United States v. Churchill

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 6, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10905
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD RICHARD CHURCHILL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-373-ALL-G
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Donald Richard Churchill appeals his convictions for
attempting to damage and destroy by means of fire and an
explosive, a building used in interstate commerce and with using,
carrying, and possessing a destructive device in furtherance of
arson. Churchill was sentenced to a term of imprisonment of 152
months for the attempt charge and to life imprisonment on the
charge involving the use of a destructive device.

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No. 02-10905
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Churchill argues that the evidence was insufficient to
support his convictions for the two aforementioned charges
because there was no intent to destroy the Custom Canvas building
during that incident. He argues that the fire in that building
was started to remove suspicion from the tenant of the building
damaged in the first fire.
Viewing the evidence in the light most favorable to the
verdict, it was sufficient to show that Churchill acted with
willful disregard or intentionally to use a destructive device to
cause damage to the Custom Canvas Building, a building containing
a business involved in interstate commerce. Churchill obtained
the jugs, the accelerant, and the wicks necessary to create the
destructive device required to carry out the crime of violence,
arson. He brought Hartkey to the building and directed Hartkey
to ignite and throw the jugs at the building. Churchill took the
overt steps necessary to cause damage and, in fact, did cause
damage to the second building with the use of an incendiary
device.
There was sufficient evidence presented for a rational trier
of fact to find that the Government proved the essential elements
of both offenses beyond a reasonable doubt. See 18 U.S.C.
§ 844(i); 18 U.S.C. § 924(c)(1)(B)(ii); United States v. Monroe,
178 F.3d 304, 307 (5th Cir. 1999); United States v. Briscoe, 742
F.2d 842, 846 (5th Cir. 1984).

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No. 02-10905
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Churchill argues that the district court plainly erred in
admitting opinion evidence by the investigating officer regarding
an immunity agreement. He argues that the testimony constituted
an opinion as to Hartkey’s veracity and implied that his
testimony as to Churchill’s guilt was true.
The prosecutor’s question concerning the witness’s immunity
agreement was in response to defense counsel’s assertion during
cross-examination of the officer that the Government acted
hastily and unreasonably in providing Hartkey with complete
immunity. The officer’s response was not an opinion on the
ultimate issue of Churchill’s guilt, but merely an affirmation of
his belief that the Government acted prudently in granting
Hartkey immunity. Therefore, it was not error to admit this
testimony.
Churchill argues that the district court abused its
discretion in allowing the Government to elicit testimony about
his misconduct and bad character. The testimony complained about
did not fall into any of the exceptions to the hearsay rule cited
by the Government because it is not clear that the statements
were made contemporaneously with the incident and because the
source of the women’s fears was not admissible evidence of their
existing mental state. See FED. R. EVID. 803(1), (2), (3).
Although the testimony concerning the women’s statements was not
admissible, the error was harmless because it was not so

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No. 02-10905
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prejudicial as to affect the jury’s verdict. See United States
v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).
Churchill argues that the district court abused its
discretion in allowing the prosecutor to ask Thomas whether he
believed Churchill was “crooked” and engaged in shady deals.
because it was elicited to prove that he was a man of bad
character and acted in conformity therewith. Although this
testimony indicated that Churchill had previously engaged in some
“shady” deals, it was also evidence that Thomas was aware that
Churchill was not a law-abiding citizen. The Government’s
question raised an inference that if the building’s tenant was
seeking a means to illegally collect insurance money, he would
have felt comfortable asking Churchill to become involved in the
scheme. Thus, the evidence was admissible for a purpose other
than to merely show Churchill’s bad character. See FED. R. EVID.
404(b).
Further, as the Government points out, in cross-examining
accomplice Hartkey about one of his statements, defense counsel
referred to Hartkey’s comment that Churchill had been involved in
different scams and two or three insurance jobs. Counsel opened
the door to questioning about Churchill’s past unlawful
activities and, thus, cannot complain about the prosecutor’s
pursuit of the subject. See United States v. Raymer, 876 F.2d
383, 388 (5th Cir. 1989).

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No. 02-10905
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With respect to the testimony that Churchill was intoxicated
during the clean-up process, it was admissible to show why
Churchill was so candid about making money as a result of the
fire. The admission of that evidence was not plain error.
Churchill’s convictions are AFFIRMED.

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