Case Information
*1 Before: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
JANE B. STRANCH
, Circuit Judge. In August 2009, a bar in Mansfield, Ohio was set on fire. Four months later, the courthouse in the Mansfield City Hall building was firebombed. Defendant Kevin Dye became a suspect in each fire. Following a search of one of his residences, where a number of incriminating items were found, Dye was arrested and eventually charged in a three-count indictment for violations of 18 U.S.C. §§ 844(i), 924(c)(1)(A), and 924(c)(1)(B)(ii). Dye was found guilty on all three counts and sentenced to an effective term of 60 years. He appeals, raising seven issues. For the following reasons, we AFFIRM Dye’s convictions, his sentence, and the rulings of the district court challenged here.
BACKGROUND
This case arises out of two fires that occurred in Mansfield, Ohio in 2009: the first at Belcher’s House of Rock and the second at the Mansfield City Hall, where courtrooms on the second floor were targeted. Dye was charged with violating 18 U.S.C. § 844(i) for the fire at Belcher’s (Count 1); violating 18 U.S.C. § 844(i) for the fire at the courthouse (Count 2); and violating 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii) based on the devices used to start the fire in the courthouse (Count 3). The salient facts adduced at trial are as follows.
Thomas Belcher, the bar’s owner, testified that Dye was involved in an altercation on August 1, 2009. Belcher asked Dye to leave, called the police, and informed Dye that he was no longer welcome at the bar, to which he replied “I will see this bar closed.” Seven days later, Belcher’s was set on fire. Gasoline and oil had been poured onto the floor to ignite the blazе. Julie Brown, Dye’s girlfriend who lived with him at 827 Delph Avenue in Mansfield, stated that on the night of the fire she had plans to meet a friend at Belcher’s, but Dye instructed her not to go. When Dye returned home around 5:00 a.m., he smelled of gasoline and claimed that he had been working on a car. A car mat left outside the house also emitted a strong odor of gasoline.
Brown testified that Dye “sort of got obsessed with” the fire and asked her to go to Belcher’s each day to find out whether there was a suspect. When she informed Dye that a police officer asked her to get information from him because he was a suspect, he smirked and laughed. Brown claimed that Dye also acted suspiciously upon viewing an article in the newsрaper about the fire. At some point after the fire, Dye asked Brown to retrieve a red gas can and a pair of white Nike shoes from one of his other houses and asked her to hide the gas can. Dye burned the shoes in a bonfire.
On December 14, the Mansfield City Hall building, which contained the mayor’s office, the Mansfield Police Department, courtrooms, and the city attorney’s office, was firebombed. The second floor which housed the courtrooms was targeted, and the fire itself occurred in the office of Judge Payton’s bailiff. Judge Payton was scheduled to hear several cases involving Dye, including one arising out of the Belcher’s altercation.
Four plastic one-gallon jugs were found in the officе, one with a “Tigger” hand towel stuffed into the cap. Investigators determined that the fire was set by igniting a wick on a gasoline-soaked rag and throwing the devices into the building. The jugs exhibited signs of having been on fire, and some had pieces of melted duct tape on them. An explosives expert from the Bureau of Alcohol, Tobacco, and Firearms testified that gasoline was used in the “rudimentary” but “very effective” devices. Samples taken from inside the courthouse tested positively for gasoline.
Brown testified that on December 13, Dye asked her to bring empty milk jugs and gasoline to his house on Delph. When Dye arrived at her niece’s home around 1:00 a.m., Brown stated that he smelled of gas and again claimed to have beеn working on a car. Dye left later that same morning, and Brown suspected that Laurie Butler, with whom Dye was also involved, picked him up. Brown sent Dye several text messages expressing her anger about that relationship.
Brown testified that Dye asked her to drive by his various properties, including the house on Fairlawn, where Butler lived, “to see what was going on.” She was pulled over by the police near the Fairlawn house and told that they were looking for Dye. When Brown informed Dye, he told her “not to say anything.” Later than night, Dye asked Brown to drive him to Bucyrus; she declined, but allowed him to borrow her car.
After Dye became a suspect, the authorities obtained a search warrant for 363 Fairlawn Avenue, where it appearеd both a male and female resided. A key taken from Dye at the time of [1]
his arrest fit one of the locks there. There was a strong odor of gasoline in the home, and the washing machine contained clothing that smelled of gasoline and later tested positive for it. White tennis shoes also tested positive for gasoline. Duct tape, a gas can, an empty one-gallon plastic jug, a cap for a gallon jug with a hole cut out of it, and a Tigger towel were found. The duct tape found on the jugs at the bailiff’s office and the tape found at Dye’s home were made by the same manufacturer and used the same manufacturing process.
