United States v. Michael White , 771 F.3d 225 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL L. WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:12-cr-00221-1)
Argued: August 20, 2014 Decided: November 17, 2014
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Russell joined. Judge Wynn wrote an
opinion dissenting in part.
ARGUED: James McCall Cagle, Charleston, West Virginia, for
Appellant. Larry Robert Ellis, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF:
R. Booth Goodwin, II, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
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
2
reject each of White’s arguments and affirm his convictions and
sentence.
I.
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
3
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,
4
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. 1
1
Dickens testified that she vacated her unit a few weeks
before the eviction deadline.
5
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 duplex and started a fire using a
small amount of gasoline. The Kinders returned home once the
fire had been set.
The heat and smoke damage to the Van duplex caused by the
fire exceeded the limits of White’s new fire policy. Thus,
White recovered the full $80,000 proceeds on his claim, plus an
additional amount for major appliances. As promised, the
Kinders waited one week before contacting White, who then gave
Doug $1000. White refused to make any further large payments,
claiming that he received very little insurance money because
the Kinders did not cause sufficient damage to the duplex. In
response, the Kinders resorted to “begging and threatening” to
contact the police, which prompted White to make a number of
smaller payments of $100 or less. In all, White paid about
$2000 rather than the $4000 he had promised.
In June 2010, Kinder was contacted by West Virginia State
Police Officer T.C. Bledsoe. After initially denying
6
involvement in the arson, Kinder confessed to her involvement in
the Van duplex arson and agreed to cooperate with the police.
Officer Bledsoe arranged for Kinder to make a recorded telephone
call to White in which they discussed the fire and White’s
payment of money to the Kinders. During the call, Kinder made
statements suggesting White’s involvement in the arson to which
White did not deny. Kinder also asked if White intended to give
her more money, and White indicated that Kinder had been
threatening him.
Officer Bledsoe subsequently interviewed White. During the
interview, White acknowledged his relationship with Kinder, his
frustration over his ownership of the duplex, and the fact that
a fire had occurred. White then told Officer Bledsoe that
Kinder confessed to having started the fire about two months
after the duplex burned. White further stated that before the
fire he had asked Doug Kinder to go to the duplex “and clean it
up and get it prepared to either rent or sell.” J.A. 586.
White testified in his own defense at trial. He denied
knowledge of or involvement in the burning of his duplex. To
the extent that the recorded phone call made it appear that
White was “fully aboard with the idea that [the duplex] would be
burned and burned by [Kinder],” White explained that he was
simply “playing along” at the request of a mutual friend, Mark
Vincent, who told him not to argue with Kinder because she was
7
suicidal. J.A. 508. Vincent testified and confirmed this
claim. White was convicted on all three counts, and the
district court imposed concurrent 78-month terms of imprisonment
on each count. White now appeals.
II.
White first argues that there was insufficient evidence to
establish the interstate commerce element of the crime of arson
under 18 U.S.C. § 844(i). Accordingly, he argues that the
district court was in error when it denied the motion for
judgment of acquittal. We disagree. 2
We review de novo the district court’s denial of a motion
for judgment of acquittal. See United States v. Hamilton, 699
F.3d 356, 361 (4th Cir. 2012). In considering a defendant’s
argument that the evidence was insufficient to support his
2
To the extent that White frames the issue in terms of
federal subject matter jurisdiction, he misunderstands the
jurisdiction of the federal courts. As we have explained, “the
jurisdictional element is merely one element of the criminal
activity proscribed by § 844(i), and whether it is demonstrated
in an individual circumstance does not affect a court’s
constitutional or statutory power to adjudicate a case.” United
States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001) (internal
quotation marks omitted). A claim of an insufficient connection
to interstate commerce is a challenge to one of the elements of
the government’s case and is therefore considered a sufficiency
of the evidence claim. See id.; see also United States v.
Williams, 299 F.3d 250, 253 (3d Cir. 2002) (“A property’s use in
an activity affecting interstate commerce is an essential
element of the crime of arson under 18 U.S.C. § 844(i)” which,
“[l]ike all elements of criminal offenses, the Government must
prove . . . beyond a reasonable doubt.”).
