*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opinion should not be published and is not precedent except under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

 

No. 97-10386

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES NATHANIEL THOMAS,

also known as Chuck Thomas,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Northern District of Texas, Fort Worth

(4:96-CR-80-E-1)

 

August 17, 1998

Before GARWOOD, JONES and WIENER, Circuit Judges.*

PER CURIAM:

Charles Nathaniel Thomas (Thomas) appeals his conviction,

following a jury trial, on all counts of a five-count indictment,

and he also appeals his sentence. We affirm.

The charges in question relate to a February 5, 1996, fire,

which Thomas allegedly paid another to set, at Thomas’s beauty

salon, and his subsequent claim on his $75,000 fire insurance
2

policy covering the salon’s contents at that location. Count One

alleged a December 1995 to May 1996 conspiracy by Thomas and

others, in violation of 18 U.S.C. § 371, to commit the offenses of

mail fraud, contrary to 18 U.S.C. § 1341, use of fire to commit the

federal felony of mail fraud, contrary to 18 U.S.C. § 844(h), and

damaging a building by fire contrary to 18 U.S.C. § 844(i). Count

Two alleged that on February 5, 1996, Thomas and others damaged and

destroyed, and attempted to damage and destroy, by fire, a building

and real property used in interstate commerce and in an activity

affecting interstate commerce, namely the beauty salon and other

businesses located in the same building, contrary to section 844(i)

and 18 U.S.C. § 2. Count Three alleged that on February 5, 1996,

Thomas and another knowingly used fire to commit the federal felony

of mail fraud, contrary to sections 844(h) and 2. Count Four

charged that on February 12, 1996, Thomas and another committed

mail fraud, contrary to sections 1341 and 2, by causing certain

documents to be placed in the mail to the insurance company, for

the purpose of executing the scheme and artifice to defraud that

company in reference to the fire loss. Finally, Count Five alleged

that on February 19, 1996, Thomas and another again committed mail

fraud, contrary to sections 1341 and 2, by causing certain other

documents to be mailed to Thomas’s wife by the insurance company’s

adjuster, again for the purpose of executing the scheme and

artifice to defraud the insurance company in reference to the fire

loss. Following the jury’s verdict of guilty on each of the five

counts, Thomas was sentenced to concurrent terms of forty-five
3

months on each of Counts One, Two, Four, and Five, and to a

consecutive term of sixty months on Count Three, for a total of one

hundred five months; concurrent three-year terms of supervised

release were also imposed on each of the five counts.

Discussion

Thomas raises the following four claims on this appeal.

1. Thomas asserts the evidence is insufficient to support his

conspiracy conviction under Count One, principally claiming that

the testimony of the government’s witnesses, Simmon, who stated

that Thomas asked him to get Parker to have the fire set, and

Parker, who likewise testified that Thomas had offered him $10,000

to burn the salon and that he had hired Jenkins to do so, was

contradictory and incredible as a matter of law. We reject this

contention. The credibility of these witnesses was clearly for the

jury. See, e.g., United States v. Osum, 943 F.2d 1394, 1405 (5th

Cir. 1991). Nor did these witnesses materially contradict each

other in respect to Thomas’s role in the offense. The evidence is

well more than minimally sufficient to sustain the verdict.

2. Thomas claims that the evidence is insufficient to support

his conviction on Count Two, the violation of section 844(i) by

burning the salon, because a sufficient nexus to interstate

commerce is not shown to satisfy section 844(i) or, alternatively,

that section 844(i) is invalid as applied here as being beyond

Congress’s power under the Commerce Clause as interpreted in United
 

1In his initial brief, Thomas referred to Count Three, but

Count Two was obviously intended (mail fraud was the jurisdictional

hook in Count Three, charged under section 844(h), not any

relationship of the burned property to interstate commerce), and

this was corrected in his reply brief.

 

2We note than an enterprise engaged in interstate commerce

may, at least to some extent, be subject to congressional

protection or regulation even though its activities do not

4

States v. Lopez, 115 S.Ct. 1624 (1995).1 Section 844(i) as then in

effect provided in relevant part:

“(i) Whoever maliciously damages or destroys, or

attempts 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 shall be imprisoned for not more than 20 years

. . . .”

The evidence showed that the purpose of the arson was to burn the

salon so as to collect on the $75,000 insurance policy covering its

contents. The salon was a commercial business, located in premises

leased for that purpose, situated in a commercial strip shopping

center in Fort Worth, Texas, which likewise housed other commercial

businesses, at least some of which were also damaged in the fire.

The salon used and sold to its customers, among other things,

shampoo, styling gel, and other hair styling products, some of

which were manufactured by Matrix Essentials in Ohio and were

shipped from there to the warehouse of a Texas wholesaler, who in

turn sold them to the salon, delivering them to the salon from the

warehouse. Only a few thousand dollars worth of such Matrix

products was proved up. Thomas argues, with considerable force,

that this does not demonstrate a “substantial” effect on interstate

commerce.2
substantially affect interstate commerce. See United States v.

Robertson, 115 S.Ct. 1732 (1995).

 

3We do not accept the general thrust of the government’s

aggregation argument, just as we did not in Corona, where we noted

that in its uncabined form it “would for all practical purposes

grant the federal government a general police power,” contrary to

Lopez. Corona at 570. Corona was a section 844(i) case, so is

controlling here. Similarly, in United States v. Bird, 124 F.2d

667, 676-77 (5th Cir. 1997), we rejected an uncabined “aggregation”

argument, noting that “[u]nless there is something that relevantly

ties the separate incidents and their effects on interstate

commerce together, aside from the desire to justify congressional

regulation, the government’s ‘class of activities’ interpretation

would transform Justice Breyer’s Lopez dissent into the

constitutional rule.” Bird at 677.

