* Chief Judge of the Eastern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-4864

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross Appellant,

VERSUS

VICTOR M. PAZOS,

Defendant-Appellant,

Cross Appellee.

Appeals from the United States District Court

for the Eastern District of Texas

(June 15, 1994)

Before REYNALDO G. GARZA and DeMOSS, Circuit Judges, PARKER *

,

District Judge.

REYNALDO G. GARZA, Circuit Judge:

Victor M. Pazos appeals his conviction for arson and four

counts of mail fraud. The Government cross-appeals the district

court's application of the Sentencing Guidelines. Finding no

error, we AFFIRM.2 I. PROCEDURAL HISTORY

On March 5, 1993, Victor M. Pazos was convicted in the United

States District Court for the Eastern District of Texas, Beaumont

Div ision for Arson in violation of 18 U.S.C. § 844(i) and four

counts of Mail Fraud in violation of 18 U .S.C. § 1341. At the

sentence hearing Pazos had no objections to the pre-s entence

report. The Government, however, objected because it wanted the

district court to increase the base offense level fro m 20 to 24.

The district court overruled the Government's objecti ons and

sentenced Pazos to imprisonment for a term of 36 months as to each

of the five counts, with the sentencing to run concurrently. Pazos

timely appealed to this court with regard to sufficiency of the

eviden ce on all five counts. The Government cross-appeals with

regard to the district court's application of the Sentencing

Guidelines.

II. FACTS

Victor Pazos and his wife Cheri Pazos, and her father, Leroy

Bernard, formed a corporation to open Bernard's Cajun Restaurant.

Leroy Bernard, acting on behalf of the restaurant, lea sed the

premises for the restaurant from Jack Brookner. The terms of the

lease cal led for the restaurant to pay $2,000 per month in lease

payments, which were due on the first of each month and 4% of the

previous months g ross sales, which were due on the tenth of each

month. Leroy Bernard purchased insurance for the restaurant and

obtained content insurance of $55,000 and loss of earnings

insurance of $30,000. In January of 1991, Victor Pazos increased3

the content insurance to $75,000 and the loss of earnings insurance

to $60,000.

The Pazos and Leroy Bernard lived in a two-bedroom apartment

located approximately 150 feet from the restaurant. Leroy Bernard

would ope n up the restaurant in the mornings and the Pazos would

close it each night. Leroy Bernard, Pazos and his wife, and Jack

Brookner, each had a set of keys to the restaurant. An extra set

of keys was kept in the restaurant's safe. The building that

housed the restaurant was equipped with a security system and it

was customary to set the alarm when closing the restaurant for the

night. Each of the Pazos and Leroy Bernard knew the security code

to the burglar alarm system.

The building that housed the restaurant had a door on the west

side of the building that was used primarily as an emergency exit

door. The west exit door was customarily kept unlocked during

business hours and locked at night when the restaurant was closed.

On one prior occasion, Leroy Bernard had found the west exit door

unlocked when he opened the restaurant.

Bernard's Cajun Restaurant opened for business on November 12,

1990. The restaurant sustained a net loss for each of the three

months it w as open for business. In November of 1990 the

restaurant sustained a net loss of $15,118, in December of 1990 it

sustained a loss of $4,901, and in January of 1991 it sustained a

loss of $4,865. Victor Pazos' bank accounts at the time of the

fire reflected balances of less than $6,000. Payroll of almost

$6,000 had accrued, and was to be issued a couple of days after the4

fire. Jack Brookner testified that the restaurant's lease payments

and percentage of sales payments were constantly late. He also

testified that utility bills were delinquent.

January 27, 1991 was Super Bowl Sunday and the Pazos went to

the resta urant around 1:20 p.m. There was a beer promotion sale

and Victor Pazos took the television set from the apartment to the

restaurant to watch the Super Bowl Game. Leroy Bernard was also in

the restaurant that afternoon. Sometime around 8:00 p.m., the

Montondons, friends of the Pazos, appeared at the restaurant. The

Montondons and the Pa zos decided to go to dinner. Victor Pazos

invited his father-in-law, but he declined.

After dinner with the Montondons, the Pazos returned to their

apartm ent. After returning to their apartment at approximately

10:00 p.m., Victor Pazos went to the restaurant and shortly

thereafter returned with the television set. Sometime around 11:10

p.m. Victor Pazos again left his apartment and went to Kroger's

Food store to purchase some Alka-Seltzer for his upset stomach.

