Argued: August 20, 2014.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. (2:12-cr-00221-1). Thomas E. Johnston, District Judge.
James McCall Cagle, Charleston, West Virginia, for Appellant.
Larry Robert Ellis, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
R. Booth Goodwin, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L. RUSSELL, III, United States District Judge for the District of Maryland, sitting by designation. Chief Judge Traxler wrote the opinion, in which Judge Russell joined. Judge Wynn wrote an opinion dissenting in part.
TRAXLER, Chief Judge:
Appellant Michael L. White was charged with crimes related to the intentional burning of a two-unit duplex that he owned and managed and to his recovery of insurance proceeds from the fire. Following a jury trial, White was convicted of conspiracy to commit arson and mail fraud, see 18 U.S.C. § § 371, 844(i), 1341 (Count 1); aiding and abetting arson, see 18 U.S.C. § § 2(a), 844(i) (Count 2); and accessory after the fact to arson, see 18 U.S.C. § § 3, 844(i) (Count 3). The district court imposed a 78-month term of imprisonment for each count, to run concurrently.
On appeal, White raises two challenges to the sufficiency of the evidence. First, White contends that the government failed to establish the nexus to interstate commerce required to sustain arson-related convictions as charged in Counts 1 and 2. Second, he argues the evidence is insufficient to establish that he assisted an uncharged co-conspirator in evading apprehension and punishment as required for the accessory-after-the-fact conviction charged in Count 3. Finally, White challenges his sentence, arguing that the district court used an inflated base offense level as a result of the court's erroneous determination that the duplex qualified as a " dwelling" under United States Sentencing Guidelines Manual (" U.S.S.G." ) § 2K1.4(a)(1). We reject each of White's arguments and affirm his convictions and sentence.
White was a businessman in Logan County, West Virginia, who owned or held an interest in several local ventures including a helicopter service, an airport management company, and several coal mines. White also owned a two-unit duplex near the town of Van, West Virginia (the " duplex" or " Van duplex" ), which he began renting to tenants in 1998.
In the summer of 2009, White was experiencing financial setbacks and defaulted on his helicopter lease, resulting in the closure of his helicopter business and, eventually, the entry of a judgment against
him personally for $556,000. White was forced to borrow $40,000 from an acquaintance to cover expenses.
Additionally, White was no longer receiving an income stream from his duplex by the summer of 2009. The Van duplex qualified as government-subsidized housing. For a period of time, the Department of Housing and Urban Development (" HUD" ) sent subsidized rent payments directly to White on behalf of the last tenants to occupy the Van duplex before the October 2009 fire. Christy Ketcherside Smith (" Ketcherside" ), who began living in Apartment 1 in the spring of 2008, testified that she lost her HUD subsidy and was no longer paying rent by early 2009. Shannon Dickens, who resided in Apartment 2 for approximately nine years before the fire, also received the benefit of HUD rent subsidies until she found employment and began paying the rent herself. Dickens stopped paying rent in 2008 when her heating and air conditioning unit stopped working and White failed to repair it. Dickens continued to live in the duplex, however, until late September or early October 2009.
White grew increasingly frustrated that his tenants in the Van duplex were not paying rent and that he was not making money on the property. White began expressing this frustration to Kim Kinder, an across-the-street neighbor with whom White was carrying on an affair. Kinder, who also regularly cleaned White's house, gathered from White's many complaints that the property had become " a thorn in his side." J.A. 279.
In June 2009, White purchased a fire-insurance policy to cover the Van duplex " as a two-family tenant-occupied" rental property. J.A. 427. The policy became effective on July 19, 2009, and provided $80,000 coverage for the duplex and $20,000 for its contents. Later that summer, White told Kinder he wanted to talk to her husband " Doug about some kind of proposition as to what he could do with the duplex." J.A. 282. The Kinders met with White who explained that he was not making any money from the duplex and wanted Doug to burn it down as soon as possible. White instructed that no accelerants be used so that the fire would not be " traced back to him," J.A. 283, and that the Kinders not contact him for at least a week after setting the fire. Finally, White offered Doug, an unemployed ex-convict, $4000 to do the job. White paid the Kinders $200 up front as a show of " good faith," J.A. 284, and indicated the balance would be paid upon completion of the job.
During the meeting, White told the Kinders that he had already evicted both tenants and that, as far as he knew, the tenants were gone. This was not entirely true, however. White did not even begin eviction proceedings until September 11, 2009. There was no evidence that White ever obtained service on Ketcherside, the tenant in Apartment 1. In fact, Ketcherside testified that she was never served with any eviction papers. Thus, before the fire, White had not obtained an order of eviction against Ketcherside. Although Ketcherside had not been sleeping in the Van duplex for several months, she had not completely abandoned the premises--she still kept her furniture and her children's clothing and toys in the duplex and periodically went there to retrieve items and check on things. White was able to obtain an eviction order against Dickens, his Apartment 2 tenant, directing that she vacate the premises by October 15, 2009--the day before the fire.
The Kinders made three separate trips to the duplex before setting the fire. On the first two trips, the Kinders decided to wait when they noticed that the lights were on in the duplex and that people were in the building. On October 16, 2009, Kinder and her husband finally found the duplex without occupants, although the lights were on and there were " a lot of clothes on the floor." J.A. 287. Kinder waited in the car while her husband entered the ...