A gasoline container was found in a black Nissan Altima belonging to Butler, аnd its floor mats tested positive for gasoline. A number of latex gloves were found in the glove compartment, and no usable fingerprints were lifted from the vehicle. A business card for Claire Shaw Goines, Judge Payton’s bailiff, was also located inside the car, and a sketch of the court, along with a print- out of Judge Payton’s docket, was found in the house. A sledgehammer and shoes taken from the residence contained glass fragments. The glass matched samples taken from the bailiff’s office windows.
At the close of the Government’s case, the defense unsuccessfully moved for dismissal pursuant to Federal Rule of Criminal Procedure 29. The defense then called Scott Stephens as a witness, who testified that Dye arrived at Stеphens’s girlfriend’s home in Bucyrus and stayed there on the evening of the courthouse fire. Because Stephens previously claimed that he had not spoken with Dye after his arrest, during cross-examination the Government played a phone conversation between Dye and Stephens that occurred when Dye was in jail. The conversation indicated that Dye attempted to convince Stephens and his girlfriend to serve as alibi witnesses.
The jury found Dye guilty on all three counts. Although his counsel did not renew the motion for judgment of acquittal at the close of proof, Dye filed a pro se motion, which was denied because he was represented by counsel.
Dye’s presentence report (PSR), which provided for a base offense level of 24 on Counts 1 and 2 (and which grouped these counts), suggested a two-point adjustment for obstruction of justice pursuant to USSG § 3C1.1 and a 12-point adjustment pursuant to USSG § 3A1.4 because Count 2 involved a federal crime of terrorism. The conviction on Count 3 for use of a destructive device during a crime of violence carried a sentence of not less than 30 years, to be served consecutively to any other term of imprisonment. Following a hearing, the district court imposed a sentence of 180 months on Counts 1 and 2 and a sentence of 360 months on Count 3, to be served consecutively, for a total sentence of 720 months. Dye was also required to pay substantial restitution to Belcher’s, the City оf Mansfield, and their respective insurers. This appeal followed.
ANALYSIS
I. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
United States v.
Semrau
,
Thе Government argues that the more stringent “manifest miscarriage of justice” standard should apply because Dye was represented by counsel when he filed his pro se motion for judgment of acquittal. Dye contends that because the district court permitted “hybrid representation,” the issues raised in his post-verdict motion were properly preserved. We find it unnecessary to resolve this dispute. Even if reviewed under the less stringent standard, we conclude that Dye’s challenge to the sufficiency of the evidence cannot succeed.
A. 18 U.S.C. § 844(i) (Counts 1 & 2)
Dye argues that the evidence is insufficient to support his convictions for violating 18 U.S.C.
§ 844(i), which prohibits “maliciously damag[ing] . . . by means of fire or an explosive, any
building” that is used in interstate commerce or in any activity affecting interstate commerce. As
[2]
to Count 1, Dye argues that the evidence is insufficient to support his conviction because there was
no direct testimony or evidence connecting him to the Belcher’s fire. However, “‘[c]ircumstantial
evidence by itself can support a defendant’s conviction.’”
United States v. Bailey
,
Dye’s arguments as to Count 2 are essentially the same: he argues that the Government failed to connect the evidence found at the Fairlawn residence either to him or to the evidence found at the courthouse. The circumstantial evidence supporting this count, however, is even stronger. Butler’s neighbor testified, and evidence at the home indicated, that Dye resided with Butler. Empty milk jugs, a cap with a hole cut in it, and a Tigger towel were found at the Fairlawn residence and in the bailiff’s office. A map of the courthouse and a print-out of Judge Payton’s docket were found during the search. Glass fragments matching the glass in the office’s windows were found in a sledgehammer and shoes retrieved from the Fairlawn residence. The washing machine contained clothes that smelled of gas, Butler’s Altima which Dye used smelled of gas, and there was a gas can in the trunk. Brown also testified that Dye smelled of gas upon returning home during the early morning hours of December 14.
Although Dye argues that the evidence found at the Fairlawn residence could have been
found in any house in Mansfield, we must view the evidence in the light most favorable to the
Government: wе accept the inferences connecting Dye with the Fairlawn residence and the
inferences connecting the items found there with those retrieved from the scene of the courthouse
fire. Succeeding on a challenge to the sufficiency of the evidence at this point “is a very heavy
burden for the convicted defendant to meet.”
