United States v. Utter

United States Court of Appeals,

Eleventh Circuit.

No. 95-2346.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Forrest Jimmy UTTER, Jr., a/k/a Biff, Defendant-Appellant, Cross-
Appellee.

Oct. 16, 1996.

Appeals from the United States District Court for the Middle
District of Florida. (No. 94-87-CR-ORL-22), Anne C. Conway,
District Judge.

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

*
Honorable Myron H. Bright, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
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

1
The facts testified to by the fire examiners which
indicated arson included: (1) the fire moved at a very rapid
rate, (2) the fire moved along the ceiling, and arsonists
commonly set fire to the ceiling of a building to ensure a total
loss for insurance claims, (3) electrical failure or gas leaks or
malfunction were ruled out, and (4) a flammable substance was
found in the ceiling insulation.
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 being made to Utter's mother from his ex-wife Susan.

Because the district court admitted all the evidence over

Fed.R.Evid. 404 objections, we begin our discussion with that rule.

Subject to specific exceptions, Rule 404(b) provides that extrinsic

evidence is not admissible to prove defendant's character in order

to show action in conformity therewith.2 In United States v.

Miller, 959 F.2d 1535, 1538 (11th Cir.) (en banc), cert. denied,

506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992), this court

laid out a three-part test for evaluating the admissibility of Rule

404(b) evidence:

2
Rule 404(b) provides in full:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused,
the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it
intends to introduce at trial.
 First, the evidence must be relevant to an issue other than
the defendant's character. Second, as part of the relevance
analysis, there must be sufficient proof so that a jury could
find that the defendant committed the extrinsic act. Third,
the evidence must possess probative value that is not
substantially outweighed by its undue prejudice, and the
evidence must meet the other requirements of [Federal Rule of
Evidence] 403.

Id. (citations omitted). Rule 404(b) extends only to "extrinsic"

evidence. "Bad acts" evidence is not extrinsic under Rule 404(b)

if it is (1) an uncharged offense which arose out of the same

transaction or series of transactions as the charged offense, (2)

necessary to complete the story of the crime, or (3) inextricably

intertwined with the evidence regarding the charged offense.

Veltmann, 6 F.3d at 1498. "Evidentiary rulings challenged on

appeal will not be overturned absent clear abuse of discretion."

Id. at 1491.

(1) Testimony of Susan Bosiger

Susan Bosiger rented a cottage from Utter in 1993-94. At

trial, Bosiger testified that the cottage was supposed to have heat

and air conditioning included in the rent. In February of 1994,

Bosiger's air conditioning was not working so she contacted a

repair service to have it repaired. She then deducted the $90 she

paid for the repairs from her monthly rent check and sent in the

remainder of the rent with the receipt for the repairs. Bosiger

testified that when Utter received the partial payment he was

"upset" and demanded complete payment. Bosiger testified that

Utter stated that if she did not get her things off his property

within thirty days, he would "burn her out." Utter's counsel

objected to the testimony prior to trial and again during the trial

itself.
 Bosiger's testimony surrounding Utter's threat to "burn her

out," was completely irrelevant to any issue at trial: It sought

only to show Utter's alleged propensity to commit arson. Utter's

statement occurred over two years after the fire at Stormy's. The

threats did not relate to any arson to collect insurance, as was

charged concerning the Stormy's fire, but rather only to a threat

to use fire. On appeal, the government argues that the evidence is

relevant because it "demonstrate[s] how the defendant reacts to

financial stress." (Appellee's Brief at 36). This is the type of

character and propensity evidence prohibited by Rule 404(b). The

evidence thus fails the first part of the test for the admission of

Rule 404(b), for the evidence related only to Utter's "bad

character" and was not relevant to an issue at trial. The district

court abused its discretion in allowing the testimony.