8
convictions, we will uphold a jury’s verdict “if, viewing the
evidence in the light most favorable to the government, there is
substantial evidence to support the conviction.” Id. (internal
quotation marks omitted). “Substantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Green, 599 F.3d 360, 367
(4th Cir. 2010) (internal quotation marks omitted). Thus, “the
jury’s verdict must stand unless we determine that no rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Royal, 731
F.3d 333, 337 (4th Cir. 2013).
Under 18 U.S.C. § 844(i), it is unlawful to “maliciously
damage[ ] or destroy[ ], or attempt[ ] to damage or destroy, by
means of fire or an explosive, any building, vehicle, or other
real or personal property used in interstate or foreign commerce
or in any activity affecting interstate or foreign commerce.”
It is beyond dispute that the rental of real estate is an
“activity that affects commerce” under § 844(i). Russell v.
United States, 471 U.S. 858, 862 (1985) (internal quotation
marks omitted). In Russell, the Supreme Court held that the
arson of a two-unit apartment building that was used as rental
property fell within the purview of 18 U.S.C. § 844(i). In so
holding, the Court noted that, although § 844(i) “only applies
9
to property that is ‘used’ in an ‘activity’ that affects
commerce,” “[t]he rental of real estate is unquestionably such
an activity.” Id. Because the apartments in the building were
rented to tenants at the time of the fire, the Court concluded
that the property was “being used in an activity affecting
commerce.” Id. Accordingly, White does not, and cannot,
challenge the general proposition that the rental of the Van
duplex was an activity affecting commerce under § 844(i). See
United States v. Medeiros, 897 F.2d 13, 16 (1st Cir. 1990)
(“Russell thus holds that rental property is per se property
used in an activity affecting interstate commerce.”)
White’s appeal, however, presents an issue not directly
addressed by Russell—whether a rental house can still be used in
an activity affecting commerce under § 844(i) if the tenants
vacated before the fire was set. This court has previously
answered this question in the affirmative. See United States v.
Parsons, 993 F.2d 38 (4th Cir. 1993). In Parsons, we concluded
that a house used as rental property for two or three years
qualified as real property “used in an activity that affects
interstate commerce” under § 844(i) even though it had been
vacant for two months at the time of the fire. See id. at 40.
Rejecting the idea that “vacancy alone . . . constitute[s] a
‘removal’ from the rental market,” id. at 41, we determined that
there was sufficient evidence to support the conclusion that the
10
house was rental property at the time of the fire because (1)
the house was insured as rental property at the time of the
fire, and (2) having found that the defendant commissioned the
fire, the jury could also have reasonably inferred that the
defendant never intended to take the house off the rental
market. See id.
Applying Parsons to the case before us, we conclude that
there is sufficient evidence in the record to support the
conclusion that, at the time of the fire, the Van duplex was
being “used in interstate . . . commerce or in [an] activity
affecting interstate . . . commerce.” 18 U.S.C. § 844(i).
Significantly, the Van duplex had been used as a rental property
for more than ten years at the time of the fire. The fact that
both tenants were no longer living in the duplex at the moment
the fire was set, of course, does not compel the conclusion that
it had been removed from the rental market. See Parsons, 993
F.2d at 41. It is not even clear that White’s Apartment 1
tenant, Christy Ketcherside, actually vacated the duplex.
Although she was living and sleeping elsewhere, Ketcherside
still kept furniture and children’s clothing and toys there and
periodically checked on her property. Those items were burned
in the fire. And although White apparently filed an eviction
action against Ketcherside, he never served her with process—
thus, there is no indication Ketcherside was obligated to vacate
11
and could not have resumed living in the duplex at the time of
the fire. White did obtain an order evicting Dickens from
Apartment 2 but permitting her to remain there until the day
before the fire—October 15. A reasonable finder of fact could
conclude on this evidence that Ketcherside still had a right to
occupy the premises at the time of the fire and that Dickens
technically had the right to do so up until the day before the
fire. Second, as in Parsons, the Van duplex was insured as a
commercial rental property at the time of the fire, and White
claimed and recovered the limits of the policy after the fire.
