## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 19 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROBERT WIKTOR,

Defendant-Appellant. No. 96-4144

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 95-CV-990)

Submitted on the briefs: Scott M. Matheson, Jr., United States Attorney, Mark K. Vincent, Assistant United States Attorney, United States Attorney’s Of fice, Salt Lake City, Utah, for Plaintiff-Appellee. Edward K. Brass, Salt Lake City, Utah, for Defendant-Appellant.

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

PER CURIAM.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

2 Co-defendant Harp’s trial was severed from defendant’s trial due to a conflict of interest between defendant and Harp’s attorney. -2- Defendant Robert Wiktor appeals his conviction for one count of maliciously damaging property and two counts of mai l fraud. We affirm. 1
I. Background Defendant was the general manager of Great Western Distributing, a telemarketing business owned by co-defendant Kather ine Harp. 2 On June 25, 1992, an intentional fire was set in Great Western Distributing’s storage room. According to firefighters, the fire caused limited damage to a telephone system and one portion of the storage room. The sprinklerhead over the fire was not functioning, and the fire investigator took the hea d for further investigation. In July 1992, defendant completed an insurance proo f of loss with the help of employee Cummings, claiming $239,883 in propertyloss, $150,000 in extra business expenses, and $80,000 in lost income. Def endant claimed the fire destroyed approximately $35,000 worth of jewelry, s everal leather bomber jackets worth $3,330, a painting worth approximately $2,000 , a copy machine, a fax machine, and approximately $135,000 in valuable sal es leads. Unigard Insurance-3-

Company issued several checks on this claim, includ ing checks for clean up and continuing business expenses, for a total of $61,34 7.19. In December 1992, employee Cummings contacted Unigard to inform them that defendant’s claim was fraudulent. He recounte d defendant’s statements that he had set the fire using an alcohol-based solvent, and that he had “super-glued” the sprinkler head. After Cummings contacted the f ire investigator with the same information, the sprinkler head was sent to the Bur eau of Alcohol, Tobacco and Firearms, which confirmed that it had indeed been “ super-glued.” At trial, Cummings testified that defendant told hi m he had set the fire and glued the sprinkler head. He also testified that d efendant instructed him to exaggerate the losses in insurance documents, to in clude items that were not in the storage room at the time of the fire, and to fo rge several receipts allegedly showing that Great Western had purchased the sales leads claimed to have been lost. Cummings testified to defendant’s statements that the fire was very opportune, that he would make a lot of money out of it, and that they had to make it look like the business would reopen to ensure payment of the insurance claim. Finally, Cummings testified that defendant and co-d efendant Harp decided to claim the jewelry and bomber jackets during a phone call; that they sold the allegedly lost leads to another company; that he he lped defendant remove the-4-

undamaged copy machine and fax machine from the off ice; and that the painting claimed to be lost was hanging in defendant’s offic e after the fire. In addition, trial testimony showed the following. There was evidence that the business was in severe financial distress at th e time of the fire, and that defendant had purchased a half-million dollar insur ance policy twenty days earlier, expressing great urgency. An employee tes tified that when she checked and locked the storage room at 9:00 p.m., there was no sign of fire, and that defendant remained at the office when she left the building that evening. Several employees testified that this was very unusual. Th e fire investigator estimated the fire started shortly after 9:00 p.m. When firefigh ters arrived at approximately 10:00 p.m., they found the building locked, the sto rage room unlocked, and the alarm deactivated, although defendant reported he h ad set the alarm when he left. Defendant was one of four people with a key to the building and knowledge of the alarm code. The fire investigator testified that the sprinkler head directly over the fire had been “super-glued.” He also testified that he physically examined the contents of the boxes in which the jewelry, jackets , and painting were allegedly stored, finding nothing but burned paper. He testi fied that such jewelry would not have burned because the fire was not even hot enoug h to burn the stored plastic supplies. None of the photographs taken that eveni ng showed the claimed items.-5-

