United States v. Thompson, Marc E. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1741
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARC E. THOMPSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 944—Suzanne B. Conlon, Judge.
ARGUED OCTOBER 24, 2007—DECIDED APRIL 25, 2008
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. At one time, Marc Thompson
owned a seat on the Chicago Board of Trade and earned
over $1 million a year. He is now in prison after a jury
found him guilty of setting his house on fire in an attempt
to collect on an insurance policy. In an even more disturb-
ing finding, the district court concluded that he deliber-
ately killed his own mother in the fire while trying to make
it appear that she had committed suicide. We find that
sufficient evidence supported the jury’s conclusion that
Thompson set the fire, so we affirm his convictions. We
2 No. 06-1741
also find no error in the district court’s conclusion that
Thompson committed premeditated murder, as the Sixth
Amendment does not require that a jury find that a defen-
dant committed murder before a district court can apply
the Sentencing Guidelines’ murder cross-reference. In
addition, imposing consecutive statutory maximum
sentences for all counts of conviction was not erroneous
because the advisory Guidelines range was life imprison-
ment, and the district court imposed an equivalent sen-
tence of 190 years’ imprisonment. Therefore, Thompson’s
sentence is affirmed as well.
I. BACKGROUND
For a time, Marc Thompson seemed to have it all. He
held an undergraduate degree from Berkeley and had
performed graduate work at Stanford. He became a
successful broker. He at one point made over $1 million a
year. He lived in a home overlooking Lake Michigan with
his wife and three children. After an expensive divorce,
however, his finances began to fall apart. He lost his
biggest client and then his job, and he began to borrow
money from business associates and friends, often in large
amounts. Several loaned him over $100,000.
On September 15, 2000, Thompson filed an insurance
claim for about $50,000, alleging that burglars broke into
his home on Paulina Avenue in Chicago and stole a
computer and other belongings. Chubb Insurance Com-
pany promptly paid the claim. In June of the next year,
Thompson moved his then eighty-nine-year-old mother,
Carmen Thompson, from California to live with him in
Chicago. He arranged for her home to be sold, placed the
proceeds into her bank account, and then spent the major-
No. 06-1741 3
ity of the proceeds. In December of 2001, Thompson raised
his Chubb homeowner’s insurance policy from $275,000 to
$350,000.
The next year, Thompson told his housekeeper that his
mother had said she wanted to burn the house down. Then,
on August 8, 2002, Thompson brought his mother to the
hospital after she sustained a burn injury on her shoulder.
He first told caregivers that she had fallen on the stove
after he had left the room. Later that night, though, he told
hospital employees that she was injured after he left her
alone in the house. The hospital treated and released
Carmen, but not before calling an elder abuse hotline, and
Thompson brought her back to his home.
Three days later, Thompson’s house caught fire. Neigh-
bors saw Thompson and two of his sons leave their home
around 7:00 p.m. that evening. Thompson told investiga-
tors that he left the house around 6:15 p.m., made one stop,
and then went to see a 7:05 p.m. movie with his children at
a theater located at 600 N. Michigan Avenue in Chicago.
Travel time would have been about fifteen minutes from
the house directly to the theater. The parties stipulated at
trial that Thompson’s youngest son remembered arriving
at the movie theater about 8 minutes and 30 seconds into
the movie, making arrival time (after accounting for
previews) into the theater 7:29:30 p.m.
Back near Thompson’s home, neighbors saw smoke
coming from the house at about 7:10 p.m. and called 911.
Firefighters quickly extinguished the fire but found
Thompson’s mother in the basement, dead of smoke
inhalation, about four feet from the fire’s origin. The area
underneath her body was untouched by the fire. Chicago
Police Department detectives subsequently questioned
Thompson, and he told them his mother sometimes acted
4 No. 06-1741
in a psychotic manner, was taking medications, had
previously burned herself, and had talked about commit-
ting suicide in the past. The detectives quickly ended their
investigation, and the Cook County Medical Examiner
declared Carmen’s death a suicide.
At the time, however, the police and Medical Examiner
were unaware of the neighbors’ observations regarding the
night of the fire, Thompson’s financial condition, the fact
that steep stairs led to the basement, and that Carmen had
physical disabilities limiting her mobility. In addition,
analysis showed that at the time of her death, Carmen had
alcohol, Nordiazepam (from the Valium family), and
Risperdal, an anti-psychotic drug, in her system. Valium
had been prescribed to Thompson but not to his mother,
and Thompson had obtained the Risperdal prescription for
his mother from a physician who had not examined her.
