IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10386
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES NATHANIEL THOMAS,
also known as Chuck Thomas,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
(4:96-CR-80-E-1)
August 17, 1998
Before GARWOOD, JONES and WIENER, Circuit Judges.*
PER CURIAM:
Charles Nathaniel Thomas (Thomas) appeals his conviction,
following a jury trial, on all counts of a five-count indictment,
and he also appeals his sentence. We affirm.
The charges in question relate to a February 5, 1996, fire,
which Thomas allegedly paid another to set, at Thomas’s beauty
salon, and his subsequent claim on his $75,000 fire insurance
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
policy covering the salon’s contents at that location. Count One
alleged a December 1995 to May 1996 conspiracy by Thomas and
others, in violation of 18 U.S.C. § 371, to commit the offenses of
mail fraud, contrary to 18 U.S.C. § 1341, use of fire to commit the
federal felony of mail fraud, contrary to 18 U.S.C. § 844(h), and
damaging a building by fire contrary to 18 U.S.C. § 844(i). Count
Two alleged that on February 5, 1996, Thomas and others damaged and
destroyed, and attempted to damage and destroy, by fire, a building
and real property used in interstate commerce and in an activity
affecting interstate commerce, namely the beauty salon and other
businesses located in the same building, contrary to section 844(i)
and 18 U.S.C. § 2. Count Three alleged that on February 5, 1996,
Thomas and another knowingly used fire to commit the federal felony
of mail fraud, contrary to sections 844(h) and 2. Count Four
charged that on February 12, 1996, Thomas and another committed
mail fraud, contrary to sections 1341 and 2, by causing certain
documents to be placed in the mail to the insurance company, for
the purpose of executing the scheme and artifice to defraud that
company in reference to the fire loss. Finally, Count Five alleged
that on February 19, 1996, Thomas and another again committed mail
fraud, contrary to sections 1341 and 2, by causing certain other
documents to be mailed to Thomas’s wife by the insurance company’s
adjuster, again for the purpose of executing the scheme and
artifice to defraud the insurance company in reference to the fire
loss. Following the jury’s verdict of guilty on each of the five
counts, Thomas was sentenced to concurrent terms of forty-five
2
months on each of Counts One, Two, Four, and Five, and to a
consecutive term of sixty months on Count Three, for a total of one
hundred five months; concurrent three-year terms of supervised
release were also imposed on each of the five counts.
Discussion
Thomas raises the following four claims on this appeal.
1. Thomas asserts the evidence is insufficient to support his
conspiracy conviction under Count One, principally claiming that
the testimony of the government’s witnesses, Simmon, who stated
that Thomas asked him to get Parker to have the fire set, and
Parker, who likewise testified that Thomas had offered him $10,000
to burn the salon and that he had hired Jenkins to do so, was
contradictory and incredible as a matter of law. We reject this
contention. The credibility of these witnesses was clearly for the
jury. See, e.g., United States v. Osum, 943 F.2d 1394, 1405 (5th
Cir. 1991). Nor did these witnesses materially contradict each
other in respect to Thomas’s role in the offense. The evidence is
well more than minimally sufficient to sustain the verdict.
2. Thomas claims that the evidence is insufficient to support
his conviction on Count Two, the violation of section 844(i) by
burning the salon, because a sufficient nexus to interstate
commerce is not shown to satisfy section 844(i) or, alternatively,
that section 844(i) is invalid as applied here as being beyond
Congress’s power under the Commerce Clause as interpreted in United
3
States v. Lopez, 115 S.Ct. 1624 (1995).1 Section 844(i) as then in
effect provided in relevant part:
“(i) Whoever 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 shall be imprisoned for not more than 20 years
. . . .”
The evidence showed that the purpose of the arson was to burn the
salon so as to collect on the $75,000 insurance policy covering its
contents. The salon was a commercial business, located in premises
leased for that purpose, situated in a commercial strip shopping
center in Fort Worth, Texas, which likewise housed other commercial
businesses, at least some of which were also damaged in the fire.
The salon used and sold to its customers, among other things,
shampoo, styling gel, and other hair styling products, some of
which were manufactured by Matrix Essentials in Ohio and were
shipped from there to the warehouse of a Texas wholesaler, who in
turn sold them to the salon, delivering them to the salon from the
warehouse. Only a few thousand dollars worth of such Matrix
products was proved up. Thomas argues, with considerable force,
that this does not demonstrate a “substantial” effect on interstate
commerce.2
1
In his initial brief, Thomas referred to Count Three, but
Count Two was obviously intended (mail fraud was the jurisdictional
hook in Count Three, charged under section 844(h), not any
relationship of the burned property to interstate commerce), and
this was corrected in his reply brief.
2
We note than an enterprise engaged in interstate commerce
may, at least to some extent, be subject to congressional
protection or regulation even though its activities do not
4
Bound by Russell v. United States, 105 S.Ct. 2455 (1985), we
must ultimately reject Thomas’s attack on his Count Two conviction.
See also United States v. Nguyen, 117 F.2d 796 (5th Cir. 1997).