Further, several employees testified that the sales leads in the storage room were worthless, as they were comprised of already-contac ted potential customers who had not purchased anything. Finally, there was evi dence that the assets and salary figures claimed in the proof of loss were significantly overstated when compared to payroll and business records. Defendant was convicted of maliciously setting the fire and two counts of mail fraud in obtaining insurance proceeds under false pretenses. On September 19, 1994, defendant was sentenced to s ixty-three months’ incarceration and was ordered to pay $61,347.19 in restitution to Unigard. When defendant indicated his intent to appeal, the distr ict court ordered the clerk to file a notice of appeal. Due to inadvertance, this did not occur. In October 1995, defendant filed a motion pursuant to 28 U.S.C. § 22 55, seeking an appeal out of time. The motion was granted in August 1996, and c ounsel was appointed to represent defendant. Additional delays occurred be cause appointed counsel requested several extensions of time and because anincomplete record was transmitted to the court. On appeal, defendant cha llenges the jury instructions and the restitution order, and argues that the inor dinate delay in deciding his appeal resulted in a violation of his right to due process.-6- II. Jury Instructions Defendant argues the jury instructions were incorre ct because (1) the jury was not given a cautionary instruction regarding th e testimony of an accomplice, and (2) the instructions improperly defined “malici ously” to include recklessness. When reviewing jury instructions, we examine them a s a whole to determine whether the jury may have been misled, upholding th e judgment in the absence of “substantial doubt that the jury was fairly guided. ” United States v. Pappert , 112 F.3d 1073, 1076 (10th Cir. 1997) (quotation omitted ). We review an instruction de novo when an objection was made at trial, and fo r plain error when no such objection was made. See id. Defendant argues the district court’s failure to caution the jury sua sponte regarding the suspect nature of Cummings’ accomplic e testimony was plain error, requiring reversal. We have held the failure to gi ve such a cautionary instruction is plain error when the accomplice’s testimony is u ncorroborated. See, e.g. , United States v. Hill , 627 F.2d 1052, 1053 (10th Cir. 1980). Here, howe ver, Cummings’ testimony was substantially corroborated. Through other witnesses, there was evidence that de fendant was present in the building when the fire was estimated to have be gun; that his presence at that time of night was unusual; that he had a strong fin ancial motive to commit arson; and that the sprinkler head was indeed “super-glued ” shut. There also was-7-

overwhelming evidence that defendant claimed the lo ss of items that had not been damaged by the fire or that did not exist. In addi tion, the district court’s credibility instructions to the jury included as a factor to be considered “the witness’ interest in the result of the trial.” R. I, doc. 59, Instr. 12. Under these circumstances, we conclude it was not plain error t o omit an instruction cautioning the jury regarding Cummings’ accomplice testimony. See, e.g. , United States v. Shuckahosee , 609 F.2d 1351, 1356-57 (10th Cir. 1979) (holding when accomplice’s testimony corroborated, general credib ility instruction sufficiently informed jury how such testimony should be consider ed); United States v. Williams , 463 F.2d 393, 395-96 (10th Cir. 1972) (holding fa ilure to give cautionary instruction not reversible error when ac complice’s testimony substantially corroborated). The district court also correctly instructed the ju ry as to the mens rea required by 18 U.S.C. § 844(i), which punishes a pe rson who “maliciously damages or destroys . . . by means of fire or an explosive, any building . . . used in interstate or foreign commerce . . . .” The jury instructions defined “maliciously” as follows: You may not find the defendant guilty for acting mi stakenly or carelessly. In order to find defendant guilty you must find that he set the fire . . . intentionally or that he did so reck lessly. To do something intentionally is to do it deliberately. To do something recklessly is to do it with willful disregard of th e likelihood that damage or destruction would result.-8-

R. I, doc. 57, Instr. 33. The federal statute does not define “maliciously.” Looking to common law and the legislative history of § 844, several circu its have held the term includes acts done “intentionally or with willful disregard of the likelihood that damage or injury would result.” United States v. Gullett , 75 F.3d 941, 947-48 (4th Cir. 1996) (holding § 844(i) employs common law meaning of “maliciously” to include conduct done intentionally or with willful disregard of the likelihood of damage, finding support in legislative history); Mc Fadden v. United States , 814 F.2d 144, 145-46 (3d Cir. 1987) (holding § 844(f) [ enacted simultaneously with § 844(i)] incorporates common law meaning of “malic iously,” after examining legislative history); see United States v. Corona , 108 F.3d 565, 571 (5th Cir. 1997) (holding § 844(i) employs common law meaning of “maliciously” to include acts done in willful disregard of likelihoo d of damage); United States v.
Sweet , 985 F.2d 443, 445 (8th Cir. 1993) (holding term “ maliciously” included acts done intentionally or with willful disregard o f likelihood of damage in bomb threat statute, 18 U.S.C. § 35(b)); see also Heggy v. Heggy , 944 F.2d 1537, 1543 (10th Cir. 1991) (indicating a finding that a perso n acted “maliciously,” “oppressively,” or “wantonly” includes a finding of recklessness). Applying this definition, we hold the district court did not err in instructing the jury as to the required mens rea.-9-