Also, a codicil to Carmen’s will dated August 4, 2002—a
week before the fire—stated she did not want an autopsy
performed in the event of her death and also that she
wished to be cremated immediately, noting in bold that
this marked a change from her most recent will.
Fire Marshal Carmelita Wiley-Earls led the Chicago Fire
Department’s investigation into the fire’s cause. She
arrived while firefighters were still extinguishing the blaze
and spent six hours on the scene. She ultimately concluded
that the fire had been caused by the ignition of a flammable
liquid that had been poured or splashed in the basement of
the house.
Thompson called his insurance company the night of the
fire. (He telephoned his sister the following morning to
inform her of their mother’s death.) His claims for content
loss totaled $756,766, but his policy only provided for
“replacement value”—the amount it would take to replace
No. 06-1741 5
the contents and to replace the damaged house. Because
the house was not a total loss and could be repaired, the
insurance company would only pay a reduced amount. As
a result, Thompson chose to sell the property, and the
insurance company ultimately paid $269,000 for damage to
the house. Thompson also claimed that property had been
stolen from his fire-damaged house, and the insurance
company paid over $350,000 for lost and stolen items.
Four days after the fire, Thompson opened a bank
account in Chicago. In November and December of 2002,
he transferred $400,000 from that account to one in the
Netherland Antilles held in the name of Toscana Consult-
ing Services, Ltd., a shell company he had set up in 2000 to
hide money from his ex-wife. He filed for bankruptcy in
May of 2003. At trial, he admitted that he had committed
bankruptcy fraud when he made false statements on his
bankruptcy application and used his offshore account to
conceal assets from creditors.
A jury rendered a verdict of guilty against Thompson on
all nineteen counts with which he had been charged,
including wire fraud, use of fire to commit a felony,
bankruptcy fraud, and money laundering. At sentencing,
the district court applied the first degree murder cross-
reference and sentenced him to the statutory maximum on
all counts. The resulting sentence was 190 years’ imprison-
ment. Thompson now appeals his conviction and sentence.
II. ANALYSIS
A. Sufficient Evidence Supported the Verdict.
Thompson raises only one challenge to his convictions.
He maintains there was insufficient evidence for the jury to
6 No. 06-1741
convict him of wire fraud, use of fire to commit a felony,
and one count of engaging in a monetary transaction using
criminally derived funds. An argument that insufficient
evidence supported a jury verdict is difficult to win. In our
review of such a challenge, we “view all the evidence and
draw all reasonable inferences in the light most favorable
to the prosecution and uphold the verdict if ‘any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’ ” United States v.
Gallardo, 497 F.3d 727, 737 (7th Cir. 2007) (citations omit-
ted).
Thompson’s argument focuses on the testimony of the
government’s fire cause and origin expert, Carmelita
Wiley-Earls from the Chicago Fire Department. Wiley-Earls
concluded that the fire at Thompson’s home was incendi-
ary in origin, fueled by a liquid that had been poured or
splashed in the home’s basement and then ignited with an
unknown open flame. Thompson maintains that Wiley-
Earls’s testimony was so conclusory that it did not provide
enough support for a rational jury to find beyond a reason-
able doubt that the fire was caused by arson.
As an initial matter, the testimony from Wiley-Earls was
but one part of the government’s case of trial, which
included plenty of other evidence from which a rational
jury could find that Thompson caused the fire. See United
States v. Lundy, 809 F.2d 392, 397 (7th Cir. 1987) (finding
sufficient evidence to sustain arson conviction after
considering “evidence as a whole indicating, inter alia,
motive, plan, preparation, opportunity and absence of
accident”). Thompson testified in his own defense and
denied causing the fire, but the jurors certainly had reason
to disbelieve him. For one, his account of the night of the
fire did not match up with that of his neighbors. Neighbors
No. 06-1741 7
testified that they saw Thompson and his children leave
their home around 7:00 p.m., observed smoke coming from
the house around 7:10 p.m., and then called 911. Thomp-
son, on the other hand, said that he left his home around
6:15 p.m. on his way to see a movie with his children. His
testimony at trial also contradicted the account he had
given an investigator a few days after the fire. At trial, he
testified that he stopped at a gas station to get cigarettes on
the way to the movie; Thompson had told the investigator
that his stop was at a Walgreens to pick up a newspaper.
The jurors also heard him admit that he had committed
bankruptcy fraud when he lied on his bankruptcy applica-
tion and when he wired money to an offshore bank account
to conceal assets from creditors. He also admitted to lying
under oath in his divorce proceedings and to the bank-
ruptcy trustee. Rational jurors could easily have believed
that he was not telling the truth in this trial.
