D.C. No. 4:11-CR-00100-CVE-1, N.D. Okla.
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
ORDER AND JUDGMENT [*]
Carlos F. Lucero Circuit Judge
Sammy Joe Perryman appeals seven convictions related to the arson of his business. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Perryman owned and operated a health club known as Vintage Health Quest or the Tulsa Athletic Club. On January 22, 2006, the club was severely damaged by fire, the cause of which was later determined to be arson. Perryman was charged with eleven counts related to the fire. He went to trial on seven: Count One alleged that Perryman used fire to commit mail fraud in violation of 18 U.S.C. § 844(h)(1); Count Two alleged he destroyed a building affecting interstate commerce by means of fire in violation of 18 U.S.C. § 844(i); and Counts Three through Seven charged him with executing a scheme to defraud based on fraudulent insurance claims in violation of 18 U.S.C. § 1341.
At trial, the government showed that the club had been losing money and that Perryman was in financial distress. Between 2003 and 2005, club revenues declined by forty-seven percent. A club employee estimated that membership had declined by seventy-five percent over roughly the same period. Several witnesses testified that the club and its facilities were in poor condition and needed significant maintenance. Defense witnesses, however, countered that the club was in good condition and that repair work had been completed around the time of the fire. Perryman had attempted to sell the property beginning in 2004, but was unable to find a buyer.
Because the club was losing money, Perryman used loans to cover operating expenses. The maturity date on a second mortgage on the property was extended in late 2005. Perryman owed approximately $122, 000 on that loan, and missed the payment due in January 2006. In May 2005, he also obtained a $150, 000 loan secured by a third mortgage. A balloon payment was due for that loan in May 2006.
Perryman experienced personal financial troubles as well. He filed for personal bankruptcy protection in 2005, listing over $400, 000 in debts and just $800 in assets. His personal debt was discharged in the bankruptcy proceeding in August 2005, but Perryman moved to dismiss the case after the fire. He stated that pending insurance proceeds would be sufficient to pay off his debts. Perryman had carried a one million dollar insurance policy on the building, and additional coverage for business personal property and business income. His claim based on the fire, however, was denied by Hartford Insurance. Portions of Perryman's deposition from the insurance investigation were provided to the jury.
The prosecution introduced several pieces of evidence suggesting Perryman planned the fire. A tenant who rented the apartment above the club testified that Perryman asked him to stay elsewhere the night of the fire because Perryman was setting off bug bombs. Two employees testified that Perryman removed personal items, including paintings and Boy Scout medals, from the club a few weeks before the fire. Perryman's ex-wife, Shannon Olmos, however, testified that the paintings had been removed two months before the fire after the artist had passed away.
On the day of the fire, Olmos and Perryman, who had been a full-time firefighter for fifteen years, visited the club to set the insecticide devices. A receipt indicated that their vehicle passed a toll booth located about fifteen minutes from the club at 5:32 p.m. Olmos estimated the pair was at the club for about thirty minutes, during which time they were in separate parts of the building. Perryman asked Olmos to wait in their vehicle while he finished up, which took five to ten minutes. Another receipt indicated that the couple stopped at a gas station located just a few minutes from the club at 6:14 p.m.
The fire was reported around midnight. Firefighters noted that one of the doors of the health club was standing open, but all of the other doors were locked. A fire investigator with the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified that the fire started near the men's sauna and that it was deliberately set using gasoline. The agent noted that much of the building contained very little fuel for a fire. He explained that starting the fire near the sauna would make it difficult to detect because it was an interior portion of the building away from doors and windows. Another witness stated that the building was very large, roughly 30, 000 to 40, 000 square feet.
When he arrived at the scene of the fire, Perryman told investigators that he believed a former employee, Stace Proctor, had started the blaze. Perryman stated that Proctor was a long-time member who had recently been kicked out of the club for making inappropriate comments to a female employee, and claimed Proctor had sent him a threatening note. The woman referenced by Perryman testified that Proctor had made lewd comments toward her, and that he threatened her when he was ejected from the club. Two employees testified that Perryman blamed Proctor when he called to notify them of the fire. Proctor testified at trial. He denied making any threats and testified that he was not involved in the fire, although he admitted making inappropriate comments and conceded that he did not have a confirmable alibi for the night in question.
The jury returned a verdict of guilty on all seven counts. The district court imposed a total sentence of 180 months' ...