(2) The Kentucky Fire

In its pretrial notice of intent to introduce Rule 404(b)

evidence, the government indicated that it would present evidence

that the fire at Utter's Williamsburg, Kentucky, home was the

result of arson. The government indicated that the fire began

under suspicious circumstances. The government also stated that

Utter's girlfriend, Lisa Jernigan, would testify that she saw Utter

give money to an unknown man and that Utter later told her that he

had paid the man to burn his home in Kentucky.

Just prior to trial, the government also argued that evidence

that the fire had occurred should be admissible as "inextricably

intertwined" with one of the overt acts charged in the conspiracy

count. The government argued that Utter failed to disclose on the
Jennings Insurance Agency commercial insurance application that his

residence in Williamsburg, Kentucky, had been destroyed by fire in

1988. The Jennings Insurance Agency application requested

information concerning "all claims or occurrences that may give

rise to claims for the prior 5 years." The government asserted

that Utter did not list the Kentucky fire in his application

because of fear that insurance carriers would deny him coverage and

foil his plan to profit from the arson. The government thus

asserted that it could present proof of the fire as evidence of the

alleged fraudulent representation.

Neither of these contentions provides a basis for introducing

evidence of the Kentucky fire before the jury. First, despite its

assertions in the pretrial notice, the government failed to produce

any evidence at trial which tended to prove that the Kentucky fire

was an arson. In her testimony at trial, Jernigan indicated that

she could not sufficiently recall Utter's statements concerning the

fire. The government presented no other evidence concerning the

cause of the fire. The government thus clearly failed the second

part of the test for admissibility of Rule 404(b) evidence: No

proof was presented that Utter committed the extrinsic act—arson in

the Kentucky fire.

Second, the evidence of the Kentucky fire is so tangential to

any conspiracy that "its probative value is substantially

outweighed by the danger of unfair prejudice." Fed.R.Evid. 403.

The evidence revealed that the fire insurance lapsed on Stormy's

due to Utter's failure to pay the premium. Thereafter, in April of

1991, Utter signed the application which failed to disclose the
prior fire at his Kentucky residence. Although the insurance agent

used the application to obtain premium quotes, Utter never actually

obtained any insurance because he could not afford to pay the

premium. Thus the application containing the alleged

misrepresentations did not result in any insurance on Stormy's. By

declining insurance based upon his April application, Utter cannot

be considered to have furthered any scheme of defrauding the

insurance company. The policy under which Utter eventually filed

a claim was independently obtained in June of 1991 by Conway

Yelvington. Further, the prosecution's alleged reason for

introducing the evidence, fear that the policy would be rejected,

is completely speculative and without evidentiary foundation.

Accordingly, even if evidence of the Kentucky fire is

considered "intrinsic" evidence of the alleged conspiracy, the

district court abused its discretion in failing to exclude the

evidence under Rule 403.3 Although Rule 403 is an "extraordinary

remedy," Veltmann, 6 F.3d at 1500, its major function of "excluding

matter of scant or cumulative probative force, dragged in by the

heels for the sake of its prejudicial effect' ", id. (quoting

United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied,

444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979)), is required

here. See United States v. Guerrero, 650 F.2d 728, 735 (5th Cir.

3
Fed.R.Evid. 403 provides in full:

Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
Unit A July 1981).

The introduction of evidence concerning the Kentucky fire

involved a high risk of prejudice. See United States v. Anderson,

933 F.2d 1261, 1272 (5th Cir.1991); United States v. Neary, 733

F.2d 210, 216-17 (2d Cir.1984). The evidence introduced about the

Kentucky fire included: (1) Utter obtained fire insurance on the

house; (2) the house was destroyed by fire while in foreclosure;

and (3) Utter's girlfriend, Jernigan, saw Utter give money to an

unknown man under suspicious circumstances. There is a real danger

that, based upon this evidence, the jury may in part have based its

conviction on a determination that Utter "uses fire to solve his

problems," even though the government could not establish the

Kentucky fire as an arson.

Given that this was an extremely close case built entirely

upon circumstantial evidence, we cannot conclude that the district

court's error in admitting evidence of the Kentucky fire and

Utter's threat to burn out his tenant constitutes harmless error.