Semrau
,
B. 18 U.S.C. § 924
18 U.S.C. § 924(c)(1)(A) provides particular punishments for the use of a firearm “during and in relation to any crime of violence.” 18 U.S.C. § 924(с)(1)(B)(ii) specifies that “[i]f the firearm possessed by a person convicted of a violation of this subsection . . . is a . . .destructive device . . ., the person shall be sentenced to a term of imprisonment of not less than 30 years.” “Destructive device” is defined as any explosive, incendiary bomb, or device similar to any of the devices described in this statutory provision. 18 U.S.C. § 921(a)(4)(A)(i), (vi). Dye argues that there is insufficient evidence to demonstrate that an “incendiary device” was used in the courthouse fire because nothing shows that the milk jugs were capable of explosively spreading gas and they were meltable rather than breakable like a traditional Molotov cocktail which he deems dispositive.
It does not appear that we have addressed the specific type of device at issue. In
United
[4]
States v. Graziano
,
Most of the characteristics of a Molotov cocktail still existed with [the defendant’s] device namely, when one lights an open container of gasoline and throws it, droplets of fuel are expelled in the air during flight and ignited . . . potentially covering a large area and, when the container eventually hits the ground, the droplets of gas disperse further out of the open mouth of the container, again scattering the gas over a large area. In other words, a Molotov cocktail is designed to release gasoline quickly over a large area which vaporizes and burns, which was the same purpose of the device in this case. The use of a plastic rather than glass container does not eliminate this impact; rather, it simply makes it potentially less potent and effective than it otherwise might be.
Id.
(internal citation omitted). As noted in
Graziano
,
see id.
, other circuits have ruled that devices
using plastic containers qualify as destructive devices under the statute.
See, e.g.
,
United States v.
Hedgcorth
,
This authority provides ample support for concluding that the devices used by Dye constituted “destructive devices” for purposes of 18 U.S.C. § 924. Accordingly, we find that the evidence was sufficient to establish the relevant statutory requirements beyond a reasonable doubt. II. Cross-examination of Brown
Dye argues that the district court abused its discretion by prohibiting him from questioning Brown about whether her involvement with children’s services informed her decision to testify against him.
Although the Confrontation Clause of the Sixth Amendment’s “main and essential purpose”
is to provide the defendant with the opportunity for cross-examination,
Delaware v. Van Arsdall
, 475
U.S. 673, 678 (1986) (internal quotation marks omitted), “[t]he district court retains ‘wide latitude
. . . to impose reasonable limits on such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.’”
United States v. Reid
,
On direct examination, Brown testified that she initially thought she and Dye were exclusive, but later found out that he was seeing other women. She also explained that she did not tell police during her first interview that she was with Dye the night of the fire because he instructed her not to say anything and she was afraid. She later contacted the police, however, because she had children to care for and did “not want to get in trouble for any of this.” The jury also heard about Brown’s text messages to Dye expressing her disdain for Butler. On cross-examination, defense counsel asked Brown whether, at the time of her interview with the authorities, she was involved with children’s services. Upon the Government’s objection, defense counsel argued that Brown’s answer would go to bias, and noted that during Laurie Butler’s interview, an officer stated that she should be fearful of the police because “we can have your son taken away from you.” Defense counsel was not allowed to explore this issue because there was nothing indicating that police made a similar threat to Brown during her interview.
We agree with the district court’s decision. There is nothing indicating that the authorities
threatened Brown regarding the custody of her children in order to procure information about Dye,
and she testified that one of the reasons she cooperated with the authorities was because of her
children. More importantly, Brown testified about her relationship with Dye, which revealed that
she was angry because he was less than candid with her about their exclusivity. This matter spoke
to Brown’s bias and adequately allowed the jury “to make a ‘discriminating appraisal’ of [Brown’s]
motives and bias.”
United States v. Lanham
,
Even assuming that the limitation on cross-examination was improper, it would be harmless
error.
See Van Arsdall
,
III. Introduction of Exhibits
Dye argues that certain exhibits from the Fairlawn residence photographs of the house’s
interior; liquid samples; clothing; duct tape; a police scanner; a red gas can; an empty milk jug; a
brown cap with a missing piece and the corresponding piece cut out from it; men’s clothing found
in the bedroom; shoes; and a lock were erroneously admitted because they were not directly
connected to Dye or to the scene of the crime and thus were not relevant. A district court’s decision
regarding thе introduction of exhibits is an evidentiary ruling reviewed for an abuse of discretion.
See Unites States v. Moses
,
“Rule 401 sets a low threshold for relevancy.”