At the time of the fire, Thompson was admittedly in
financial trouble. He was no longer earning the six or seven
figure income he once had. Instead, the jurors heard that an
expensive divorce and the loss of his job meant that he was
facing mounting financial difficulties. The jurors also heard
that he had increased his homeowner’s insurance policy
eight months before the fire, and that the same insurance
company had quickly paid his claim when he said his
home had been burglarized two years earlier. Moreover,
his mother’s will contained a recently-added codicil stating
she did not want an autopsy, even though the attorney who
drafted the will said he knew nothing about the codicil.
The jurors could have also believed that the burn on his
mother’s shoulder three days before the fire resulted from
a failed attempt to stage her as the cause of a fire to his
home that night.
8 No. 06-1741
As to Wiley-Earls, she testified at trial without any
objection from the defense. She was a lieutenant in the
Chicago Fire Department at the time of the trial and had
worked in the Department for nearly fifteen years. For over
five of those years, she served as a fire marshal determin-
ing the cause and origin of fires, a role for which she had
received specific in-class and on-the-job training. On
August 11, 2002, she was assigned to investigate the fire at
Thompson’s home.
Wiley-Earls arrived at the residence while firefighters
were still shooting water into the home. She began her
investigation by observing the exterior of the home and
interviewing the incident commander and firefighters.
Inside the home, she found only smoke damage on the
second floor, and the first floor’s fire damage was limited
to a plumbing wall that came from the basement.
The basement itself, however, was a different story.
There, Wiley-Earls found “unusual” low burning at the
point where a wall met the floor. She explained that in the
absence of an accelerant, one would expect a “V” pattern of
fire damage to form from the point of origin. Here, on the
other hand, she found uniform low-burning that was not
normal in a typical fire. Because one wall had the most
concentrated charring and damage, Wiley-Earls deter-
mined that the fire had originated there. Carmen Thomp-
son’s body was found face-down, a few feet away. Two
cans of flammable liquid, each containing a residual
amount of liquid and vapors, were also found nearby,
although Wiley-Earls acknowledged that the cans might
have moved during the efforts to put out the fire.
Wiley-Earls’s investigation included an attempt to locate
a heat source. She eliminated a light switch near the area of
origin because it was “in excellent shape,” the wiring
No. 06-1741 9
inside the wall was “in great shape,” and the breaker
supplying the switch did not show any problems. She also
ruled out the furnace’s pilot light because there was no
damage whatsoever to the furnace. She testified that she
looked for any other possible accidental causes and found
none.
Wiley-Earls ultimately concluded that a flammable liquid
poured or splashed in the area of origin, ignited with an
open flame, caused the fire. She had eliminated all natural
causes. Firefighters and Wiley-Earls had both smelled a
flammable liquid at the scene. And the uniform burning on
the baseboard indicated to her that an ignitable liquid had
been used.
Thompson, however, maintains that Wiley-Earls’s
conclusion of an incendiary fire started by an accelerant
was unsupported. He contends that although a liquid
accelerant poured on a floor can create floor-level burning,
floor-level burning can also have other causes. For exam-
ple, he says, the heat from a fire in an enclosed area can
cause materials to fall to the ground and burn, causing
floor-level damage. See National Fire Protection Associa-
tion, Guide for Fire and Explosion Investigations (2004) at
6.16.5.1-5.2. As a result, Thompson maintains that Wiley-
Earls should have obtained test results from debris samples
before concluding that an accelerant had caused the fire.
He stresses that no test results supported her conclusion
and points out that the National Fire Protection Association
(NFPA)’s Guide for Fire and Explosion Investigations recom-
mends testing to confirm the presence of accelerants. See id.
at 6.16.2.4.3 (“If the presence of an ignitable liquid is
suspected, samples should be collected and laboratory tests
should be used to verify their presence.”).
As it turns out, some testing was done, and the govern-
ment had produced to the defense a report from the
10 No. 06-1741
Chicago Police Department that stated:
EVIDENCE:
10014010 (603). One (1) pint fire debris can.
Recovered by Det. L. Gates #20083. Sent to
Crime Lab. for analysis.
Crime Lab analysis is negative for flammable
liquids.