See Veltmann, 6 F.3d at 1501; Guerrero, 650 F.2d at 736.

Accordingly, we must reverse the trial court's rulings and remand

for a new trial.

(3) The Gift Letter

Finally, Utter argues that the district court should not have

admitted a letter related to a mortgage company indicating that a

gift of $82,500 was being made to Pauline Duncan, Utter's mother,

from his ex-wife, Susan Utter. The gift letter was used in

connection with the sale of the home in New Smyrna Beach in which

Utter lived. Although Utter lived in the home, the property was in
Susan Utter's name. In connection with the divorce, Susan Utter

"sold" the property to Duncan. The gift letter indicated that

Susan Utter was giving the money for the sale to Duncan, and Duncan

was not obligated to any repayment. Utter continued to live in the

home.

The government argued that the gift letter was evidence of

Utter's financial problems. It showed that although he continued

to control the residence, he wanted to keep the property in another

person's name. The evidence also supported the government's

contention that although Stormy's was held in Susan Utter's name,

Utter himself completely controlled the business. No evidence was

introduced that the gift letter was illegal.

This extrinsic evidence is not infected with the same problems

as the evidence surrounding Utter's threats to his tenant and the

Kentucky fire. The evidence of the gift letter is relevant to

Utter's financial problems and thus relates in part to a motive to

commit arson and then collect on an insurance policy. See

Anderson, 933 F.2d at 1274. Furthermore, the evidence is not

likely to inflame the jury, waste court time, or confuse the

issues. Accordingly, the district court did not abuse its

discretion in admitting the evidence.

C. Nexus to Interstate Commerce

Utter argues that the arson conviction is unconstitutional in

light of the United States Supreme Court decision in United States

v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Utter does not contend that the federal arson statute itself is

unconstitutional. Instead, he asserts that the evidence in this
case failed to establish the jurisdictional prerequisite of the

federal arson statute. The statute provides:

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 ..., fined ..., or both.

18 U.S.C. § 844(i) (emphasis added). In United States v. Denalli,

73 F.3d 328, 329 (11th Cir.1996), this court reversed a conviction

pursuant to the federal arson statute, holding that the evidence

did not satisfy this jurisdictional prerequisite. Denalli involved

the destruction of a private residence. Id. The parties conceded

that the residence was not used in interstate or foreign commerce.

The government, however, contended that the homeowner's occasional

use of a personal computer in the house affected interstate

commerce because the use concerned his work as an electrical

engineer for a company that engaged in interstate and international

business. Id. at 330-31. This court held that the evidence did

not establish a substantial effect on interstate commerce.

In contrast to the situation in Denalli, this case involves

the destruction of a public restaurant, i.e. one offering to serve

interstate travelers. At trial, the government established that

the restaurant served alcohol and used natural gas, both of which

originated outside of Florida. Under these circumstances the

requisite connection to interstate commerce is apparent. See

Katzenbach v. McClung, 379 U.S. 294, 304, 85 S.Ct. 377, 384, 13

L.Ed.2d 290 (1964) (effect on commerce exists where restaurant

offers to serve interstate travelers or serves food a substantial

portion of which has moved in interstate commerce); United States
v. Shockley, 741 F.2d 1306, 1307 (11th Cir.1984) (per curiam)

(concluding that restaurant retained its interstate character even

when closed for repairs); United States v. DiSanto, 86 F.3d 1238,

1248 (1st Cir.1996) (determining restaurant which received food

supplies and natural gas from outside state was property used in

interstate commerce).

III. CONCLUSION

Based upon the evidentiary errors discussed above, we reverse

Utter's convictions as to all counts and remand for a new trial.

COX, Circuit Judge, concurring in part and dissenting in part:

I concur in the court's opinion except for the holding that

the district court's admission of evidence of the Kentucky fire and

Utter's threat to burn out his tenant mandates a new trial.