On January 28, 1991, at approximately 12:22 a.m., a fire at

Bernard's Cajun Restaurant was re ported to the Beaumont Fire

Department. The fire officials discovered paper trails throughout

the restaurant. The fire fighters noticed what appeared to be

flammable liquid on the paper trails and on the c arpet. They

estimated that the fire had been burning 20 to 30 minutes prior to

their arrival at the scene. The fire was most severe toward the

back of the building. The fire alarm box had been opened and the

battery removed so as to make the fire alarm inoperable. A wire5

from the alarm box was hanging as though someone may have tampered

with it.

Bradley Pennisson, Captain with the Beaumont Fire Department,

inspected the building and he too observed paper trails throughout

the restaurant. He also observed that the stairway leading to the

attic had been pulled down and a separate fire had been started in

the attic. He determined that several separate fires had been set

throughout the restaurant. Captain Pennisson further observed that

the west exit door to the restaurant had a doub le cylinder dead

bolt that was in an unlocked position. It was his opinion that the

exit door was unlocked at the time of the fire. There were no

other signs of entry into the bu ilding other than the west door

being unlocked.

Captain Pennisson spoke with Victor Pazos at the scene of the

fire and Pazos advised him that to his knowledge he was the last

person in the building an d that he had locked up the building.

Captain Pennisson asked Pazos if he had any problems with anybody

and Pazos responded that he had problems with two former employees.

While speaking with Pazos, Captain Penn isson did not detect any

odor of any gas or petroleum type products on Pazos.

Chief Fire Marshal Jack Maddox took a sworn statement from

Victor Pazos immediately after the fire. Pazos stated that he had

not noticed anything missing out of the restaurant. Later it was

proven that Pazos was aware that $2,000 of the restaurant's

proceeds were actually missing at the time he made the written

statement. Pazos' statement also stated that he started the6

business with money given to him from his father. Later it was

proven that Pazos actually opened the business with insurance money

he received from prev ious insurance claims. The statement

indicated that the restaurant was profitable, when in fact, it was

losing money. The statement also indicated that after Pazos

returned to his apartment at 10:00 p.m., he stayed there until the

fire was discovered. It was later shown that Pazos left his

apartment after 10:00 p.m. to purchase Alka-Seltzer from a nearby

grocery store.

Leroy Bernard testified at trial. Bernard testified that he

provided the expertis e with his restaurant experience and that

Victor Pazos provided all of the capital investment to start up the

res taurant. He also testified that Pazos was unsuccessful at

getting loans from banks. He further testified that it was Pazos'

idea to increase the insurance on the restaurant.

Robert Davis also testified at trial. He owned the security

service company which installed and monitored the burglar alarm at

th e restaurant. Computer records were introduced at trial that

showed that during the week before the fire, the alarm was set each

night and disarmed the following morning. However, on January 27,

the night of the fire, the records showed that the alarm was never

activated. According to Davis, there was no reason to believe the

computer malfunctioned.

George Haynes, an insuranc e salesman, also testified. He

testified that shortly af ter January first, Pazos called him and

inquired about the status of the content and loss of earnings7

ins urance on the restaurant. Pazos also wanted to know how the

content and loss of earnings coverage would apply in the event of

a fire. Thereafter, Pazos called the insurance company and

requested an increase on the content and loss of earnings coverage.

Finally, Jack Morman testified. Morman was the fire insurance

adjuster on the restaurant fire. Morman received mailed letters

from a public adj uster hired by Pazos in Pazos' claim on damages

from the fire. The form letters, which were introduced into

evidence and made the basis for counts II through V of the

indictment, dealt with matters concerning the adjusting of the

insurance claim by Pazos. These letters directly affected the way

Morman handled the adjusting of the claim.

III. DISCUSSION

Pazos claims that there is insufficient evide nce to sustain

his conviction fo r arson and for the four counts of mail fraud.

The Government cross-appeals claiming the district court erred in

applying a base offense level of 20, rather than 24 under section

2K1.4 of the Sentencing Guidelines.

A. Is there sufficient evidence to sustain the conviction

for arson?

