to the effect of in
another matter. Whatever reference there was, an inference by
the question to the officer that the search warrant was pursuant
to another matter, you are not to consider that in any way as
evidence of guilt as to this defendant.” (J.A. 604).

19
Further, Hans showed no extraordinary circumstances to merit an

inquiry into whether the jurors would apply the instruction, and

therefore, the curative instruction was appropriate.

The prosecutor’s unfortunate reference to a search warrant

in an unrelated matter was nonspecific, fleeting, and ultimately

harmless. Looking at the record as a whole, the strength of the

Government’s case, the lack of centrality of the issue of

possible other criminal conduct, and the court’s curative

instruction, we affirm the district court’s denial of the motion

for mistrial.

IV. Sufficiency of the Evidence

As his last argument for overturning his conviction, Hans

challenges the sufficiency of the evidence presented at trial.

Hans argues that the trial court erred in denying his motion for

acquittal under a sufficiency of evidence standard. 9 Hans faces

a “heavy burden” in contesting the sufficiency of the evidence

supporting a jury verdict. United States v. Abuelhawa, 523 F.3d

9
Although Hans argues that a female friend of Cromer’s
should also have been a suspect, the relevant inquiry is whether
there was sufficient evidence to convict Hans.

20
415, 421 (4th Cir. 2008) (citation omitted). In resolving

issues of sufficiency of the evidence, this Court does not weigh

evidence or reassess the fact finder’s assessment of witness

credibility. United States v. Sun, 278 F.3d 302, 313 (4th Cir.

2002). Hans’s jury conviction must be sustained if, taking the

view most favorable to the Government, there is substantial

evidence to support the verdict. Glasser v. United States, 315

U.S. 60, 80 (1942). Substantial evidence is evidence that a

rational trier of fact could have found adequate and sufficient

to establish the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). Reversal is reserved for the rare case where the

prosecution’s failure to produce such evidence is clear. United

States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).

To sustain a conviction for arson under 18 U.S.C. § 844(i),

the Government must prove that a defendant “(1) maliciously; (2)

damaged or destroyed a building . . . ; (3) by means of fire . .

. ; and (4) the building . . . was used in interstate or

foreign commerce or in any activity affecting interstate or

foreign commerce.” United States v. Gullett, 75 F.3d 941, 947

(4th Cir. 1996). Hans does not dispute elements three or four,

but instead argues that the evidence was insufficient to

establish elements one and two. However, when the evidence is
21
viewed in the light most favorable to the Government, a

reasonable jury could find that the Government proved these

elements beyond a reasonable doubt. Multiple witnesses

testified to Hans’s jealousy and that he felt threatened by the

likelihood that Cromer and Canty were about to patch up their

relationship and resume life together as a family, the result of

which would be the end of Hans’s friendship with Canty. These

witnesses provided evidence of Hans’s possible motive in

starting the fire: to vent his anger about Cromer and Canty or

to prevent the end of his friendship with Canty. Either of

these motives provides evidence of Hans’s malice.

Further, evidence presented by the Government places Hans

at the scene of the crime at the appropriate time. Government

evidence, both in the form of testimony and video footage,

establishes that Hans was at Platinum Plus Club, a short

distance from the Comfort Inn, before the fire and that he left

the club at 4:01 a.m. and returned at 4:29 a.m. The

Government’s fire reconstruction evidence indicated that the

fire was intentionally started between 4:05 a.m. and 4:10 a.m.

by someone lighting discarded packaging materials found

scattered in and around the Comfort Inn. A security video from

a gas station across the road from the Comfort Inn showed Hans

buying a drink there at 4:22 a.m. From (1) Hans’s motive; (2)
22
his presence in the vicinity of the hotel near the time of the

fire; (3) the readily available means used to start the fire;

and (4) his inculpatory statements to witnesses and his

inconsistent statement to law enforcement, a reasonable jury

could have concluded that Hans had the opportunity and means to

commit the arson.

The Government presented sufficient evidence that the fire

was intentionally set and ample evidence of Hans’s motive,

opportunity, deceit, and remorse. Although most of the

Government’s evidence was circumstantial, circumstantial

evidence, if probative, is enough to convict a defendant. 10 From

this cumulative evidence against Hans, a reasonable jury could

find that the Government established all the elements of the

arson beyond a reasonable doubt. Consequently, Hans’s

sufficiency of the evidence claim fails.

10
See United States v. Martin, 523 F.3d 281, 289 (4th Cir.
2008) (circumstantial evidence permitted a reasonable jury to
conclude that the defendant intentionally set a building ablaze
where there was evidence that (1)the fire was intentionally set
and evidence of (2) the defendant’s financial motive to cause
the fire; (3) the defendant’s opportunity to set the fire; (4)
the defendant’s presence alone in the building mere minutes
before the fire; and (5) the defendant’s lies to investigators).

23
 V. Conclusion

For the reasons stated herein, the judgment of the district

court is

AFFIRMED.

24