United States v. Worthington
,
Although there was no direct connection between Dye, the items found at the Fairlawn residence, and those from the crime scenes, such a high threshold is not required for relevance. The testimony regarding Dye’s relationship with Butler and her neighbor’s belief that Dye lived with her at the Fairlawn residence made it more likely that the items found there were connected to him. The clothes (which were the size a man of Dye’s height and weight would likely wear) and the lock, which Dye’s key matched, strengthened the inference that Dye resided with Butler. The other items found in the home similar to items found at the scene of the courthouse fire or reasonably relаted to planning the fires strengthened the inference that Dye was connected with the crimes. There is nothing about this evidence that would have caused the jury to find guilt on an improper basis. In addition, defense counsel challenged these inferences through cross-examination. Because the items were relevant to the question of guilt and their admission not unfairly prejudicial to Dye, we conclude that the district court did not abuse its discretion in admitting them.
IV. Double Jeopardy
Prior to trial, Dye argued that Counts 2 and 3 of the superceding indictment were
multiplicitous because the destructive devices in both counts were the same and involved the same
course of conduct. The district court rejected Dye’s arguments after determining that Cоngress
clearly intended separate punishments under 18 U.S.C. §§ 844(i) and 924(c). We review this
decision de novo.
See United States v. Mardis
,
Supreme Court precedent holds that “[w]here . . . a legislature specifically authorizes
cumulative punishment under two statutes, regardless of whether those two statutes proscribe the
‘same’ conduct,” cumulative punishment may be imposed following a single trial.
Missouri v.
Hunter
,
under the circumstances presented here is appropriate. We have specifically observed that the
language of § 924(c) and its legislative history demonstrate that Congress intended cumulative
punishment for violation of that provision and certain other predicate offenses, even if the
convictions stem from the same course of conduct.
See United States v. Holdridge
,
V. Flight Instruction
Although conceding that his trial counsel failed to object to the jury instructions on flight, Dye argues they were plainly erroneous because the evidence showed that he failed to turn himself in, not that he engaged in flight. The Government contends that there was no error, and even if error occurred, the jury was given the choice of considering the evidence of flight and, moreover, the additionаl evidence implicating Dye was overwhelming.
In order to obtain relief under these circumstances, Dye must establish that “(1) an error
occurred; (2) the error was plain, i.e., obvious or clear; (3) the error affected his substantial rights;
and (4) the error seriously affected the fairness, integrity or public reputation of the judicial
proceedings.”
United States v. Lucas
,
Evidence of flight that has probative value is admissible as evidence of guilt, and the jury
may decide how much weight to give it.
United States v. Dillon
,
depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
Id.
at 1127 (quoting
United States v. Myers
,
We conclude that the district court did not err in instructing the jury on flight, as the evidence
fairly supported it. First, Dye consciously sought to avoid his properties and then borrowed Brоwn’s
car in order to leave Mansfield for Bucyrus shortly after the courthouse fire. “A ‘flight’ instruction
is not improper when a defendant leaves the community where the crime was committed within a
reasonably short period of the crime.”
United States v. Rowan
,
Even if we assume error, there was an abundance of evidence connecting Dye to the arsons,
and the instruction cautioned the jury that Dye’s “conduct may indicate that he thought he was guilty
and was trying to avoid punishment. On the other hand, sometimes an innocent person may commit
this same action for some other reason.” Even if a flight instruction was erroneous, it does not affect
a defendant’s substantial rights where there was “overwhelming evidence against him” and the
district court instructs that “evidence of flight is not dispositive of guilt.”
United States v. Atchley
,
VI. USSG § 3A1.4
Dye received an offense level increase of 12 pursuant to USSG § 3A1.4. Such an increase is appropriate “[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.” The application notes instruct that “‘federal crime of terrorism’ has thе meaning given that term in 18 U.S.C. 2332b(g)(5).” USSG § 3A1.4 comment. (n.1). A “federal crime of terrorism” is “an offense that . . . (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct[] and (B) is a violation of . . . [18 U.S.C. §]844(i).” 18 U.S.C. § 2332b(g)(5)(A) (B)(i). Dye contends that the record does not support a finding that the firebombing of the courthouse was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.
The district court found that the following facts established, by a preponderance of the evidence, the applicability of USSG § 3A1.4: [6]
[T]he firebombing location was not random, based upon the evidence [that] the four windows in this particular building that . . . served the judge’s chambers and the bailiff’s office area were broken; the fact . . . [that] case files for that particular court and judge were kept in the office; the sketch that was found; . . . the business card of the bailiff that was found in . . . the defendant’s car or car driven by [him]; [and] the six pending cases, two of which had imminent trial dates.
