United States v. Ashworth (836 F.2d 260, 1988)

BAILEY BROWN, Senior Circuit Judge.

Defendants-appellants J.D. and Scott Ashworth appeal their convictions on five counts in a jury trial held before the United States District Court for the Eastern District of Kentucky. They cite as error the district court’s denial of their motion for a judgment of acquittal based on the insufficiency of the evidence and their alternative motion for a new trial based on the verdict’s being against the great weight of the evidence. The Ashworths also maintain that they are entitled to a new trial since a government witness, on cross-examination, impermissibly testified concerning evidence that had been the subject of a pretrial suppression order. Additionally, they assert that a new trial is mandated because of prosecutorial misconduct during argument to the jury. Finally, the Ashworths contend that, even if the government witness’s impermissible testimony or the pros-ecutorial misconduct, standing alone, are insufficient to warrant a new trial, the totality of the circumstances, including the “extremely close question of guilt, and the cumulative effect of the errors provides sufficient grounds to warrant a new trial.” For the following reasons, we affirm the judgment of the district court.

I.

At approximately 2:30 a.m. on February 12, 1984, the Henry County Tobacco Warehouse in Carrollton, Kentucky, burned to the ground. The warehouse was owned by defendants, J.D. and Scott Ashworth, and operated by their brother, the late John Wade Ashworth. Present in the building at the time it caught fire was Larry Taylor, a former warehouse employee, who had agreed to return to Carrollton from North Carolina for the ostensible purpose of reworking the warehouse tobacco in preparation for a scheduled cleanup sale. Taylor escaped the blaze by breaking an office window and climbing out.

On February 28, 1984, J.D. Ashworth submitted proof of loss forms to two insurance companies for damage caused by the fire. The First State Insurance Company (“First State”), insurer of the warehouse building, received a claim equal to the value of the warehouse. The Insurance Company of North America (“INA”), insurer of the tobacco contents, received a claim based on a loss of 130,000 pounds of “house” tobacco (warehouse-owned) and 76,000 pounds of “farmer” tobacco (tobacco owned by various farmers to be sold on consignment by the warehouse).

On May 23, 1984, J.D. Ashworth submitted an amended proof of loss to INA reflecting a loss of only 115,000 pounds of house tobacco and 8,000 pounds of farmer tobacco. He submitted fourteen warehouse bills of lading to support his claimed loss of farmer tobacco. These bills of lading showed that the destroyed farmer tobacco was owned by seven individually-named farmers. INA never paid these claims, but later paid twelve other farmers for a total of 9,189 pounds.

On June 4,1986, the grand jury returned a five-count indictment naming J.D. Ash-worth, Scott Ashworth, and Larry Taylor as defendants. Count I alleged a conspiracy to use fire to destroy property used in interstate commerce and to commit fraud by United States mail in violation of the federal conspiracy statute, 18 U.S.C. § 371. Count II alleged a violation of 18 U.S.C. § 844(i), which proscribes the use of fire to destroy property used in interstate commerce. Counts III and IV alleged a violation of 18 U.S.C. § 1341, which makes criminal the devising of a scheme to defraud and the use of the United States mail to carry out the scheme. Count V alleged a violation of 18 U.S.C. § 844(h), which prohibits the use of fire to commit offenses prosecutable in United States court (namely, the mail fraud alleged in counts III and IV).

The joint trial of the Ashworths and Taylor was held on October 6 — 10, 1986. During cross-examination by defense counsel, a claims representative for INA testified that claims stemming from “a fire that occurred to the warehouse next door in 1983” had not been paid by Fireman’s Fund Insurance Company. Although the jury did not learn of this, the warehouse “next door” was owned by the late John Wade Ashworth. Because of the potential prejudice that might accrue from disclosure of this fire, the district court had issued a pretrial order barring evidence of this prior fire on the ground that it was irrelevant.

In argument to the jury, the United States attorney referred to prior statements by J.D. Ashworth and Taylor wherein they allegedly denied talking with each other on the night of the fire. The district court later found, during a bench conference in which defendants moved for a mistrial, that the statements were not in evidence.

On October 10, 1986, the jury returned a guilty verdict as to all five counts against the Ashworths. The jury acquitted Taylor.

After trial, the Ashworths moved for a judgment of acquittal or, in the alternative, a new trial based on the following grounds: (1) there was insufficient evidence to support the guilty verdicts entitling them to a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure; (2) the jury verdict was against the great weight of the evidence entitling them to a new trial in the interest of justice under Rule 33 of the Federal Rules of Criminal Procedure; (3) the statement by the government witness during cross-examination concerning the irrelevant fire at the warehouse next door was unduly prejudicial and warranted a new trial; and (4) the United States attorney’s reference in argument to the jury to statements of J.D. Ashworth and Taylor not in evidence that they did not speak to each other on the night of the fire was reversible error not cured by a subsequent jury instruction “that [the jury’s] recollection of the evidence controlled and the attorney’s arguments were not evidence.” Additionally, the Ashworths contended that the United States attorney’s statement constituted an impermissible prosecutorial comment on their failure to testify.

The district court denied the Ashworths’ motions for a judgment of acquittal and a new trial holding that the evidence of guilt was sufficient to sustain the verdict, that the government witness’s statement on cross-examination concerning the “other fire” was not so prejudicial as to require a new trial, and that the United States attorney’s reference to alleged statements not in evidence, while error, was “neutralized” by the court’s jury instruction and did not constitute a prosecutorial comment on the Ashworths’ failure to testify. From the district court’s judgment, the Ashworths now appeal.

II.

A.

The Ashworths first contend that the district court erred in overruling their motion for a judgment of acquittal as to all counts based on the insufficiency of the evidence. The standard of review for insufficiency claims is: Viewing the evidence in the light most favorable to the prosecution, is the evidence “such that a reasonable mind might fairly find guilt beyond a reasonable doubt.” United States v. Ayotte, 741 F.2d 865 (6th Cir.), cert. denied 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984). In reaching this determination, all of the evidence adduced at trial is to be considered. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). And it must be remembered that “circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984). After examining the evidence adduced at trial, we conclude that the jury could have reasonably concluded that the Ashworths were guilty beyond a reasonable doubt.

At trial, the government offered evidence tending to prove the following facts:

(1) Two weeks before the fire, J.D. Ash-worth terminated the employment of the warehouse night watchman, Jerry McKinney, because the tobacco selling season had ended. Arrangements were subsequently made for former nightwatchman Larry Taylor to come to Car-rollton from his home in North Carolina for the avowed purpose of reworking the remaining tobacco for a cleanup sale.

(2) Also two weeks before the fire, the warehouse purchased 40,000 pounds of tobacco at 80