This is strong evidence that the duplex functioned as a
commercial property. Indeed, “once the business nature of the
property at issue is established, courts will presume, absent
indicia of an intention to permanently remove the property from
the stream of commerce, that the requisite interstate commerce
nexus exists.” Williams, 299 F.3d at 256 (internal quotation
marks and alterations omitted). The record is devoid of any
indication that White intended to remove the duplex from the
rental market. To the contrary, White told Officer Bledsoe that
prior to the fire he had asked Doug Kinder to clean the duplex
so that White could rent it to tenants again or sell it.
Additionally, in light of the overwhelming evidence that White
commissioned the arson, the jury could reasonably infer that
White had no intention whatsoever to take the duplex off the
12
market but instead wished to collect the insurance proceeds
while it was still considered a rental property under the terms
of the insurance policy. See Parsons, 993 F.2d at 41. 3
White contends that Parsons is no longer good law after
Jones v. United States, 529 U.S. 848 (2000). We disagree. In
Jones, the Supreme Court held that § 844(i) does not apply to a
private, owner-occupied residence that is being used only “for
everyday family living” rather than a commercial purpose. Id.
at 859. The Court rejected the argument that the residence fell
within the scope of § 844(i) because it was being “used” to
secure a mortgage loan from an out-of-state banker, to obtain an
insurance policy issued by an out-of-state carrier, and to
receive natural gas from out-of-state suppliers. See id. at
855-56. The Court explained that the term “used” in § 844(i)
“mean[s] active employment for commercial purposes, and not
merely a passive, passing, or past connection to commerce.” Id.
at 855. Seizing on the Court’s use of the word “past,” White
argues that Jones requires the government to prove that the
property is being rented by a tenant at the very moment the fire
is set, i.e., that it is presently being used in commerce.
According to White, the moment Dickens vacated the Van duplex,
3
It would be a perverse result indeed if White could
“remove” the duplex from the market by planning and directing
the arson of the duplex, thereby defeating the interstate nexus
requirement.
13
the landlord-tenant relationship ceased to exist. There being
no evidence that he sought to continue renting the premises to
new tenants at the time of the fire, White argues the only
possible conclusion from the evidence is that the Van duplex was
no longer being “used in” an activity affecting interstate
commerce under § 844(i) when the Kinders burned it.
Jones is not inconsistent with Parsons. The Court’s
primary focus in Jones was the nature of the use or function of
the building for purposes of § 844(i). In Jones, the Supreme
Court emphasized the “qualifying words ‘used in,’” which mandate
that “the damaged or destroyed property must itself have been
used in commerce or in an activity affecting commerce.” Id. at
854. Jones gives us a two-part outline for assessing the
applicability of 18 U.S.C. § 844(i), which requires an analysis
of the “function of the building itself, and then a
determination of whether that function affects interstate
commerce.” Id. at 854 (emphasis added). Adhering to this
framework, the Court concluded that the burning of an private
family residence not being actively used for commercial purposes
fell outside of the scope of § 844(i).
Parsons is not inconsistent with the two-part Jones
analysis. As we have explained, the evidence is sufficient to
permit the conclusion that the Van duplex was functioning as a
two-unit rental apartment at the time of the fire. There is
14
simply no evidence suggesting that the function of the duplex
changed before the fire. Thus, viewing the evidence in the
light most favorable to the government, we conclude there is
substantial evidence in the record to support the verdict. 4
III.
White next challenges the district court’s denial of his
Rule 29 motion for judgment of acquittal challenging the
sufficiency of the evidence to support a conviction for
accessory after the fact to arson charged in Count 3. In order
to prove accessory after the fact under 18 U.S.C. § 3, the
government must demonstrate “(1) the commission of an underlying
offense against the United States; (2) the defendant’s knowledge
of that offense; and (3) assistance by the defendant in order to
prevent the apprehension, trial, or punishment of the offender.”
United States v. De La Rosa, 171 F.3d 215, 221 (5th Cir. 1999).
