UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5913

ANTONIO HERNANDEZ, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-94-249)

Submitted: November 28, 1995

Decided: January 30, 1996

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dorathea J. Peters, Alexandria, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Mark J. Hulkower, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Antonio Hernandez, Jr., appeals his convictions of mail fraud and

conspiracy to commit arson and mail fraud. The convictions relate to

a scheme to burn the Omega Restaurant and to fraudulently collect

the proceeds of an insurance policy on that establishment. Because we

find no merit in either claim raised on appeal, we affirm the convictions.

I

Testimony at trial revealed that Lerida Baldo owned the restaurant,

which by 1990 was having serious financial difficulties. She discussed those problems with her boyfriend, Antonio Hernandez, Sr.,

Appellant's father, and Appellant, both of whom lived with her. Antonio, Sr., suggested that Baldo secure insurance on the property. Once

the property was insured, he would burn the restaurant so that Baldo

could collect the proceeds of the insurance policy. Baldo testified that

Appellant participated in the discussions. Baldo eventually agreed to

the proposal and agreed to pay Antonio, Sr., $10,000 for his services;

Appellant was to receive a portion of this money.

In October 1990, Baldo obtained an insurance policy. She, Appellant, and Antonio, Sr., began discussing the planned arson. Among

the things discussed was the need to move certain goods, such as

food, from the restaurant prior to the fire. As planned, Appellant and

his father took perishables from the restaurant to Baldo's home several days before the fire.

On November 6, Appellant, his father, and David Sarmiento, a

coconspirator who pled guilty and testified at Appellant's trial, loaded

blankets and fuel into Sarmiento's car. According to Sarmiento,

Appellant wished his father and Sarmiento luck as they left for the

restaurant. Sarmiento testified that, once at the restaurant, he and

Appellant's father set fire to fuel-soaked strips of blankets which they

had scattered throughout the restaurant.

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Baldo mailed an insurance claim to her insurer. Because of suspicions about the cause of the fire, the insurance company delayed settlement. Both Appellant and his father became angry with Baldo

about not having been paid as promised, and they threatened to harm

both her and her family if they were not paid. Baldo testified that

Appellant grabbed and choked her because he had not received his

money. Baldo terminated her relationship with both men. Ultimately,

her insurance claim was denied.

II

Appellant first claims that there was insufficient evidence to convict him. In reviewing the sufficiency of the evidence, we consider

"whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant

guilty beyond a reasonable doubt." United States v. Tresvant, 677

F.2d 1018, 1021 (4th Cir. 1982). Circumstantial as well as direct evidence is considered, and the Government is entitled to all reasonable

inferences which can be drawn from the facts established. Id. In

resolving a sufficiency question, we do not weigh evidence or make

credibility determinations. United States v. Saunders, 886 F.2d 56, 60

(4th Cir. 1989).

Conviction of conspiracy requires a showing of an agreement to

commit an illegal act, the defendant's willing participation, and an

overt act in furtherance of the conspiracy. United States v. Dozie, 27

F.3d 95, 97 (4th Cir. 1994); see 18 U.S.C.A.§ 371 (West Supp.

1995). Once a conspiracy is established, proof of only a slight connection between the conspiracy and the defendant will sustain a conviction. United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert.

denied, 60 U.S.L.W. 3879 (U.S. 1992). "Mail fraud requires a showing of (1) knowing participation in a scheme to defraud and (2) a

mailing in furtherance of the scheme." Dozie , 27 F.3d at 97; see 18

U.S.C.A. § 1341 (West Supp. 1995). To sustain a conviction for

arson, the building that was intentionally burned must be shown to

have been used in an activity affecting interstate commerce. Business

property falls within the reach of the commerce power. United States

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v. Ramey, 24 F.3d 602, 606-607 (4th Cir. 1994); see 18 U.S.C.A.

§ 844(i) (West Supp. 1995).*

There was sufficient evidence to convict Appellant of conspiracy

to commit mail fraud and arson. He participated in numerous discussions regarding the intended destruction of the restaurant. Several

days before the fire, Appellant assisted in removing goods from the

restaurant. He expected a share of the proceeds from the insurance

proceeds that Baldo was to collect after she mailed a fraudulent claim

to the insurer. He assaulted Baldo in his frustration over not having

received his share of the money. In short, he was a willing participant

in the scheme from its earliest stage, he knew that the ultimate goal

of the scheme was to fraudulently obtain insurance money, and he

expected a share of that money.

The evidence also was sufficient to sustain Appellant's conviction

of mail fraud. A fundamental tenet of conspiracy law is that a defendant is liable for the substantive crimes of his coconspirators when

those crimes are reasonably foreseeable. Pinkerton v. United States,

328 U.S. 640, 647 (1946). In the subject case, the mail fraud clearly

was both foreseeable and in furtherance of the conspiracy because the

ultimate goal of the conspiracy from the start was to defraud the

insurance company. Thus, as a coconspirator, Appellant was liable for

mail fraud even though it was not he who actually mailed the fraudulent insurance claim. See United States v. Cummings, 937 F.2d 941,

944-45 (4th Cir.), cert. denied, 502 U.S. 948 (1991).

III

Appellant next contends that the Government violated Fed. R.

Evid. 613(b) by failing to confront Sarmiento with his prior inconsistent statements prior to impeaching him. When he testified for the

Government, Sarmiento denied having any direct discussions with

Appellant about the fire. Roberto Sera, who was called by the defense, testified that while he and Sarmiento were in jail together, Sar-

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*The parties stipulated at trial that the restaurant was burned due to an

intentionally set fire, or arson, as that term is defined in 18 U.S.C.A.

§ 844(i) (West Supp. 1995), and that the restaurant was a business establishment that affected interstate commerce.

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miento said that Appellant knew of the plan to burn the restaurant,

purchased the fuel with which the fire was started, and helped to load

the blankets and fuel into Sarmiento's car. Sarmiento was recalled.

Although he initially denied telling Sera that Appellant had advance

knowledge of the fire, Sarmiento eventually admitted that Sera had

testified truthfully and that Appellant indeed had discussed knowing

of--and participating in--the scheme in advance of the fire.

Under Fed. R. Evid. 613(b), the timing of the introduction of

impeaching extrinsic evidence is of no moment provided the impeached witness has an opportunity to explain the prior inconsistent

statement. Fed. R. Evid. 613(b) advisory committee's notes; see

United States v. Peay, 972 F.3d 71, 74 (4th Cir. 1992). In this case,

Sarmiento was confronted with Sera's impeaching testimony, and he

responded to that testimony. The Government's failure to confront

Sarmiento with the prior inconsistent statement during its case-inchief does not, as Appellant urges, violate Rule 613(b).

IV

We accordingly affirm the convictions. We dispense with oral

argument because the facts and legal contentions are fully presented

in the materials before us and argument would not aid the decisional

process.

AFFIRMED

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