Pazos argues that there is insufficient eviden ce to sustain

his conviction for arson. He claims that he was never shown to

have had t he opportunity to commit arson in this case. The

evidence shows that Pazos went to the restaurant around 10:00 p.m.

to retrieve a television set and returned to his apartment within

a short period of time. Pazos claims, however, that the evidence

shows that someone spent time laying many paper trails throughout8

the restauran t and in the attic. The evidence also shows that

Pazos left his apartment around 11:15 p.m. to purchase Alka-Seltzer

and returned a round 11:45 p.m. The Government's exhibit showed

that Pazos purchased the Alka-Seltzer at 11:34 p.m. Pazos claims

that the time to travel to the grocery store and back to his

apartment does not leave ample time to set up the massive

preparation necessary for the fire.

Pazos also argues that there was no evidence that he possessed

any unique knowledge of flammable materials. He claims that the

record is devoid of any evidence that he was in possession of any

materials that could have been the flammable substance used to

start the fire. Pazos claims that at least three different

investors were willing to help him out financially. Finally, Pazos

claims that the Gov ernment at best raises speculations and

conjecture as to his guilt.

In deciding the sufficie ncy of the evidence, we determine

whether, viewing the evidence and the inferences that may be drawn

from it in the light most favorable to the verdict, a rational jury

could have found the essential elements of the offense beyond a

reasonable doubt. United States v. Pruneda-Gonzalez

, 953 F.2d 190,

193 (5th Cir.), cert. denied

,

___ U.S.

___, 112 S.Ct. 2952 (1992).

To convict Pazos of violating 18 U.S.C. § 844(i), the

Government must prove beyond a reasonable that he: (1) maliciously

damaged or destroyed a building or personal property, (2) by means

of fire, and (3) the building or personal property was being used

in activity affecting interstate commerce. S ee

, United States v.9

Triplett

, 922 F.2d 1174, 1177 (5th Cir.), cert denied

, ___U.S.___,

111 S.Ct. 2245 (1991).

At trial, the jury heard extensiv e evidence of the

restaurant's financial difficulties. The jury also heard testimony

that Pazos inquired about what effects a fire would have on his

insurance recovery, and then increased his insurance coverage. The

jury further heard that Pazos would be the beneficiary of $135,000

in insurance proceeds if the insurance company paid damages because

of the fire loss. Finally, the jury learned that the restaurant

operated its business by purchasi ng seafood which crossed in

interstate commerce.

The evidence showed that Pazos had the opportunity to prepare

and set the fire on at least two occasions after the business

closed and before the fire fighters arrived at the scene. The

evidence also linked Pazos to the fire due to his possession of a

key to unlock the bac k door where the fire was the most serious.

The only people besides Pazos who had a key to the back door were

the building owner and Pazos' wife and father-in-law. There is no

q uestion that Pazos' wife and father-in-law stayed in the Pazos'

apartment after 10:00 p.m. The testimony of the various fire

investigators, who pronounced the fire as being intentionally set,

was not disputed.

Pazos testified that when he locked up on the nig ht of the

fire, the back door was secured and the alarm set. Pazos also

testified that he later went back to the restaurant, unlocked the

f ront door, disarmed the alarm, retrieved the televisio n

,10

reactivated the alarm, and locked the front door as he left. This

t estimony was in direct conflict with the alarm records which

showed that the alarm was not activated on the night of the fire,

and the fact that, according to the fire investigators, the back

door was unlocked.

Based on the evidence outlined above, a reasonable jury could

determine beyond a reasonable doubt that Pazos committed arson.

Our review of the record, therefore, indicates that sufficient

evidence exists to affirm Pazos' conviction for arson.

B. Is there sufficient evidence to sustain the conviction on

four counts of mail fraud?

Pazos contends that the evidenc e is insufficient to sustain

his conviction on four counts of mail fraud. Government exhibit

#14 was a letter from Alex N. Sill Company directed to Morgan, the

fire insurance adjuster, advising him that they had been employed

as a public adjuster by Pazos in his insurance claim. Government

exhibit #15 w as a letter from Alex N. Sill Company directed to

Morgan requesting a $5,000 advance to assist the insured for out of

pocket expenses. Government exhibits #16 and #17 were letters from

Alex N. Sill Company directed to Morgan requesting extensions of

time to file a proof of loss.

