Court: Court of Appeals for the Ninth Circuit; November 1, 1999; Federal Appellate Court
Florence Martha Beardslee appeals her conviction for conspiracy, arson, use of fire to commit a felony, and mail fraud. She argues that the district court improperly barred her from cross-examining government witnesses and incorrectly ruled that the statute of limitations did not apply to one of the charges. Additionally, she contests the denial of her motion to suppress evidence. The court rejects all her claims, affirming the district court's decisions.
The Government cross-appeals Beardslee’s sentence, arguing that the district court erred by not imposing her sentence for using fire consecutively with other sentences, applying the wrong Sentencing Guidelines, and declining to enhance her sentence for creating a risk of harm and obstruction of justice. The court affirms all but the first claim of the cross-appeal, vacating and remanding her sentence for consecutive sentencing under the relevant statute.
The facts indicate that on December 10, 1989, a fire at Beardslee’s warehouse, used for her business, was initially deemed electrical. However, Beardslee reported it as suspected arson, suggesting motives linked to Anheuser-Busch, who had terminated her distributorship agreement. Following the fire, investigators found gasoline as the cause but could not identify responsible parties, and the investigation was closed in 1992. In the meantime, Beardslee collected insurance payouts totaling $350,000, having canceled other coverage shortly before the fire due to fears of arson related to her dispute with Anheuser-Busch.
Fireman’s Fund disbursed $85,150.43 to Beardslee for warehouse damage and $20,250 for lost rent. Beardslee additionally received around $10,000 from Financial Indemnity for business vehicle damage claims. In early 1993, the ATF received information implicating Barry Venable in the warehouse fire. Venable was arrested in March 1993 on unrelated charges and subsequently confessed to authorities that Beardslee hired him to commit arson, with Paul Glover as an accomplice. Recorded phone calls revealed Beardslee admitted to increasing Venable's payment and providing him a car. In an April 1993 call, Venable mentioned Glover's involvement, to which Beardslee expressed regret about involving anyone else.
On April 18, 1994, a federal grand jury indicted Beardslee, Venable, and Glover for conspiracy (Count One) and arson (Count Two), with Beardslee additionally charged with mail fraud (Counts Three through Twenty-One) related to her insurance claims. Following plea agreements from Venable and Glover, a superseding indictment was issued on September 13, 1995, which included an additional charge against Beardslee for using fire in furtherance of mail fraud (Count Three) and reclassified Venable and Glover as co-conspirators. The mail fraud counts were renumbered but otherwise unchanged.
Beardslee's first trial began on September 22, 1995, resulting in a mistrial. A retrial commenced a year later, culminating in a guilty verdict on October 30, 1996, for all counts. On June 4, 1997, Beardslee was sentenced to 87 months in prison: 27 months for Counts One, Two, and Four through Twenty-Two to run concurrently, and 60 months for Count Three to run consecutively to Counts Four through Twenty-Two. During the trials, the Government successfully sought to exclude questions regarding witness Ben Pierce's probation status and polygraph test willingness, which was upheld by the district court.
The district court's decision to limit cross-examination regarding Pierce’s probationary status was not an abuse of discretion and did not violate the confrontation clause. The relevance of Pierce's probation was deemed marginal, especially given the substantial evidence against Beardslee, including testimonies from other witnesses and recorded conversations. Pierce was sufficiently questioned on matters affecting his credibility, such as inconsistencies in his testimony.
Regarding Venable, the court allowed limited questioning about whether he believed he benefitted from his testimony, while excluding evidence of his Colorado traffic violations, which had occurred after his plea agreement. The court determined that the marginal relevance of these violations was outweighed by the potential for jury confusion, and sufficient information was available for the jury to assess Venable's credibility. Consequently, the district court did not err in restricting cross-examination of either witness.
Beardslee filed a motion to dismiss Count Three of the superseding indictment, which charged her with using fire to commit mail fraud in violation of 18 U.S.C. 844(h), arguing it was barred by the five-year statute of limitations under 18 U.S.C. 3282. The district court denied her motion, stating that the limitation period begins only when all elements of the offense are complete. Count Three was deemed timely because violations of section 844(h) require both a fire and a prosecutable felony, in this case, mail fraud. Since multiple mail-fraud violations occurred within five years prior to the indictment's filing on September 13, 1995, the court ruled that the statute of limitations did not bar Count Three.
Additionally, following the warehouse fire on December 10, 1989, Beardslee consented to searches, leading to the seizure of business records under a warrant obtained by the ATF. After the investigation slowed, Beardslee arranged for the return of the documents in 1992. However, during ongoing civil litigation, her attorney provided records to Anheuser-Busch, which were later accessed by the government through subpoena. Beardslee later sought to suppress the evidence seized, but the district court found the warrant insufficiently particular yet denied the suppression motion, citing the government's independent source for the evidence.
The district court's denial of Beardslee's motion to suppress was reviewed de novo, affirming that evidence obtained improperly could still be admissible under the independent source doctrine if it would have been discovered lawfully. The court found that the Government's actions in subpoenaing documents from Anheuser-Busch and recovering abandoned records were not influenced by the original illegal search. The ATF had begun returning the seized documents in 1991 as its investigation concluded, and the investigation only resumed in 1993 after new information emerged. The evidence collection process was deemed lawful, supporting the court's decision to deny the suppression motion.
