United States v. Dytaniel McBride , 724 F.3d 754 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3320
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D YTANIEL L. M C B RIDE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:10-cr-10124-JES-JAG-1—James E. Shadid, Chief Judge.
A RGUED M AY 21, 2013—D ECIDED JULY 26, 2013
Before P OSNER, M ANION, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The defendant was convicted in
a bench trial of drug offenses, conspiracy to launder
money (18 U.S.C. § 1956(h)), and arson (18 U.S.C. § 844(i)),
and was sentenced to life for the drug offenses and
20 years (to be served concurrently) for each of the
other two offenses. He challenges the convictions for
conspiracy and arson, but we’ll begin with the sentence,
which both parties question in a confusingly captioned
2 No. 12-3320
“Joint Motion for Remand to Vacate Sentence and
Remand for Resentencing.”
When there are multiple offenses, the judge bases his
calculation of the defendant’s guidelines sentencing
range on the offense that has the highest offense level.
The judge determined that to be the money-laundering
offense, for which he determined the defendant’s offense
level to be 43. Here’s how he got to that number: The
offense level for money laundering (or, as in this case,
conspiracy to launder money) is the offense level for
the crime from which the laundered money was
derived, plus adjustments including the addition of two
levels for the laundering itself. U.S.S.G. §§ 2S1.1(a)(1),
b(2)(B). But the judge mistakenly added four levels for
the laundering instead of two. Had he added two
instead, and avoided a further mistake pointed out
below, he would have correctly determined the defen-
dant’s offense level for conspiring to launder money
to be 42.
To explain, the base offense level for the defendant’s
drug crime was 36, raised to 38 by the addition of
two levels for his having played a leadership role in the
crime (U.S.S.G. § 3B1.1(c)); and (if properly computed) to
40 by the addition of two levels for the laundering con-
viction under 18 U.S.C. § 1956; and to 42 by reason of
the adjustment for multiple counts of conviction that is
required by § 3D1.4—not to 43. (The reason the final
offense level calculated by the judge was 43 rather than
44, which should have been the level produced by his
erroneous addition of four rather than two levels for
No. 12-3320 3
the laundering conviction, was that he made an addi-
tional error in the multiple-count adjustment, this time
in the defendant’s favor, by adding only one level rather
than two levels for the defendant’s multiple counts
of conviction.)
The difference between level 42 and level 43 is signifi-
cant. Level 43 is life, period—a point, not a range. Level 42
is 360 months to life. U.S.S.G., ch. 5, pt. A, Sentencing
Table.
Confusion enters because the parties have packaged
the government’s confession of error as a joint motion
to remand the case for resentencing. The motion was
premature. The defendant’s final offense level would
have been only 38 had it not been for his convictions
for conspiracy to launder money and for arson. It was
those convictions that were responsible for the addi-
tional offense levels (both directly and by requiring
a multiple-counts adjustment) to what would other-
wise have been a level 38—the base offense level for
the drug crime plus the two additional levels for the
defendant’s leadership role in that crime. His appeal
challenges those other two convictions (but not his
drug conviction). It would be nonsensical to remand for
resentencing on the assumption that the defendant’s
offense level should be corrected to 42 when if the de-
fendant prevails in his current appeal the offense level
will be only 38 (or 40, if he knocks out only one of the
additional convictions, that is, either laundering or arson).
So since a remand for resentencing is premature (or at
least was when the joint motion was filed), we’ll ignore
4 No. 12-3320
the motion’s caption and treat the motion as a simple
confession of error by the government.
And now to the merits of the appeal, beginning with
the conviction for conspiracy to launder money. The
defendant owned and operated a clothing store, which
he called Tha Place, in Peoria, Illinois. The store was
the front for his drug dealings. His girlfriend, Deshawn
Boyett, worked intermittently at the store. She knew
that the defendant had been dealing drugs and was
continuing to do so—she even delivered some of the
drugs to his customers. The money-laundering con-
spiracy involved more than $270,000 in cash deposits,
ranging from $25,000 to $50,000, that Boyett made to
Tha Place’s account in a Chicago bank between
February and April of 2009—a period in which she was
doing Tha Place’s bookkeeping and knew that the store
did not generate revenue on that scale. She testified at
the defendant’s trial that she thought the amount of the
deposits “odd” in light of the store’s modest revenues.
But she didn’t acknowledge knowing that the deposits
were actually of drug money; and if she didn’t know
that, the defendant argues, she was not his co-conspirator,
and if this is right then as no other person is alleged
to have conspired with him to launder money the con-
spiracy charge fails.