5

Bound by Russell v. United States, 105 S.Ct. 2455 (1985), we

must ultimately reject Thomas’s attack on his Count Two conviction.

See also United States v. Nguyen, 117 F.2d 796 (5th Cir. 1997).

Were the matter res nova, a powerful argument could be made for the

opposite result here. But Lopez does not purport to overrule

Russell, and, while we will not expand Russell or read it broadly,

United States v. Corona, 108 F.3d 565, 569-70 (5th Cir. 1997), if

Russell is to be significantly narrowed or overruled that must be

done by the Supreme Court, not this Court. Our reasoning here is

parallel to the approach taken in the special concurrence (in which

all panel members joined) in United States v. Rawls, 85 F.3d 240,

243-44 (5th Cir. 1996). See also United States v. Kuban, 94 F.3d

971, 973 n.4 (5th Cir. 1996).3 We reject Thomas’s commerce based

challenge to his conviction on Count Two. This likewise requires

rejection of Thomas’s related challenge to his Count One

conviction, as that is based on the premise that the Count Two

conviction is invalid on commerce grounds, a premise which we have
6

rejected.

3. Thomas complains of the admission of evidence that he had

participated in a 1994 insurance fraud involving a claim for water

damage of equipment at his business. We apply abuse of discretion

review. See United States v. McCarty, 36 F.3d 1349, 1353 (5th Cir.

1994). No abuse of discretion is shown. Contrary to Thomas’

contention, we hold that the evidence of his involvement in this

1994 insurance claim was sufficient to permit a reasonable juror to

conclude that his intent in connection therewith was criminal. We

also reject Thomas’s contention that the probative value of this

evidence, particularly with respect to the issue of intent in the

charged 1996 mail fraud offenses, did not exceed its prejudicial

effect. The district court expressly found that “[t]he probative

value of this evidence . . . certainly outweighs prejudice.”

Further, the district court gave an appropriate limiting

instruction; Thomas never objected to that instruction and he did

not request any other or further instruction in that regard (nor

does he challenge that instruction on appeal). While Thomas

complains that a brief passage in the government’s jury argument

below went beyond the limiting instruction, no objection thereto

was made below, and reversal under the plain error doctrine is not

appropriate here. We hold that no reversible error is demonstrated

with respect to this complained of evidence.

4. Thomas’s final contention is that the district court erred

in making his Count Three (section 844(h)) sentence to imprisonment

consecutive to the concurrent sentences on the other counts.
7

Thomas relies on the last clause of section 844(h), stating “nor

shall the term of imprisonment imposed under this subsection run

concurrently with any other term of imprisonment including that

imposed for the felony in which the explosive was used or carried.”

(Emphasis added). He points out that the felony to which the Count

Three charge related——mail fraud——did not involve any “explosive,”

and that none of his conduct involved explosives, but rather only

fire. There are several difficulties with Thomas’s argument. To

begin with, it ignores the statutory words “any other term of

imprisonment including.” Moreover, it is contrary to the holding

in United States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995), where

we held that section 844(h) mandated that the sentence thereunder

be consecutive to the sentence for the predicate felony, which

involved only fire and not any explosive. And, Thomas cites no

authority, and we are aware of none, which construes section 844(h)

as he claims it should be in this connection. Finally, only plain

error review is appropriate. Although Thomas states otherwise in

his brief here, the record reflects that he did not below ever

contend that his Count Three sentence did not have to be

consecutive to his sentences on the other counts, and indeed he

expressly recognized that it had to be. The PSR expressly noted

that under section 844(h) the Count Three imprisonment sentence had

to be consecutive. Thomas made many objections to the PSR, but

these did not include any objection to the Count Three sentence

having to be consecutive. In response to Thomas’s objections, the

PSR was amended by an addendum which conceded the correctness of
 

4Thomas’s counsel argued:

“. . . the Court has up to 15 years on Count 3

consecutive, and I know this Court knows the impact of a

consecutive sentence on top of other concurrent

sentences, and the length of time that will cause Mr.

Thomas to be incarcerated. And I would ask the Court to

sentence, then, on Count 3 at the lower end of that

sentence, near the five-year mandatory minimum as opposed

to the upper end, because when coupled with the guideline

range, that causes about a 9- to 11-year incarceration.”

8

all the objections made. At sentencing, Thomas expressly conceded

that all his objections had been cured and that he had no more

objections. The district court at sentencing expressly noted,

without objection by Thomas, that the Count Three sentence would

have to be consecutive. In argument on the sentence, Thomas’s

counsel expressly argued for a low term of years on Count Three

because it had to be consecutive. He asked on this basis for the

then-minimum sentence of five years, and the district court

obliged, imposing five years on Count Three (the then-maximum was

fifteen years; section 844(h) now provides for a mandatory ten year

sentence).4 In making the Count Three sentence consecutive, the

district court, if it erred at all, certainly did not commit error

which was “plainly” such. It was not, and is not now, plain that

section 844(h) does not mandate that the sentence on Count Three be

consecutive. We reject Thomas’s attack on the Count Three

sentence.

Conclusion

Accordingly, the judgment of the district court is

AFFIRMED.