Regarding sentencing, Beardslee received concurrent 27-month sentences for Counts One, Two, and Four through Twenty-Two, and a 60-month sentence for Count Three, which was meant to run consecutively to Counts Four through Twenty-Two but concurrently to Counts One and Two. This arrangement created ambiguity, as it contradicted the statutory requirement under 18 U.S.C. 844(h) that sentences for violations of that section cannot run concurrently with other sentences. The interpretation of the statute is clear, and existing case law supports that the 60-month sentence must run consecutively to all others. Consequently, the court vacated the concurrent aspect of the Count Three sentence and remanded for correction to ensure it runs consecutively to all other counts.
The district court used the 1989 Sentencing Guidelines to sentence Beardslee for conspiracy, asserting that the conspiracy was complete when the warehouse burned in 1989. The Government contends this was erroneous and that the 1992 Sentencing Guidelines should apply, as the conspiracy continued until April 1, 1993, which is after the guidelines were amended on November 1, 1990. The pre-amendment and post-amendment guidelines differ significantly, particularly concerning offense levels for creating substantial risks of death or serious bodily injury. Under the pre-amendment guidelines, an offense level of 24 applies if the defendant knowingly created such a risk, while an offense level of 20 applies if recklessness is involved. Conversely, under the post-amendment guidelines, a level of 20 applies for creating substantial risk, regardless of recklessness, or if the offense involved destruction of a non-dwelling structure, which applies to the burned warehouse.
The Government argues the post-amendment guidelines are applicable without violating the Ex Post Facto Clause because conspiracy is a continuing offense. If the conspiracy extended after November 1, 1990, the amended guidelines may be used; if it ended before that date, the pre-amendment guidelines must be applied. The critical issue is whether the conspiracy concluded with the fire in December 1989 or continued until 1993, as alleged in the indictment, which states that the conspiracy began in October 1989 and continued until April 1998.
The indictment against Beardslee includes allegations of conspiracy related to arson, specifically detailing subsequent actions such as making false statements to authorities and false insurance claims, and compensating Venable for his involvement. The district court correctly applied the 1989 Sentencing Guidelines, concluding that the conspiracy concluded when the warehouse burned in December 1989. Only the false insurance claims and Venable's compensation occurred after the 1990 amendment, which were only loosely connected to Beardslee's role in the conspiracy. The application of the 1989 guidelines was appropriate to avoid violating the Ex Post Facto Clause.
The government contended that the district court erred by not adjusting Beardslee's sentence upward for knowingly or recklessly creating a risk of death or serious injury under the pre-1990 amendment U.S.S.G. 2K1.4(b). The court reviews such enhancements for clear error, requiring an objective assessment of whether Beardslee's actions created a substantial risk of harm, followed by a subjective determination of whether she acted knowingly or recklessly. The definitions of "knowingly" and "recklessly" were aligned with the Model Penal Code. The district court found no clear error in determining that Beardslee did not act knowingly or recklessly, as it was not practically certain her actions would lead to a significant risk of death or injury, despite her awareness of potential risks.
The arson incident occurred at night in a nonresidential area, where the warehouse was not immediately adjacent to other buildings. This situation differed significantly from prior cases where defendants’ actions were found likely to cause serious harm due to proximity to occupied buildings or public access. As a result, the district court's decision not to impose an upward adjustment under U.S.S.G. 2K1.4(b) was justified.
Regarding obstruction of justice, the Government contended that the district court improperly declined to apply an enhancement under U.S.S.G. 3C1.1. The court's application of the Sentencing Guidelines is subject to an abuse of discretion standard. The guidelines outline specific behaviors that warrant enhancement, such as perjury or providing false information that obstructs investigations. However, a mere denial of guilt or refusal to cooperate does not qualify for such enhancement. Evaluating the defendant Beardslee's statements favorably, the court concluded that her comments did not significantly obstruct the investigation, thus affirming the district court's discretion in declining to enhance her sentence for obstruction.
The district court's decision to not enhance Beardslee’s sentence for obstruction of justice under section 3C1.1 was affirmed. However, the court vacated the sentence for Count Three, requiring it to run consecutively to Counts One and Two, and remanded the case for this adjustment. The court found that the precedent set by *Davis v. Alaska* does not support Beardslee's argument concerning the exclusion of a witness's probationary status, as there was no evidence linking that status to Beardslee's charges or to undue influence from authorities. The case was distinguished from *United States v. Steinberg*, which involved a Brady violation due to the government's failure to disclose exculpatory evidence regarding a witness. Unlike the situations in *Steinberg*, Venable's traffic citations were unrelated to the crimes charged against Beardslee and did not provide exculpatory value. Venable's testimony was corroborated by other evidence, negating the need for the suppressed information to impact the case significantly. Beardslee was charged under 18 U.S.C. § 844(h) for using fire in the commission of mail fraud under 18 U.S.C. § 1341, with the statute of limitations outlined in 18 U.S.C. § 3282 requiring prosecution within five years of the offense. Section 3C1.1 of the U.S. Sentencing Guidelines states that a two-level increase in offense level applies if a defendant willfully obstructs justice during prosecution.