The defendant is correct that for him to be guilty of
conspiracy requires that at least one other person have
agreed with him to commit an illegal act. Smith v. United
States, 133 S. Ct. 714, 719 (2013). Several of our cases, it is
true, beginning with United States v. Gracia, 272 F.3d 866,
No. 12-3320 5
873 (7th Cir. 2001), say that a conviction for participating
in a conspiracy to launder money requires proof that
the defendant was “knowingly involved with two or more
people for the purpose of money laundering,” implying
that the minimum number of participants in a con-
spiracy is three. See also, e.g., United States v. Arthur, 582
F.3d 713, 718 (7th Cir. 2009). We have found a similar
statement in a case from another circuit: United States v.
Alerre, 430 F.3d 681, 694 (4th Cir. 2005). If the “two or
more” proposition is sound, our defendant is entitled to be
acquitted of conspiracy to launder money. It’s unsound.
Nothing in the conspiracy provision of the money-launder-
ing statute, 18 U.S.C. § 1956(h), or in conspiracy law
generally, requires that a conspiracy have more than
two participants. In both Gracia and Alerre the court
seems simply to have been repeating the charge against
the defendant, which happened to be of a conspiracy
with more than two participants, rather than redefining
conspiracy. Likewise the cases that cite Gracia evince
no intention of changing settled law. In United States v.
Emerson, 128 F.3d 557, 561 (7th Cir. 1997), we correctly
stated that “a conspiracy involves a combination of two
or more people formed for the purpose of carrying
out some criminal act”—and the conspiracy in that case
was a conspiracy to launder money, just as in this case.
The requirement that all conspirators agree to commit
the illegal act that is the conspiracy’s object might
be questioned in this case on the ground that it would
have made no difference to the scope, consequences, or
detectability of the defendant’s drug dealing and money
6 No. 12-3320
laundering had Boyett been innocently unaware that
the money she deposited in the Chicago bank was pro-
ceeds of drug dealing rather than revenue from the sale
of clothing. But to deem every unwitting helper of a
criminal a co-conspirator would turn virtually every
crime into a conspiracy. It would mean that a store-
owner who sold rat poison to a customer with no
inkling of suspicion that the customer intended to use
it to kill a neighbor’s cockatoo was a member of a conspir-
acy, and the customer (if he carried out his wicked
scheme) guilty not merely of destroying another
person’s property but also of conspiracy to destroy
another person’s property.
But the trier of fact (the judge) in this case could and
did find beyond a reasonable doubt that Boyett must have
known that she was laundering proceeds of crime. She
knew the defendant was a drug dealer, knew that most of
the money she was depositing didn’t come from the sale
of clothing, and either knew that the money could have
come only from his drug dealings or suspected as much yet
feared that inquiring of the defendant would confirm her
suspicion—a form of willful blindness that the law equates
to knowledge. Global-Tech Appliances, Inc. v. SEB S.A., 131
S. Ct. 2060, 2068-69 (2011); United States v. Santos, 553 U.S.
507, 521 (2008) (plurality opinion). (You know, but you
want to preserve deniability by avoiding the final proof.)
What made Boyett a co-conspirator of the defendant
was not that she knew he was a money launderer, how-
ever, but that knowing it she assisted him in his money
laundering by depositing drug money in the Chicago bank
representing it to be the proceeds of sales of clothing. And
No. 12-3320 7
she was in fact prosecuted for conspiracy to launder
the money, though separately from our defendant, and
pleaded guilty.
So we come to the arson conviction. The evidence
concerning the alleged arson is remarkably sparse. We
do know from the trial record that the defendant set fire
to Tha Place; that according to him he did so because
he was “tired” of running it; and that to do the burning
he had soaked some towels in gasoline, pressed the
towels against the frame of a window at the front of the
store, lit them, and left. It was 2 a.m. when he set the
fire and apparently no one was in the vicinity (besides
police conducting surveillance, as we’ll see) except the
defendant and a friend who had agreed in exchange
for forgiveness of a debt to help him set the fire but
who got cold feet at the last moment and, though
present, did not help set it. The trial record is a blank
about the size of the store, whether it was free-standing
or attached to another building (or perhaps to buildings
on either side of it), the extent of the damage caused by
the fire, whether the fire department was called, and
if it was called whether it responded and if
so whether the firemen extinguished the fire. There is
some evidence that the store was insured, though no
insurance policy was introduced in evidence and there
is no indication that the defendant set the fire because
he wanted insurance proceeds—or even that he was the
policy’s beneficiary.
