NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in orаl argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dennis Ray WOODWARD, Defendant-Appellant.
No. 93-3123.
United States Court of Appeals, Tenth Circuit.
Dec. 2, 1993.
Before TACHA, BALDOCK, and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
Defendant Dennis Ray Woodward appeals his conviction and sentence fоr maliciously damaging or destroying by fire a building used in interstate commerce, 18 U.S.C. 844(i). We have jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742.
The evidence at trial established the following facts. Just before midnight on March 29, 1992, a fire was discovered at the Burlingame City Hall ("City Hall"). Aрproximately five hours later the fire was extinguished. Over the next two days, Fire Marshall Dick Blevins investigated the fire scene and determined that the fire was intentionally set with computer paper, toilet paper, and other сombustible paper products which were used as trailers to direct the fire from the basement, up the stairs to the clerk's office, and then into the City Council Chambers.
During the investigation, City Police Chief Roger Etzelmiller interviewed individuals оbserved in the downtown area the morning of the fire. Defendant was one of those interviewed. At that time, Defendant said he and his companion Charlie Cox had gone downtown to see the fire.
A few days later, Defendant confеssed to his former brother-in-law, Michael Jackson, that he was the arsonist. Jackson testified at trial that Defendant confessed to him that on the evening of March 29, 1992, he and Cox kicked in the door of the basement of City Hall, and entered through the library area to look for money. Finding none, Defendant got angry and decided to burn the building down. Defendant described to Jackson how he and Cox ransacked the Council Chambers and the clerk's office and then strung cоmputer paper and toilet paper throughout the main floor. Defendant then lit the paper with a Camel cigarette lighter which he had taken from the desk of city employee Cheryl Holloway. Defendant showed Jackson the lighter that he used.
On April 9, 1992, Defendant confessed his role in the arson to his wife. On April 15, 1992, Defendant's wife gave a tape-recorded interview to Blevins in which she described how her husband and Cox had set the fire at City Hall by using computеr paper to direct the fire from the basement up the stairs to the clerk's office. Defendant's wife also related that Defendant had told her that he took a Camel lighter from an employee's desk, used it to start the fire, and then left with the lighter. She also stated that Defendant had, in her presence, removed the Camel wrapper from the lighter to produce a plain white lighter. Defendant's wife's tape-recorded interview was played at trial.
Jackson agreed to assist the authorities, and on April 21, 1992, using a concealed tape recording device, recorded Defendant admitting to setting fire to City Hall. On the tape, Defendant again related how he аnd Cox had started the fire. Defendant also explained that he and Cox had gained admittance to the basement of the City Hall with one kick of the door, and Defendant had wiped his footprint from the door with a wet rag. Defendаnt was arrested later that day on related charges. On the same day, authorities searched Defendant's car and recovered the Camel lighter, now without the Camel wrapper, that had been taken from Ms. Holloway's desk.
Defendant was arrested by Police Chief Etzelmiller. Etzelmiller testified at trial that he knew the Fire Marshall had an arrest warrant for Defendant on the arson, and he arrested Defendant on a warrant for an unrelated city violation. Etzelmiller testified that he gave Defendant his Miranda warnings while transporting him to the county jail at approximately 1:50 p.m. Etzelmiller made no attempt to question Defendant. At approximately 8:00 p.m. on the same day, agents with the Burеau of Alcohol, Tobacco and Firearms ("ATF") arrived at the jail. Having been advised by Etzelmiller that Defendant had previously been provided Miranda warnings, the agents interviewed Defendant. They informed Defendant that they had received information implicating him in the arson of City Hall. They detailed this information and played portions of the tape recordings they had obtained. The agents then suggested to Defendant what they believed happened аt City Hall on the night of March 29, 1992. This scenario suggested that Defendant was the one who set the fire after breaking into City Hall with another individual during a robbery attempt and upon being disappointed at not finding any money. Defendant indicated that was how it happened.
Defendant was twenty-six years old at the time of his arrest. He had several prior encounters with law enforcement officers, leading to seven arrests and three convictions prior to that time.
Fоllowing a jury trial, Defendant was convicted as charged and sentenced to 124 months imprisonment. On appeal, Defendant claims that the district court erred by (1) failing to suppress the statements Defendant made to the ATF agents, (2) enhancing Defendant's base offense level for committing the arson to conceal another offense, U.S.S.G. 2K1.4(b)(1), and (3) adjusting Defendant's base offense level upward for acting as an organizer, leader, manager, or supervisor in the offense of conviction, U.S.S.G. 3B1.1(c).
Defendant claims that the district court erred by failing to suppress the statements Defendant made to the ATF agents. Defendant claims that Defendant's statements to the ATF agents were not аdmissable because there was no evidence that Defendant understood his rights or voluntarily waived them. Defendant further contends that because nearly six hours transpired between the time he was first advised of his Miranda warnings and befоre the ATF agents interviewed him, he should have been read his Miranda warnings again. In reviewing a denial of a defendant's motion to suppress evidence, we review the district court's findings of fact for clear error and consider thе evidence in the light most favorable to the government. United States v. McAlpine,
Before statements made by a defendant during custodial interrogation can be used at trial, the government has the burden of proving that the defendant was given adequate Miranda warnings, and that he voluntarily, knowingly, and intelligently waived his rights. Miranda v. Arizona,
We conclude that the district court did not err in admitting Defendant's statements to the ATF agents into evidence. Defendant alleges no coercion on the part of the ATF agents, and the district court found none. Absent evidence of coercive police conduct, Defendаnt's waiver of his Fifth Amendment privilege and right to counsel was voluntary. See Colorado v. Spring,
Defendant also claims that the district court erred in enhancing Defendant's sentence for committing the arson to conceal another offense, U.S.S.G. 2K1.4(b)(1). The government bears the burden of proving by a preponderance of the evidence that the enhancement applies. United States v. Kirk,
We сonclude that it was clearly erroneous for the district court to find that Defendant committed the arson to conceal the earlier burglary. The overwhelming weight of evidence supports the conclusion that Defendant set the fire at City Hall out of anger. The only evidence to which the government can point in support of the court's conclusion that Defendant was motivated to set the fire in order to conceal the earlier burglary is that upon entering the building, Defendant wiped his footprint off the door. Although this evidence may, in the absence of any other evidence of motive, support a finding of a general motive to conceal criminal activity, it is not enough to outweigh the abundance of evidence that Defendant set the fire purely and simply because he was angry that he found no money. Though this is a close case, we cannot conclude that the government met its burden of proving by a preponderance of the evidence that an enhancement under 2K1.4(b)(1) was appropriate.
Defendant's final claim is that the district court erred in adjusting his offense level upward for acting аs an organizer, leader, manager, or supervisor in the offense of conviction, U.S.S.G. 3B1.1(c). We review for clear error. Id.
We have upheld a district court's finding that a Defendant qualified as an organizer or supervisor under U.S.S.G. 3B1.1(c) whеn evidence shows that the defendant "exercised any degree of direction or control over a subordinate in the criminal scheme." United States v. Morgan,
Defendant's conviction and sentence adjustment for acting as an organizer, leader, manager, or supervisor is AFFIRMED. Defendant's sentence enhancement for committing the arson to cоnceal another offense is REVERSED, and the case is REMANDED for resentencing consistent with this opinion.
Notes
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3