The government charged that White violated 18 U.S.C. § 3 when he
knowingly made a false and misleading statement to an insurance
4
We note White makes a related argument—which he does not
raise separately but includes as part of his challenge to the
government’s proof of the interstate commerce element—that the
district court’s jury instructions contravene Jones. For the
same reasons we reject White’s sufficiency of the evidence
argument based on Jones, we find no reversible error in the
district court’s instructions which, “taken as a whole,
adequately state the controlling law.” United States v. Ryan-
Webster, 353 F.3d 353, 364 n.17 (4th Cir. 2003) (internal
quotation marks omitted). Moreover, in light of the
overwhelming evidence against White, any error in the district
court’s instructions would have been harmless.
15
representative for the purpose of helping Kinder—and ultimately
himself—avoid apprehension.
At trial, the government presented the testimony of two
Nationwide Insurance representatives who interviewed White.
First, Charles Adkins, who was assigned by Nationwide to assess
White’s insurance claim based on the Van duplex fire, testified
that in an October 2009 interview a few days after the fire,
White suggested that one of the tenants may have started the
fire in response to White’s efforts to evict them. Adkins
indicated that he notified Nationwide’s Special Investigation
Unit (“SIU”) about White’s statement that tenants may have
intentionally started the fire and that the SIU’s function was
to follow up with law enforcement officials. White’s false
statement to Adkins was charged in Count 1 as an overt act in
furtherance of the arson conspiracy. Second, Stephen Thompson,
a Nationwide Insurance Special Claims Representative, testified
that he conducted a recorded interview of White in February
2010, about four months after the fire. White essentially
repeated to Thompson the statement he previously made to Adkins
speculating that a tenant may have set the fire, and White
omitted any mention of the Kinders. 5 Like Adkins, Thompson
5
Thompson was sent to interview White about a separate
claim made by White under a Nationwide fire insurance policy for
another fire—one that damaged White’s personal residence on
(Continued)
16
testified that had White told him of the Kinders’ involvement,
he would have notified the SIU for follow up with law
enforcement. White’s statement to Thompson was charged in Count
3—the accessory-after-the-fact charge.
White renews the argument that he made throughout trial
that this evidence was insufficient to prove that he acted with
the intent to assist Kinder in avoiding apprehension. White
contends that his statement to Thompson was nothing more than a
“passing comment” to an insurance representative who was not
connected to law enforcement and had not indicated to White any
such connection existed. Thus, White concludes that there is
nothing in evidence showing that he was aware any statement he
made incriminating Kinder would be passed along to the police.
The district court rejected White’s argument, pointing out that
in light of the evidence that Kinder committed arson at White’s
behest for the Nationwide insurance money, the jury could easily
infer that White was aware that preventing Kinder’s apprehension
was in his personal best interest and that his interview
statement in fact did aid Kinder because Thompson would have
February 14, 2010. During the interview, Thompson inquired
about White’s previous fire-loss claims and the subject of the
Van duplex fire arose. White successfully moved in limine to
exclude any evidence of this February 2010 fire. Thus, the jury
was unaware of the purpose of Thompson’s interview and heard a
redacted recording of the interview.
17
reported the matter to the Nationwide SIU. We agree with the
district court.
The dispute concerns only the third element of an
accessory-after-the-fact charge—whether the government offered
proof that White assisted Kinder for the purpose of
“prevent[ing] [her] apprehension, trial, or punishment.” De La
Rosa, 171 F.3d at 221. White does not dispute that there was
substantial evidence that Kinder participated in the commission
of the Van duplex arson and that White was aware of this offense
because he had commissioned the Kinders to commit it. White
argues there is no evidence of the requisite intent to assist,
however, because he made his statement to an insurance agent,
not a law enforcement agent. We disagree. Here, all the
evidence must show is that he acted “in order to prevent the
apprehension” of Kinder. Id. Based on the evidence, the jury
could make a couple of obvious common-sense inferences. First,
the jury could infer that White was well aware that helping
Kinder avoid detection and arrest was in his personal best
interest—as subsequently demonstrated by Kinder’s trial
testimony incriminating White. Second, in light of the evidence
that both law enforcement and the insurance company were
interested in the origin of the fire and that common sense would
tell a person that an insurance adjuster who found that a fire
claim was really arson would turn that information over to law
18
enforcement, it is a reasonable inference that White understood
it was to his benefit in avoiding apprehension to cast suspicion
on the tenants. Indeed, in view of these facts, the only
logical purpose for White to attempt misdirection in his
interview with Thompson was to ensure against even the very
possibility that Kinder and then White himself would fall under
police scrutiny.