The majority's conclusions about evidence of the Kentucky fire

are based upon a misreading of the record. I find no abuse of

discretion in the district court's rulings relative to evidence of

the Kentucky fire. In any event neither this evidence nor the

relatively inconsequential testimony of Utter's former tenant had

a substantial influence on the outcome of this case.

Prior to trial the government filed written notice pursuant to

Fed.R.Crim.P. 12(d)(1) of its intent to offer certain evidence,

alleging that such evidence was extrinsic, but "inextricably

intertwined", and also alleging that the evidence was admissible

under Rule 404(b). Paragraph 4 of the government's pretrial notice

contained a rather detailed proffer relating to evidence concerning

the Kentucky fire. It reads as follows:

4. The government intends to offer evidence that on July 7,
1988, defendant Utter applied for insurance on his
 residence located in Williamsburg, Kentucky, and signed
the name of his wife, Susan Burtner, to the policy. At
the time defendant Utter applied for this insurance
policy numerous liens encumbered the residence, and
defendant Utter was separated from his wife, Susan
Burtner, and a divorce was pending. Shortly after an
insurance policy was issued by Kentucky National
Insurance Company, neighbors observed men removing the
furnace, air conditioning system, and other appliances
from defendant Utter's residence. On August 17, 1988,
defendant Utter's residence in Williamsburg, Kentucky,
was destroyed by fire. An inspection of the residence
showed mattresses piled against the door and gasoline had
been poured inside the dwelling. Employees of Stormy's
Seafood Restaurant will testify that defendant Utter was
out of town at the time of the fire.

A witness will testify that prior to the fire a man
visited defendant Utter at his residence in New Smyrna
Beach, and defendant Utter was observed handing the man
a large sum of money. After the fire occurred, the
witness asked defendant Utter about the man that had
received the money, and defendant Utter stated words to
the effect that he had paid the man to burn his home in
Williamsburg, Kentucky. Defendant Utter later stated to
the witness that the fire had been burned before the man
could complete the job. As a result of the fire, the
Kentucky National Insurance Company paid the policy
limits of approximately $150,000, most of which was used
in satisfying liens and judgments against defendant Utter
which had encumbered the home. After the Stormy's
Seafood Restaurant fire, defendant Utter instructed the
witness not to mention to investigators his comments
concerning paying to have his Williamsburg, Kentucky,
home burned. Also, in depositions taken in connection
with the Stormy's fire, defendant Utter disavows
knowledge of the insurance coverage and payments
regarding the Williamsburg, Kentucky, fire.

(R. 1-61 at 2-3.) Following the filing of this notice, Utter filed

a motion in limine seeking an order prohibiting the government from

introducing any extrinsic acts evidence unless proffered outside

the presence of the jury and "only if such evidence meets the

standards" of Rule 404(b). (R. 1-62.) The court held a "hearing"

on the motion prior to trial, but no evidence relevant to the

matter was received. Counsel simply argued the merits of the

motion in limine. (R. 4-91 through 117.) Following the hearing
the court ruled that the government would be permitted to present

evidence of the 1988 fire and the subsequent insurance claim, (R.

5-2), concluding that some of the evidence proffered was "relevant

to the indictment" and that evidence of the arson in Kentucky would

be admitted under Rule 404(b). (R. 5-6.) Later, when a

stipulation evidencing the fact that Utter applied for insurance on

the Kentucky home was offered, (R. 7-590), Utter's counsel again

voiced an objection based upon Rules 403 and 404; the objection

was implicitly overruled. (R. 7-590.) No further Rule 403 or Rule

404(b) objections to evidence of the Kentucky fire were voiced.