The government did not introduce the negative test results
at trial. During cross examination of Wiley-Earls, Thomp-
son’s counsel brought out the fact that Wiley-Earls never
received the results of the materials she had submitted for
testing. The procedures in the NFPA’s Guide that Thomp-
son points to for the first time on appeal and the fact that
an analysis for flammable liquids (it is unclear exactly what
was tested) had come back negative were also the potential
subjects of cross examination at trial. They were not raised.
But notably, on this challenge to the sufficiency of the
evidence supporting the jury’s verdict, the lack of confirm-
ing test results was not necessary for the government to
prove that Thompson intentionally caused the fire in this
case. Cf. United States v. Ziperstein, 601 F.2d 281, 291 (7th
Cir. 1979) (principles of Brady v. Maryland, 373 U.S. 83(1963) not implicated by government’s failure to introduce
at trial documents favorable to defendant so long as
documents made available to defendant). Thompson’s
primary defense at trial was that his mother had burned
down the home, and negative test results would not have
supported that theory. Moreover, “arson, like most other
crimes, may be proved by the use of circumstantial
evidence.” United States v. Kamel, 965 F.2d 484, 488 (7th Cir.
1992). And we will reverse a jury’s verdict on a sufficiency
of the evidence challenge “only if no rational trier of fact
No. 06-1741 11
could have found him guilty of the charges beyond a
reasonable doubt.” United States v. DeSilva, 505 F.3d 711,
715 (7th Cir. 2007). In this case, as we detailed, there was
more than sufficient evidence for a rational jury to find that
Marc Thompson caused the fire at his home on August 11,
2002. We will not disturb the jury’s verdict.1
B. The Challenged Guideline Calculations Were Appro-
priate.
Thompson received a sentence of 190 years’ imprison-
ment. The district court imposed this sentence after con-
cluding that Thompson had committed premeditated
murder, making the first degree murder cross-reference,
U.S.S.G. § 2A1.1, applicable. The indictment did not charge
Thompson with the crime of murder, and the jury was not
asked whether Thompson had committed murder. As a
1
We also reject Thompson’s argument that the government’s
failure to introduce the complete insurance policy means
insufficient evidence supports the convictions. At trial, Thomp-
son did not object to the introduction of only part of the policy,
nor did he seek to introduce the full text himself. Thompson
maintains on appeal that he could not have staged his mother’s
suicide because his insurance policy would not pay him if his
mother took her own life. Even if this interpretation of the
policy is true, what matters is Thompson’s belief that he
would be paid, not whether he was correct in that belief. The
evidence suggested that Thompson believed he would be paid.
In a previous claim to the same insurance company based on an
alleged burglary, Thompson received prompt payment with-
out investigation. In addition, Thompson requested a copy of
the policy after the fire, suggesting that he was not familiar
with all its provisions.
12 No. 06-1741
result, Thompson maintains that his sentence violates
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000), and his
Sixth Amendment right to a trial by jury.
On appeal, we can review whether the district court
correctly calculated the advisory range under the United
States Sentencing Guidelines, but after that, we must give
deference to the district court’s choice of sentence. Gall v.
United States, 128 S. Ct. 586, 591 (2007). Here, it is clear that
the district court believed Thompson committed premedi-
tated murder and sought to impose as long a sentence as
possible. We find no legal error in its decision to do so.
Turning to Thompson’s specific arguments, he first
maintains that for the murder cross-reference to apply, a
jury needed to find beyond a reasonable doubt that he
committed murder. In response, the government begins by
contending that the jury’s verdict of guilty necessarily
means that it found that Thompson had deliberately killed
his mother. Indeed, the district court thought so, stating at
sentencing:
Particularly relevant here is the jury’s determina-
tion that [the defendant] engaged in arson in
burning that house and that he engaged in a
scheme to defraud CHUBB Insurance by conceal-
ing the fact that he burned the building and then
staged the whole event to look as if his mother was
committing suicide.
The death of Carmen Thompson was part and
parcel, it was an essential component, of the gov-
ernment’s case, it was the way the government
presented the case to jury, and it was the way the
case was defended.
No. 06-1741 13
And paragraph five of Count One in the indictment had
alleged in part:
It was further part of the scheme that the defendant
intentionally staged the fire at his residence to
appear to be an arson committed by his mother,
Carmen S. Thompson, then 90 years old. As a
direct result of the defendant’s intentional acts, his
mother died of smoke inhalation in the basement of
the Paulina Residence.
As Thompson points out, however, the jury was told that
it needed to find only one of the acts charged in the wire
fraud scheme in Count One to convict on that count, and
not all the charged acts referenced Carmen’s death. The
jury also returned only a general verdict, so it did not
explicitly find that Thompson had committed the premedi-
tated murder of his mother.