Viewing the evidence in the light most favorable to the
government, we are satisfied that “any rational trier of fact
could find the essential elements of the crime beyond a
reasonable doubt.” United States v. Cone, 714 F.3d 197, 212
(4th Cir. 2013). We conclude that White has not carried the
“heavy burden” that accompanies a sufficiency of the evidence
challenge, United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007), and we therefore affirm the district court’s denial of
the motion for a judgment of acquittal on Count 3. 6
6
After oral argument, the panel directed the parties to
submit supplemental briefs on whether it is permissible for
White to be convicted and sentenced for accessory after the fact
to an arson offense that he himself committed as a principal.
See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003)
(finding evidence sufficient to show violation of the “plain
language” of 18 U.S.C. § 3, but concluding that § 3 was
inapplicable given that defendant “was found guilty as a
principal to the crime”); see also State v. Jewell, 409 S.E.2d
757, 764 (N.C. App. 1991) (Wynn, J., dissenting) (“It stands to
reason that . . . a principal felon cannot be an accessory after
the fact to himself. . . .”). But see United States v.
Triplett, 922 F.2d 1174, 1180 (5th Cir. 1991). Although White
(Continued)
19
IV.
White’s final contention is that the district court
incorrectly concluded that the Van duplex, for sentencing
purposes, was a “dwelling” under U.S.S.G. § 2K1.4, the relevant
sentencing provision for arson-related offenses. Under § 2K1.4,
if the Van duplex is classified as a “dwelling,” the base
offense level is 24, see U.S.S.G. § 2K1.4(a)(1)(B), but if the
duplex is categorized as “a structure other than . . . a
dwelling,” the base level offense is 20, see U.S.S.G. §
2K1.4(a)(2)(B). White argues that the Van duplex was no longer
a “dwelling” at the time of the fire because it was vacant.
This alleged error, White contends, resulted in an advisory
sentencing range of 51 to 63 months rather than the 33-to-41-
months range that would have applied if the district court had
not determined that the Van duplex was a “dwelling” under the
guideline.
In considering a sentencing court’s application of the
guidelines, we review “legal conclusions de novo and . . .
factual findings for clear error.” United States v. Layton, 564
was guilty of aiding and abetting, an aider and abettor is
considered a principal. See Tarkington v. United States, 194
F.2d 63, 68 (4th Cir. 1952). Having had the benefit of the
parties’ input on this issue, which was raised neither in
district court nor on appeal, we are satisfied that reversal is
not warranted under the plain error standard of review. We take
no position on whether any error occurred in the first place.
20
F.3d 330, 334 (4th Cir. 2009). The term “dwelling” is not
defined in U.S.S.G. § 2K1.4 or the accompanying commentary. We
accord undefined guideline terms their “ordinary, contemporary
meaning.” United States v. Chacon, 533 F.3d 250, 257 (4th Cir.
2008). In ordinary terms, a “dwelling” is a “house or other
structure in which a person or persons live,” including “the
apartment or building . . . occupied by a family as a place of
residence.” Black’s Law Dictionary 505 (6th ed. 1990); see
United States v. Smith, 354 F.3d 390, 397-98 (5th Cir. 2003)
(employing the Black’s Law Dictionary definition of “dwelling”
for purposes of U.S.S.G. § 2K1.4); see also United States v.
Ramirez, 708 F.3d 295, 302-03 (1st Cir. 2013) (using Black’s to
define “dwelling” for purposes of U.S.S.G. § 4B1.2); United
States v. McClenton, 53 F.3d 584, 587 (3d Cir. 1995) (same).