Our decision in United States v. M.W. , 890 F.2d 239, 240-41 (10th Cir. 1989), in which we held the term “willfully and mal iciously” included knowing conduct, does not require a contrary result. Secti on 844(i) requires only that a defendant act maliciously, not willfully. As such, the provision of the Model Penal Code equating willful conduct with knowing co nduct does not apply. See Model Penal Code § 2.02(8), at 227 (1985). If anything, the absence of a willfulness requirement indicates that a defendant’ s conduct need not be knowing to be punishable.

III. Restitution Defendant argues the district court erred in orderi ng restitution without considering the statutory factors set out in 18 U.S .C. § 3664(a) or defendant’s ability to pay within a specified period of time. As no objection was raised, we review the court’s order for plain error. See United States v. Fisher , 132 F.3d 1327, 1330 (10th Cir. 1997). Prior to its amendment in 1996, § 3664(a) required the court to consider the financial resources of the defendant, the financial needs and earning ability of the defendant and his dependents, and any other appropr iate factor. Specific findings regarding a defendant’s ability to pay are not requ ired, so long as sufficient evidence was available to and considered by the sentencing court. See United
States v. Kunzman , 54 F.3d 1522, 1532 (10th Cir. 1995). Here, the p resentence-10-

report contained information regarding defendant’s financial status, his earning potential, his employment history, his education, and his lack of dependents. The district court clearly considered this information in adopting the report’s factual findings and in finding that defendant did not have the ability to pay a fine in addition to restitution. See R. VII at 19, 22-23. The court also specified the period of time within which restitution should be m ade, requiring payments out of defendant’s prison earnings while incarcerated, andout of his regular earnings during supervised release. We conclude the court a dequately considered the factors enumerated in § 3664(a), including defendant’s ability to pay within the specified period of time, and that no plain error o ccurred.

IV. Due Process Violation Finally, defendant argues that he suffered a due pr ocess violation due to the inordinate delay in having his appeal decided. In Harris v. Champion , 15 F.3d 1538, 1557 (10th Cir. 1994) (Harris II ), we held that inordinate delay in adjudicating a defendant’s direct criminal appeal c ould give rise to an independent due process violation. We identified f our factors to be considered: (1) the length of delay; (2) the reason for the del ay and whether it was justified; (3) whether defendant asserted his right to a timel y appeal; and (4) whether the delay prejudiced defendant in relation to specific interests sought to be protected by a timely appeal. See id. at 1559. In Harris v. Champion , 48 F.3d 1127, 1132-11-

(10th Cir. 1995) (Harris III ), we held that a rebuttable presumption of prejudi ce arises when the delay attributable to the government exceeds two years. Here, the delay attributable to the government exce eded two years. Even assuming the other three requirements have been ful filled, we conclude defendant has not suffered a due process violation, as his un successful direct appeal rebuts the presumption of prejudice arising from the delay . See Harris II , 15 F.3d at 1564-65 (explaining that defendant cannot show impa irment of ability to mount defense on retrial, constitutionally cognizable anx iety, or oppressive incarceration, if appeal meritless). We note that even if defendant had established a du e process violation, he would not have been entitled to invalidation of his conviction. Our cases have made clear that the remedy for a due process violat ion caused by inordinate delay is not immediate release from custody, but consider ation of defendant’s appeal. Issuance of a conditional writ in state habeas case s only ensures that the appeal will be heard, it does not invalidate the underlyin g conviction. Here, defendant has received his remedy, as we have reviewed the me rits of his appeal. The judgment of the United States District Court fo r the District of Utah is
AFFIRMED.