The court found that it was “reasonable to draw the inference[] that . . . the attack was . . . targeted
and that there was no other reason but to affect the operations of the [c]ourt, or perhaps even . . .
retaliation because of the pending cases.” We review the district court’s application of a sentenсing
guideline de novo and its factual findings for clear error.
United States v. Graham
,
We agree with the district court a natural inference from the above-listed facts is that Dye
sought to disrupt the functions of the court he was to appear before or to retaliate against the
institution for the charges pending against him. Dye argues, however, that there was no testimony
from him indicating his motivation. He contends that his case is distinguishable from
United States
v. Harris
,
VII. USSG § 3C1.1
Dye argues that the district court’s application of the USSG § 3C1.1 enhancement for obstruction of justice is not supported by the record.
USSG § 3C1.1 provides that a defendant’s offense level may be increased by two levels if
“(1) the defendant willfully . . . attempted to obstruct or impede[] the administration of justice with
respect to the . . . prosecution . . . of the instant offense of conviction, and (2) the obstructive conduct
related to . . . the defendant’s offense of conviction.” The guideline specifically mentions
“committing, suborning, or attempting to suborn perjury” as conduct to which it applies. USSG
§ 3C1.1. comment. (n.4(B)). Perjury consists of “false testimony concerning a material matter with
the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.”
United States v. Dunnigan
,
Prior to trial, Dye served a notice of alibi pursuant to Federal Rule of Criminal Procedure 12.1, which listed, among others, Scott Stephens, who subsequently testified at trial on Dye’s behalf. In its sentencing memorandum, the Government contended that Dye suborned perjury by presenting Stephens as a witness. Stephens testified that Dye spent the night at Stephens’s girlfriend’s house in Bucyrus, yet the Government noted that this assertion was flatly contradicted by Brown’s testimony (and the supporting text message) that Dye stayed with her in Mansfield. The Government also pointed out Dye’s phone call to Stephens in which he asked Stephens whether his girlfriend was on board with the alibi. In finding the enhancement applicable, the district court relied primarily on the reasons articulated in the Government’s brief, but added that, in its estimation, Stephens was a particularly incredible witness.
Dye contends that the findings of the district court were inadequate based on its reliance on
the Government’s brief. The Government’s reasoning that Dye sought out Stephens as an alibi
witness, but that contrary testimony at trial implied that Dye arranged for a false alibi adequately
establishes “that enhancement [was] appropriate on the basis of a finding of obstruction of justice
that encompasse[d] all the factual predicates of perjury.”
United States v. Lawrence
,
Dye suggests that because the jury rejected Stephens’s testimony, it was not material, and
therefore the enhancement was inappropriately applied. However, materiality goes to the subject
matter of the testimony, not to the jury’s acceptance of it. And the “impediment to or obstruction
of justice” need not be effectuated, as the еnhancement is applicable upon an attempt to accomplish
these goals.
See Dunnigan
,
CONCLUSION
For the foregoing reasons, we AFFIRM Dye’s convictions, his sentence, and the challenged rulings of the district court.
Notes
[1] One of Butler’s neighbors testified that Butler and her boyfriend, whom he knew as Kevin Dye, lived at the residence, and that he had witnessed Dye driving Butler’s vehicles. The neighbor testified that the day before the police searched Butler’s home, he saw Dye coming and going from her house in all four of their vehicles.
[2] “Maliciously,” which is not defined in the statute, has been interpreted by our sister circuit(s)
to mean that “the defendant acted intentionally or with willful disregard of the likelihood that
damage or injury would result from his or her acts.”
United States v. Gullett
,
[3] Dye also argues, without much analysis, that the evidence fails to establish that the
courthouse was used in interstate commerce. The Government contends that, although lacking merit,
this argument was waived because it was not raised in the Rule 29 motion.
See United States v.
Dandy
,
[4] We have, however, concluded that more traditional Molotov cocktails constitute destructive
devices.
See, e.g.
,
United States v. Cruz
,
[5]
See United States v. Holdridge
,
[6] “[T]he government bears the burden to ‘prove, by a preponderance of the evidence, that a
particular sentencing enhancement applies.’”
United States v. Stubblefield
,
[7] This standard of review (1) looks to whether the district court’s factual determinations were
clearly erroneous; (2) reviews the district court’s conclusion that the facts establish obstruction of
justice a mixed question of law and fact de novo; and (3) reviews application of the enhancement
de novo.
United States v. Gauna
,