The Van duplex clearly fell within the scope of the foregoing
definition and functioned as a “dwelling” for more than 10 years
before it burned down. White does not suggest otherwise.
Instead, he argues that the duplex lost its character as a
dwelling once the tenants vacated the premises. See United
States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994). He likens
his circumstances to those presented in Jackson, wherein the
Fifth Circuit determined that the defendant did not burglarize a
“dwelling” for purposes of U.S.S.G. § 4B1.2(1) by breaking into
a vacant house. Jackson rejected “the government’s argument
21
that the nature of the dwelling did not change by virtue of the
seven year vacancy” and noted that “whether by vacancy, physical
deterioration, altered use, or otherwise, a point in time exists
at which a dwelling loses its character as a residence and
becomes a ‘mere’ building.” Id. (emphasis added).
Nothing of the kind occurred here, however, as the Van
duplex was vacant at most for a couple of weeks before the fire
was set. There was absolutely no indication that the duplex had
ever functioned or would ever function as anything other than a
dwelling. As the Fifth Circuit observed in concluding that a
three-month seasonal vacancy period did not remove a motel from
“dwelling” status under § 2K1.4,
[t]here is . . . a marked difference between the
seven-year abandonment of the building in Jackson and
the three-month seasonal vacancy of the motel.
Whatever the “point in time” at which a building’s
core nature is altered, it was not reached in just
three months, particularly in light of the fact that
the motel would again be occupied by visitors in the
near future.
Smith, 354 F.3d at 398. We are likewise confident the brief
period during which the Van duplex was completely empty of
tenants did not cause it to lose its essential character as a
dwelling, especially since, as previously mentioned, one of the
tenants was under no order of eviction and continued to maintain
personal property in her unit at the time of the fire. The
duplex, which still had power and was in a habitable condition,
22
clearly had not been abandoned to the point that it could no
longer be considered a “dwelling.” See United States v. Ingles,
445 F.3d 830, 840 (5th Cir. 2006) (concluding that “a camp
house” that had been vacant for several months at the time of
the fire was still a “dwelling” under § 2K1.4 “in light of the
fact that at the time of the fire the structure was furnished as
a functioning residence”). We reject White’s argument and
conclude that the district court did not clearly err in
concluding the Van duplex was a “dwelling” within the meaning of
U.S.S.G. § 2K1.4. 7
V.
For the foregoing reasons, we affirm White’s convictions
and sentence in full.
AFFIRMED
7
White’s Sixth Amendment challenge to the district court’s
application of a two-level obstruction of justice enhancement
under U.S.S.G. § 3C1.1 is clearly foreclosed by circuit
precedent. See, e.g., United States v. Blauvelt, 638 F.3d 281,
293 (4th Cir. 2011); United States v. Grubbs, 585 F.3d 793, 799
(4th Cir. 2009); United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008). Accordingly, we reject this claim.
23
WYNN, Circuit Judge, dissenting in part:
A person should not be held criminally liable both as a
principal and as an accessory after the fact to himself. Here,
Defendant was convicted of aiding and abetting arson, which the
law does not distinguish from principal liability for the arson.
Because I would hold that Defendant cannot also be convicted of
being an accessory after the fact for the same arson, I
respectfully dissent.
I.
“[P]rovisions of the Federal Criminal Code” make plain that
not only “‘whoever commits an offense’” but also whoever “‘aids,
abets, counsels, commands, induces, or procures its commission,
is a principal.’” Tarkington v. United States, 194 F.2d 63, 68
(4th Cir. 1952) (quoting 18 U.S.C. § 2). In other words, “[t]he
distinction between principals and accessories before the fact
has been abolished.” Id.In this case, a jury convicted Defendant of aiding and
abetting arson. Defendant is, therefore, criminally liable as a
principal for the arson, i.e., as someone who “commit[ted] [the]
offense.” Id. (internal quotation marks and citation omitted)
Defendant was also charged with and convicted of being an
accessory after the fact. Specifically, per 18 U.S.C. § 3,
“[w]hoever, knowing that an offense against the United States
has been committed, receives, relieves, comforts or assists the
offender in order to hinder or prevent his apprehension, trial
or punishment, is an accessory after the fact.”