Were the matter res nova, a powerful argument could be made for the
opposite result here. But Lopez does not purport to overrule
Russell, and, while we will not expand Russell or read it broadly,
United States v. Corona, 108 F.3d 565, 569-70 (5th Cir. 1997), if
Russell is to be significantly narrowed or overruled that must be
done by the Supreme Court, not this Court. Our reasoning here is
parallel to the approach taken in the special concurrence (in which
all panel members joined) in United States v. Rawls, 85 F.3d 240,
243-44 (5th Cir. 1996). See also United States v. Kuban, 94 F.3d
971, 973 n.4 (5th Cir. 1996).3 We reject Thomas’s commerce based
challenge to his conviction on Count Two. This likewise requires
rejection of Thomas’s related challenge to his Count One
conviction, as that is based on the premise that the Count Two
conviction is invalid on commerce grounds, a premise which we have
substantially affect interstate commerce. See United States v.
Robertson, 115 S.Ct. 1732 (1995).
3
We do not accept the general thrust of the government’s
aggregation argument, just as we did not in Corona, where we noted
that in its uncabined form it “would for all practical purposes
grant the federal government a general police power,” contrary to
Lopez. Corona at 570. Corona was a section 844(i) case, so is
controlling here. Similarly, in United States v. Bird, 124 F.2d
667, 676-77 (5th Cir. 1997), we rejected an uncabined “aggregation”
argument, noting that “[u]nless there is something that relevantly
ties the separate incidents and their effects on interstate
commerce together, aside from the desire to justify congressional
regulation, the government’s ‘class of activities’ interpretation
would transform Justice Breyer’s Lopez dissent into the
constitutional rule.” Bird at 677.
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rejected.
3. Thomas complains of the admission of evidence that he had
participated in a 1994 insurance fraud involving a claim for water
damage of equipment at his business. We apply abuse of discretion
review. See United States v. McCarty, 36 F.3d 1349, 1353 (5th Cir.
1994). No abuse of discretion is shown. Contrary to Thomas’
contention, we hold that the evidence of his involvement in this
1994 insurance claim was sufficient to permit a reasonable juror to
conclude that his intent in connection therewith was criminal. We
also reject Thomas’s contention that the probative value of this
evidence, particularly with respect to the issue of intent in the
charged 1996 mail fraud offenses, did not exceed its prejudicial
effect. The district court expressly found that “[t]he probative
value of this evidence . . . certainly outweighs prejudice.”
Further, the district court gave an appropriate limiting
instruction; Thomas never objected to that instruction and he did
not request any other or further instruction in that regard (nor
does he challenge that instruction on appeal). While Thomas
complains that a brief passage in the government’s jury argument
below went beyond the limiting instruction, no objection thereto
was made below, and reversal under the plain error doctrine is not
appropriate here. We hold that no reversible error is demonstrated
with respect to this complained of evidence.
4. Thomas’s final contention is that the district court erred
in making his Count Three (section 844(h)) sentence to imprisonment
consecutive to the concurrent sentences on the other counts.
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Thomas relies on the last clause of section 844(h), stating “nor
shall the term of imprisonment imposed under this subsection run
concurrently with any other term of imprisonment including that
imposed for the felony in which the explosive was used or carried.”
(Emphasis added). He points out that the felony to which the Count
Three charge related——mail fraud——did not involve any “explosive,”
and that none of his conduct involved explosives, but rather only
fire. There are several difficulties with Thomas’s argument. To
begin with, it ignores the statutory words “any other term of
imprisonment including.” Moreover, it is contrary to the holding
in United States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995), where
we held that section 844(h) mandated that the sentence thereunder
be consecutive to the sentence for the predicate felony, which
involved only fire and not any explosive. And, Thomas cites no
authority, and we are aware of none, which construes section 844(h)
as he claims it should be in this connection. Finally, only plain
error review is appropriate. Although Thomas states otherwise in
his brief here, the record reflects that he did not below ever
contend that his Count Three sentence did not have to be
consecutive to his sentences on the other counts, and indeed he
expressly recognized that it had to be. The PSR expressly noted
that under section 844(h) the Count Three imprisonment sentence had
to be consecutive. Thomas made many objections to the PSR, but
these did not include any objection to the Count Three sentence
having to be consecutive. In response to Thomas’s objections, the
PSR was amended by an addendum which conceded the correctness of
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all the objections made. At sentencing, Thomas expressly conceded
that all his objections had been cured and that he had no more
objections. The district court at sentencing expressly noted,
without objection by Thomas, that the Count Three sentence would
have to be consecutive. In argument on the sentence, Thomas’s
counsel expressly argued for a low term of years on Count Three
because it had to be consecutive. He asked on this basis for the
then-minimum sentence of five years, and the district court
obliged, imposing five years on Count Three (the then-maximum was
fifteen years; section 844(h) now provides for a mandatory ten year
sentence).4 In making the Count Three sentence consecutive, the
district court, if it erred at all, certainly did not commit error
which was “plainly” such. It was not, and is not now, plain that
section 844(h) does not mandate that the sentence on Count Three be
consecutive. We reject Thomas’s attack on the Count Three
sentence.
Conclusion
Accordingly, the judgment of the district court is
AFFIRMED.
4
Thomas’s counsel argued:
“. . . the Court has up to 15 years on Count 3
consecutive, and I know this Court knows the impact of a
consecutive sentence on top of other concurrent
sentences, and the length of time that will cause Mr.
Thomas to be incarcerated. And I would ask the Court to
sentence, then, on Count 3 at the lower end of that
sentence, near the five-year mandatory minimum as opposed
to the upper end, because when coupled with the guideline
range, that causes about a 9- to 11-year incarceration.”
8