The government’s appeal brief filled in none of these
gaps. But at the argument its lawyer told us that the
record contains photographs of the store plus evidence
8 No. 12-3320
that the fire department had been called and had re-
sponded and put out the fire and that there had been
water damage to property in the store. We were
skeptical about these representations because the gov-
ernment’s brief not only had omitted them but had sug-
gested that the use of an accelerant (something
that accelerates a chemical reaction—the gasoline used
in the fire was an accelerant) was arson per se and there-
fore that nothing else had to be considered.
We directed the government to file a supplemental
brief identifying any photographs of the store in the
record and any evidence (and if so whether it was in the
record) that the fire department had been called and
responded. The supplemental brief acknowledges that
the record contains no photographs of the store before,
during, or after the fire. The brief notes that the Justice
Department’s files contain police and fire department
reports from which it appears that the fire department
was called and responded and put out the fire. But
those reports are not in the record. Perhaps having
second thoughts about the spareness of the govern-
ment’s theory (use of an accelerant as arson per se),
the government’s lawyer had at the oral argument em-
broidered her written theory with “evidence” that had
not been presented at the defendant’s trial and
therefore could not be used to support his conviction.
We do not suggest that the appellate lawyer, who was
not the trial lawyer, was aware that she was going
outside the record; but clearly there was a failure of
communication within the U.S. Attorney’s office.
No. 12-3320 9
Neither in its original brief on appeal (or in oral argu-
ment), nor in its supplemental brief, did the government
mention the considerable evidence in the record that
the defendant did not own the building that contained
the clothing store—the building that he set fire to. The
defendant in his brief implies that he owned it, by
arguing, as we’ll see, that setting fire to one’s own
property can’t be arson. The government stated in the
fact section of its brief that the defendant had leased
the building rather than owned it, but did not pursue
the issue in the argument section of the brief. We don’t
know whether this was a tactical decision or an over-
sight; it doesn’t matter which it was.
The federal arson statute punishes, so far as relates to
this case, anyone who “maliciously damages or destroys,
or attempts to damage or destroy, by means of fire…, any
building, vehicle, or other real or personal property
used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce.” 18 U.S.C.
§ 844(i). The defendant unquestionably damaged by
means of fire a building that until the day of the fire
was being used in an activity affecting interstate com-
merce—the sale of clothing some of which had been
shipped to the store from outside Illinois. So the critical
issue is the meaning of “maliciously.” The government’s
brief defines the word to mean intending to cause
damage or willfully disregarding the likelihood that
damage would result from the defendant’s act (setting
a fire, in the case of a charge of arson). That’s indeed a
common definition of the word (or cognates of it, such
as “malice”), see, e.g., United States v. Wiktor, 146 F.3d
10 No. 12-3320
815, 818 (10th Cir. 1998) (per curiam); United States v.
Corona, 108 F.3d 565, 571 (5th Cir. 1997); United States v.
Gullett, 75 F.3d 941, 947-48 (4th Cir. 1996), and makes
perfectly good sense when the damage involves a harm
to a third person, such as libeling or hitting a person.
But it makes no sense applied to every occasion on
which fire causes damage. If you light a fire in your
fireplace, you damage the wood that you burn—destroy
it, often—and you inflict the damage, the destruction,
intentionally. But you are not acting “maliciously.” For
the federal arson statute to make sense, “maliciously”
has to mean deliberately (or in willful disregard of
known or suspected consequences) using fire to do a
harmful act. See, e.g., United States v. Corona, supra, 108
F.3d at 571; United States v. Gullett, supra, 75 F.3d at
948. Burning your wood in your fireplace is not a
harmful act; it’s an innocent act.
An even better example, in view of the government’s
view that use of an accelerant to start a fire that causes
damage is arson per se, is a backyard barbecue grill,
in which charcoal is burned and is damaged or
destroyed by the burning. Lighter fluid—an accelerant—is
commonly used to start the fire in the grill, yet no one
thinks that the use of an accelerant to burn charcoal
is arson per se.
At the oral argument the government’s lawyer
conceded the point by acknowledging, in answer to the
judges’ questions, that if the defendant had had a shed
in his yard containing clothing from his store that he
thought worthless, he could have burned the shed to
No. 12-3320 11
the ground without being guilty of arson, provided he
did it in a way that created no obvious dangers. He
might be able to do that—that is, burn his shed down
without endangering the property or personal safety
of other persons—even with gasoline or some other
accelerant, depending on the size and contents of the
shed, how far it was from any other structure, and whether
there were dead leaves or other inflammable material
in the vicinity that might catch fire. The concession
dooms the government’s arson case. The government did
not ask the judge to infer that the defendant wasn’t the
owner of the building, and the judge made no finding
about its ownership (or its size, location, or the damage
the fire caused)—not that a judge is required in a
bench trial in a criminal case to make specific findings
of fact unless a party requests him to do so, Fed. R.