In this case, Defendant misrepresented to an insurance
agent that one of his tenants may have committed the arson in an
attempt “to ensure against even the very possibility that Kinder
and then White himself would fall under police scrutiny.” Ante
at 19.
In my view, the law does not allow Defendant to be
responsible as a principal for the arson and for assisting
himself after the fact. As the Ninth Circuit has explained, a
defendant “should not be punished as an accessory after the
fact, even though he assisted in preventing his own apprehension
and the apprehension of his co-offender.” United States v.
Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003). This is because
“[u]nder 18 U.S.C. § 3, the offense of accessory after the fact
only occurs when a person assists an offender; the person
committing accessory after the fact is not the ‘offender’
himself. To interpret § 3 otherwise would lead to the absurd
result of subjecting every principal to an accessory after the
fact charge.” Id.; see also State v. Jewell, 409 S.E.2d 757,
764 (N.C. App. 1991) (Wynn, J., dissenting in part) (“A
participant in a felony may no more be an accessory after the
fact than one who commits larceny may be guilty of receiving the
25
goods which he himself had stolen. . . . It follows that since
an aider and abettor to a felony is treated the same as the
principal that committed the felony offense, he too cannot be an
accessory after the fact to that same offense.” (internal
quotation marks and citation omitted)).
Such reasoning is supported by the fact that 18 U.S.C. § 3is “based upon” Skelly v. United States, 76 F.2d 483 (10th Cir.
1935). 2 Fed. Jury Prac. & Instr. § 22:02 (6th ed. 2014); see
also 18 U.S.C. § 3 (West ann.) Revision Notes & Leg. Reports
(same). In Skelly, the Tenth Circuit defined an accessory as
“he who is not the chief in the offense, nor present at its
performance, but is some way concerned therein, either before or
after the fact committed” and as “one who participates in a
felony too remotely to be deemed to principal.” 76 F.2d at 487(internal quotation marks and citations omitted). It defined
“accessory after the fact” as “one who, knowing a felony to have
been committed by another, receives, relieves, comforts, or
assists the felon in order to hinder the felon’s apprehension,
trial, or punishment.” Id.I appreciate that Defendant failed to preserve this issue
and that we view it only through the plain error lens. That
limits us to correcting those errors that are “plain” and that
“affect substantial rights.” United States v. Olano, 507 U.S.
725, 732 (1993) (internal quotation marks and citation omitted).
26
Further, we generally refrain from intervening where the error
does not seriously impact the fairness and integrity of the
proceedings. Id.While plain error is a high hurdle, I nevertheless conclude
that Defendant clears it here. First, as a matter of law,
Defendant cannot be a principal offender and an accessory after
the fact to himself. Therefore Defendant’s accessory after the
fact conviction constitutes clear legal error. *
As for whether the error affected Defendant’s substantial
rights, “in most cases it means that the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings.” Olano, 507 U.S. at 734. Here, without
question, it did. If the law had been applied correctly in this
case, Defendant could not have been convicted both as a
principal participant in the arson and as an accessory after the
fact. In other words, the clear legal error directly affected
the outcome of the district court proceedings.
In sum, I conclude that, as a matter of law, a defendant
cannot be convicted as a principal offender and as an accessory
*
The majority opinion cites United States v. Triplett, 922
F.2d 1174 (5th Cir. 1991), as going the other way on this issue.
While the Fifth Circuit undoubtedly allowed convictions for both
principal and accessory-after-the-fact liability to stand, its
opinion failed to acknowledge, let alone analyze, the conundrum
of allowing a principal to be convicted of acting as an
accessory after the fact to himself.
27
after the fact. Nevertheless, Defendant here was convicted of
both. That constituted clear and prejudicial error that, in my
view, seriously detracts from the fairness of the proceedings.
Olano, 507 U.S. at 732. Accordingly, I would vacate Defendant’s
accessory after the fact conviction and therefore respectfully
dissent.
28