* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-50945

Summary Calender

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SCRUGGS PROPERTIES, INC.,

Plaintiff-Appellant,

VERSUS

STATE FARM LLOYDS,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(SA-96-CV-1246)

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August 19, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Scruggs Properties, Inc. (“Scruggs”), appeals an adverse jury

verdict on its insurance policy claim. Finding no reversible error

in this Texas diversity case, we affirm.

I.
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On July 5, 1995, Donald Scruggs went to his office and found

that the property had been burglarized the evening before. The

thieves had taken about $39,000 worth of inventory and caused the

company about $46,000 in lost income. Scruggs called the police

and his insurance company.

When the police arrived, Detective Randy Oakes suspected an

inside job: The placement of the shattered window glass, which the

thieves apparently used to enter, suggested a ploy. Oakes

suspected that whoever was behind the theft probably entered

through the door, with a key, and later smashed the window to make

it look like a forcible entry.

Oakes’s beliefs were reinforced by the fact that the thieves

appeared in no hurry to take the goods. They had neatly stacked

equipment near the doorway, wrapping cords and all, apparently in

anticipation of a second trip. Oakes also noticed, from a few

empty cans, that the thieves had taken time to have a beer or two

before completing the theft.

Oakes interviewed Scruggs’s employees and found that several

believed the burglary was the work of Douglas Rockwell, who

purportedly had gone into business with Scruggs. Scruggs provided

the name and perhaps some clients, and Rockwell was to have

provided the cash and the facilities.

Oakes’s background research on Rockwell turned up a likely

suspect. Rockwell apparently was living under an assumed name, on

the run from a fraud charge, and had fabricated his existence in
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several other areas of the country in an attempt to cheat a buck.

Oakes and Scruggs also learned that Rockwell had swindled Scruggs

in their business deal. Rockwell had in fact provided none of his

own capital, but instead provided money by forging Scruggs’s name

on loan documents and leases, and by using Scruggs’s credit card.

Oakes thereafter proceeded to Rockwell’s apartment. When he

arrived, Rockwell initially fled, but returned, saying later he

thought Oakes was there to arrest him. When Rockwell found out

what Oakes wanted, he fled in earnest and remains at large.

Oakes obtained entry to Rockwell’s apartment with the

permission of the landlord, who complained that Rockwell had fled

without paying rent. Oakes, who did not have a search warrant,

discovered some of the property that Scruggs had listed as stolen

and photographed the articles. 

Meanwhile, Scruggs was pursuing his insurance claim against

his carrier. At the outset, the insurance company advanced him a

check for $3,000, promising to pay the full amount later.

The policy, however, contained an exclusionary clause, which

prevented recovery if a burglary was committed by a partner, joint

venturer, officer, director, employee or agent of the company.

Believing that Rockwell had committed the crime, the insurance

company refused to pay Scruggs’s claim under this exclusionary

clause.

II.
4

Scruggs sued in state court, and the insurer removed. The

parties stipulated that the sole issue for trial was whether

Rockwell had committed the burglary. If he did, and was found to

be a person acting within the exclusionary clause’s limits,

Scruggs conceded the policy would not apply. Likewise, the insurer

conceded that if Rockwell did not commit the crime, or was not

found to be a person acting within the scope of the exclusionary

clause, the insurer was liable.

Thus defined, the case proceeded to a jury trial, at which

Oakes testified that he believed Rockwell had committed the crime.

There was evidence of Rockwell’s schemes to defraud, specifically,

his prior fraud charge and his non-burglary-related fraud on

Scruggs.

Scruggs moved to exclude the insurer’s introduction of Oakes’s

photographs taken at Rockwell’s apartment, on the ground that Oakes

had obtained them without a warrant. Scruggs then moved to impeach

Oakes’s testimony, claiming that Oakes was unable to obtain

fingerprints, or other genetic evidence; and that the police had

failed to arrest Rockwell for the crime. Instead, Scruggs

maintained a theory that the broken window (and some removed bars

that covered it) proved that this crime was the result of an

outside job.

Jurors were asked (1) whether Rockwell committed the burglary

and (2) if so, whether Rockwell was a person acting within the

scope of the insurance policy. The jury returned affirmative
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answers on both questions, and the court entered judgment for the

insurer. 

Scruggs appeals only the evidentiary sufficiency of the

finding on the first interrogatory. In doing so, he also makes

evidentiary challenges. 

III.

Scruggs claims that the district court erred in admitting

Oakes’s photographs taken in Rockwell’s apartment. Scruggs claims

that the photos were obtained in violation of the Fourth Amendment

and should therefore be excluded. He also appears to challenge

this evidence’s reliability.

A.

Even assuming Scruggs’s invocation of the exclusionary rule in

this civil proceeding were not otherwise problematic, he has no

standing to assert this Fourth Amendment violation under the wellsettled law of this circuit, because he lacks “(1) . . . an actual,

subjective expectation of privacy with respect to the place being

searched or items being seized, and (2) whether that expectation of

privacy is one which society would recognize as reasonable.”

United States v. Lee, 898 F.2d 1034, 1037-38 (5th Cir. 1990). 

B.
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Scruggs claims the district court should have excluded this

evidence because it was “unreliable.” He maintains that Oakes

never matched the serial numbers of the equipment in the

photographs with those listed as stolen, and therefore, cannot be

sure that those were the stolen goods.

This objection goes more to sufficiency of the evidence than

to admissibility. The point Scruggs raises, therefore, was for the

jury to weigh and evaluate in reaching its decision on how much to

credit the evidence.

Even if we were to consider this objection as a general FED.

R. EVID. 403 challenge that the prejudicial effect of the evidence

outweighed its probative value, however, Scruggs would fare no

better. We review rule 403 challenges for abuse of discretion.

See Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 360 (5th

Cir. 1995). We find no such abuse of discretion here.

IV.

Scruggs challenges, for the first time on appeal, the

introduction of Rockwell’s other bad acts to show that Rockwell,

more likely than not, committed this robbery of Scruggs’s office.

Scruggs claims the court should have excluded this evidence under

FED. R. EVID. 404(b): that the insurer should not have been allowed

to introduce evidence of Rockwell’s bad character to prove that he

acted in conformity therewith.
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Even assuming that this claim were properly before us (an

assumption that does not affect the outcome of our analysis), the

court did not abuse its discretion in admitting the evidence under

rule 404(b). Evidence of Rockwell’s past defrauding actions were

relevant in showing a pattern, or plan, to defraud Scruggs, so the

district court was well within its discretion in deciding to admit

them. See FDIC v. Fidelity & Deposit Co., 45 F.3d 969, 979 (5th

Cir. 1995).

V.

“In determining the sufficiency of the evidence, we apply

well-settled standards of appellate review. If the state of the

proof is such that reasonable and impartial minds could reach the

conclusion expressed in the jury's verdict, we must not disturb the

jury's findings on appeal.” Carlton v. Shelton, 722 F.2d 203, 205

(5th Cir. 1984).

The evidence supports the jury’s finding. Although jurors

could have believed Scruggs’s theory, that is, that someone else

had broken in from the outside, there was ample evidence that

Rockwell was one of the culprits. Rockwell had otherwise defrauded

Scruggs; he had fled; and he had what appeared to be some of the

stolen merchandise in his apartment. We are unable to say that no

reasonable juror could have drawn the conclusion of this jury on
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the first interrogatory.

AFFIRMED.