Crim. P. 23(c); and the judge made none in this case.
We can’t uphold the defendant’s conviction for arson
on the basis of a theory that the government disowns
and that the defendant in consequence had no incentive
to contest.
Going for broke—insisting in effect that it either win
big or lose—the government does not deny that the
building may have been tiny, remote from any other
building, wholly owned by the defendant (or, if not, that
the owner had permitted the defendant to burn it down,
a possibility implausibly proposed in the defendant’s
brief), and uninsured, and that it therefore could be
burned to the ground without harming anyone (not even
an insurance company)—perhaps even without attracting
the attention of the fire department. It appears that the
12 No. 12-3320
fire was reported—though not even the fact of its being
reported is in the record—only because police were
maintaining surveillance of Tha Place because they
rightly suspected the defendant of being a drug dealer.
For completeness we note however our disagreement
with the defendant’s two alternative arguments for ac-
quittal of the arson charge. One is that having
decided to destroy the store and presumably its
contents, he had ceased to engage in interstate com-
merce or in any activity affecting interstate commerce.
The argument would be a winner had the store been
converted to a personal residence before the fire. Jones
v. United States, 529 U.S. 848, 850-51 (2000). But it
hadn’t been; and a store that obtains inventory from out
of state is still being used in an activity that affects inter-
state commerce when it is closed for the night. Martin
v. United States, 333 F.3d 819, 821-22 (7th Cir. 2003);
United States v. Tocco, 135 F.3d 116, 120-21, 124 (2d Cir.
1998).
The defendant’s other alternative argument, the argu-
ment premised on his owning the building—the premise
the government does not challenge—is that burning
one’s own property is not arson. That was indeed the
rule at common law. 3 Wayne R. LaFave, Substantive
Criminal Law § 21.3, p. 239 (2d ed. 2003). The common
law of arson was intended to protect not property as
such, but occupants of property. Id., p. 240; John Poulos,
“The Metamorphosis of the Law of Arson,” 51 Mo. L. Rev.
295, 324 (1986). If you owned a building but it was oc-
cupied by a tenant, you would be guilty of arson if
No. 12-3320 13
you burned it down. 3 LaFave, supra, § 21.3(d), p. 248;
Poulos, supra, at 311. But it is obvious from our quota-
tion of the relevant portion of the federal arson statute
that the statute protects unoccupied property, though
only against “malicious” damage or destruction by fire.
Burning one’s own property, even if unoccupied, can
be malicious when for example it is a form of
insurance fraud or endangers adjacent property or fire
department personnel. United States v. Zendeli, 180 F.3d
879, 881-82 (7th Cir. 1999); United States v. Beyer, 106
F.3d 175, 176, 178 (7th Cir. 1997); United States v. Corona,
supra, 108 F.3d at 567-68, 570-71.
Nevertheless we order the defendant acquitted of the
charge of arson for the reason given earlier—the govern-
ment’s decision to stake its case for arson on the
untenable position that using gasoline to start a fire
that causes damage is arson per se. It should have been
an easy case for the government to win. It is evident
not only that the defendant set the building on fire but
also that it was the site of his clothing store, that the
fire almost engulfed his accomplice, that the two men
quickly scampered off knowing that the fire would
attract the police and firefighters, and that the defendant
may have suspected that the police knew he was a
drug dealer and destroying the store would have elimi-
nated evidence (the records of the store’s meager sales
revenues) of his laundering operation. The real case is
far from our fireplace and outdoor-grill hypotheticals,
but it is the government’s gratuitous arson theory that
made them relevant. Although the judge made the sen-
tence for arson concurrent with the defendant’s other
14 No. 12-3320
sentences, the arson acquittal will reduce the multiple-
counts adjustment. But the judge can in resentencing
take note of the arson as relevant conduct.
To summarize, we remand the case for resentencing
in the light both of our order of acquittal and of the gov-
ernment’s confession of sentencing error, which we
accept, in the calculation of the defendant’s guidelines
sentencing range. In all other respects we affirm the
judgment of the district court.
A FFIRMED IN P ART, R EVERSED IN P ART,
AND R EMANDED WITH INSTRUCTIONS.
7-26-13