In any event, the law did not require the jury to find
beyond a reasonable doubt that Thompson had committed
the premeditated murder of his mother for the murder
cross-reference to apply. In saying so, we are not unmind-
ful that it might seem odd to see that this case has been
prosecuted as a wire fraud case in federal court, not as a
murder case in state court. A state court murder prosecu-
tion would not have raised the Sixth Amendment concerns
Thompson brings here; it is unclear why such a prosecution
was not brought. Our precedent, however, forecloses
Thompson’s challenges to his sentence. First, we have
made clear that even after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), judges may
make findings at sentencing using a preponderance of the
evidence standard. See, e.g., McReynolds v. United States, 397
F.3d 479, 481 (7th Cir. 2005) (“[D]ecisions about sentencing
factors will continue to be made by judges, on the prepon-
14 No. 06-1741
derance of the evidence, an approach that comports with
the sixth amendment so long as the guideline system has
some flexibility in application.”). We also note that in this
case, the district court judge went further, finding that
“whether one applies the standard of proof beyond a
reasonable doubt or using the applicable standard of
evidence the government has established [the defendant’s]
offense behavior includes the premeditated murder of his
mother.”
We have also already rejected the argument that enhanc-
ing a sentence based on an uncharged murder violates
Apprendi. Under Apprendi, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum” must be
presented to a jury and proven beyond a reasonable doubt.
530 U.S. at 490. In United States v. Veysey, 334 F.3d 600 (7th
Cir. 2003), the defendant was convicted of fifteen counts of
mail fraud and one count each of arson, wire fraud, and
using fire to commit mail fraud. In determining the Guide-
lines range, the district court applied the first degree
murder enhancement, even though murder had not been
charged. The total statutory maxima of the counts of
conviction was 110 years. We held that the defendant’s
receipt of that sentence did not violate Apprendi. Veysey, 334
F.3d at 602. Here, the total statutory maxima of the counts
of conviction—the relevant inquiry under Apprendi—was
190 years, the same sentence he received. There was no
Apprendi violation. See also United States v. Santiago, 495
F.3d 820, 822-24 (7th Cir. 2007) (rejecting Sixth Amendment
challenge to district court’s finding at sentencing that the
defendant had committed an uncharged murder, which
resulted in an increased Guidelines range); United States v.
Reuter, 463 F.3d 792, 793 (7th Cir. 2006) (same).
No. 06-1741 15
Next, the district court’s decision to impose consecutive
maximum sentences on each count of conviction was not
erroneous. Thompson maintains that only the wire fraud,
arson, and one money laundering charge can be “stacked”
because they are the only charges applicable to the relevant
conduct of murder. We disagree. The concept of relevant
conduct mattered in the initial assessment of whether the
murder enhancement was proper under the Guidelines. See
U.S.S.G. § 1B1.3. But “relevant conduct” does not prevent
a court from imposing consecutive statutory maximum
sentences for all counts of conviction. Instead, U.S.S.G.
§ 5G1.2(d) states:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one
or more of the counts shall run consecutively, but
only to the extent necessary to produce a combined
sentence equal to the total punishment.
Again, Veysey is instructive. There, the highest statutory
maximum for any individual count was twenty years. We
upheld the district court’s decision to impose consecutive
statutory maximum sentences for a resulting sentence of
110 years’ imprisonment, and we explained:
The federal sentencing guidelines direct the judge,
when there are multiple counts of conviction, to
impose maximum and consecutive sentences to the
extent necessary to make the total punishment
equal in severity to what the guidelines would
require were it not for the statutory maxima.
Because Veysey’s remarkable spree included
murder, as well as attempted murder, multiple
arsons, and multiple frauds, the guideline sen-
tence would have been life. The judge exceeded no
16 No. 06-1741
statutory maximum in producing an equivalent
sentence [of 110 years’ imprisonment].
Veysey, 334 F.3d at 602 (internal citations omitted). In this
case as well, the advisory Guidelines range was life
imprisonment. The district court thought a life sentence
was warranted, and it did not err when it imposed consec-
utive maximum sentences on each count of conviction to
reach an equivalent sentence.
Finally, Thompson maintains that his Fifth Amendment
right to due process was violated because the Guidelines,
although advisory now, were mandatory when the charged
offenses took place. We rejected a similar argument in
United States v. Jamison, 416 F.3d 538, 539-40 (7th Cir. 2005),
and we decline to revisit it here.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Thompson’s
conviction and sentence.
USCA-02-C-0072—4-25-08