The government sought to prove by the testimony of Jernigan,

Utter's live-in girlfriend, that Utter had paid someone to burn his

Kentucky home. She apparently suffered a lapse of memory. The sum

total of her testimony was that prior to the Kentucky fire, a

strange man came to the house; he was kept outside, and Utter

handed him money; and Utter told her that he was loaning the guy

some money because he was down and out. (R. 7-629.) After the

fire, Jernigan asked Utter if that guy had anything to do with the

fire, and Utter said no. (Id. at 630.) The government attempted,

without success, to have Jernigan testify that Utter had paid this

mystery man to burn his Kentucky home. Failing in that, the

government offered no evidence that the Kentucky fire was of

incendiary origin. At no time did Utter seek to exclude any of

Jernigan's testimony, or any other evidence, on the ground that the

government had failed to establish that the Kentucky house was

willfully burned and that Utter procured the burning.

The majority concludes that the trial court abused its
discretion by admitting Jernigan's testimony because no proof was

presented that Utter committed the extrinsic act. But the court's

ruling complained of was the ruling on Thursday, December 1, 1994,

based upon the government's pretrial proffer. That ruling, in my

view, was well within the trial court's discretion. As the

evidence developed, the government failed to prove either that the

Kentucky house was willfully burned, or that Utter procured the

burning. But at this later time, after the December 1 hearing,

Utter did not ask the trial court to revisit the Rule 404(b) issue.

What the majority does, therefore, is find that the trial court's

ruling on Thursday was an abuse of discretion because of what the

trial court learned on the following Monday, when Jernigan

testified.

The majority also concludes that the probative value of the

Kentucky fire evidence "is substantially outweighed by the danger

of unfair prejudice" and should have been excluded under

Fed.R.Evid. 403. I respectfully disagree. The trial court acted

well within its discretion in concluding that the evidence

proffered was admissible under Rule 404(b) to prove motive and

intent. Both motive and intent were issues in the case. The trial

court also acted well within its discretion in concluding that this

evidence was inextricably intertwined with the charged offense. I

find no abuse of discretion in the trial court's rulings.

Assuming, however, that both the Kentucky fire evidence and

the Bosiger testimony that Utter had threatened to "burn her out"

were erroneously admitted at trial, Utter's conviction should not

be set aside. In order to establish that the introduction of this
evidence requires us to remand for a new trial, Utter must show

that the district court abused its discretion in admitting the

evidence, and that admission of the evidence affected Utter's

substantial rights. Fed.R.Crim.P. 52(a). Stated otherwise,

erroneous admission of this evidence does not warrant reversal "if

the purported error had no substantial influence on the outcome and

sufficient evidence uninfected by error supports the verdict."

United States v. Fortenberry, 971 F.2d 717 (11th Cir.1992)

(citations omitted), cert. denied, 506 U.S. 1068, 113 S.Ct. 1020,

122 L.Ed.2d 166 (1993).

In this case it is not at all clear that the Kentucky fire

evidence influenced the jury's decision to find guilt. The

government argued in closing only that the 1988 Kentucky fire

should have been reported on Utter's insurance application and was

not reported because of Utter's financial difficulties and the

anticipated increase in premiums had the loss been reported. The

government did not argue, in closing, that Utter had willfully

procured the burning of his Kentucky house, apparently realizing

that its proof had fallen short.

In closing argument, the government told the jury that

Bosiger's testimony was offered for the limited purpose of

supporting the credibility of witnesses who had testified about

Utter's threats to destroy Stormy's. As the majority notes, a

number of witnesses testified that Utter had threatened to burn

Stormy's. This testimony was not contradicted. Given all of this

testimony, it is inconceivable that Bosiger's relatively

inconsequential testimony that Utter had threatened to burn her out
at some other time and place substantially influenced the jury's

finding of guilt.

At no point did Utter request a mistrial based on admission of

the Kentucky fire evidence. The defense was seemingly satisfied

with the government's decision to make no further attempt to

establish that Utter willfully procured the burning of his Kentucky

home. Similarly, the defense did not request a mistrial because of

the admission of Bosiger's testimony.

Finally, I disagree with the majority's conclusion that "this

was an extremely close case." The evidence in this case, viewed in

the light most favorable to the government, as we are bound to view

it, is substantial indeed. I would affirm Utter's conviction and

reach the challenges to his sentence presented by the government's

cross appeal.