Pazos claims th at the use of the mails was not an integral

part of the scheme to defraud t he insurance company and the four

letters to Morgan were not an integral part of the execution of the

scheme as required in United States v. Blackenship , 746 F.2d 233,

241-42 (5th Cir. 1984). Pazos further claims that since he never

filed a claim for payment under the restaurant's insurance policy,11

there cannot be a scheme to defraud.

To determine the sufficiency of the evidence, we use the same

standard that was outlined in section III.B of this opinion.

In order to convict P azos of mail fraud under 18 U.S.C. §

1341, the Government must establish: (1) a scheme to defraud, (2)

which involves a use of the mails, (3) and that the mails were used

for the purpose of executing the scheme. United States v. Kent

, 608

F.2d 542, 545 (5th Cir. 1979), cert. denied sub. nom.

, Patrick

Petroleum Corp. of Michigan v. U.S.

, 446 U.S. 9 36 (1980) . Each

separate use of the mails to further a scheme to defraud is a

separate offense. United States v . McClelland , 868 F.2d 704, 706

(5th Cir. 1989). The Government need not prove that the accused

used the mails himself or actually intended that the mails be used.

Id

. at 707. The requisite statutory purpose exists if the alleged

scheme's completion could be found to have been dependent in some

way upon the information and documents which passed th rough the

mails. Kent

, 608 F.2d at 546. It requires that the item mailed was

an integral part of the execution of the scheme so that the use of

the mails was i n this way incident to an essential part of the

scheme. Id

.

All the letters concerned the disposi tion of fire insurance

proceeds of Bernard's Cajun Restaurant. These actions coupled with

Pazos' efforts in increasin g the content and loss of earnings

insur ance shortly before the fire show that the mailings were

essential to Pazos achiev ing his goal of receiving the insurance

proceeds for the fire he intentionally set.12

Based on all the evidence, a reasonable jur y could conclude

beyond a reasonable doubt tha t there was a scheme to defraud the

insurance company, that the mail was involved as a vehicle to carry

out the scheme, and that the letters furthered Pazos' scheme to

collect his fraudulent insurance claim.

Our review of the record, therefore, indicates that sufficient

evidence exists to affirm Pazos' conviction for mail fraud.

C. Did the district court err in refusin g to apply a base

offense level of 24 under the Sentencing Guidelines?

At Pazos' sentencing, the presentence report prepared by the

probation officer recommended an offense level of 20 pursuant to

U.S.S.G. § 2K1.4(a)(2)(B). The Government objected to this

recommendation. The Government argued that since the fire fighters

were placed in substantial risk of serious bodily injury or death

in fighting the blaze, and since the jury's verdict reflected a

determination that the defendant in tentionally set the fire, the

base offense level should be 24 pursuant to U.S.S.G. § 2K1.4(a)(1).

The district court ruled that the probation officer was correct and

sentenced Pazos according to a base offense level of 20.

The Government argues that the district court erred in

refusing to apply a base offense level of 24 under the Sentencing

Guidelines.

We accept a district court's findings of fact unless they are

clearly erroneous. U.S. v. Henderson

, 19 F.3d 917, 926 (5th Cir.

1994). Application of the facts to the Sentencing Guidelines,

however, is a question of law subject to d e novo review. Un ited

States v. Shell , 972 F.2d 548, 550 (5th Cir. 1992).13

Sentencing Guidelines section 2K1.4(a)(1) states that a base

offense level of 24 applies:

if the offense (A) created a substantial risk of death or

serious bodily injury to any person other than a

participant in the offe nse, and that risk was created

knowingly; . . . .

The application not e s specifically state that creating a

sub stantial risk of death or serious bodily injury includes

creating that risk to fire fighters.

Sentencing Guidelines section 2K1.4(a)(2)(B) states that a

base offense level of 20 applies if the offense:

involved the dest ruction or attempted destruction of a

structure other than a dwelling; . . . .

At sentencing, the Government put forth Bradley Pennisson, an

investigator with the Beaumont Fire Department. Pennisson

testified that he thought that the firemen who fought the blaze

were substantially endangered. The district court overruled the

Government's objectio n and specifically found that the probation

officer had correctly calculated the base offense level as 20. By

doing so, the district court made an implied finding that the fire

did not create a substantial risk of death or serious bodily

injury. The Government has failed to show why this finding is

clearly erroneous. See Henderson , 19 F.3d at 926.

We, therefore, affi rm the district court with regard to its

ruling that a base offense level of 20 applies to this case.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.