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United States v. Schropp

United States Court of Appeals, Eighth Circuit

July 22, 2016

United States of America, Plaintiff- Appellee
Thomas Schropp, Defendant-Appellant

          Submitted: February 12, 2016

         Appeal from United States District Court for the District of Nebraska - Omaha.

          Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, [1] District Judge.

          SMITH, Circuit Judge.

         A jury convicted Thomas Schropp as a principal on the following six counts: arson of a building used in interstate commerce, in violation of 18 U.S.C. § 844(i) ("Count I"); mail fraud, in violation of 18 U.S.C. § 1341 ("Count II"); wire fraud, in violation of 18 U.S.C. § 1343 ("Counts III–V"); and arson in connection with a federal felony, in violation of 18 U.S.C. § 844(h) ("Count VI"). The district court[2]sentenced Schropp to five terms of imprisonment of 70 months on Counts I–V, to run concurrently, and one term of imprisonment of 120 months on Count VI, to run consecutive to the 70-month terms. Schropp appeals, arguing that (1) his sentence violates the Double Jeopardy Clause, (2) the district court erred in admitting certain photographs into evidence, (3) the district court abused its discretion in denying his motion for a new trial, and (4) there is insufficient evidence to support the verdict. We affirm.

         I. Background

         Given Schropp's conviction by a jury, we recount the evidence in the light most favorable to the verdict. See United States v. Mshihiri, 816 F.3d 997, 1004 (8th Cir. 2016). Schropp and his uncle co-owned PK Manufacturing Corporation (PKM). Schropp ran the day-to-day operations of PKM, and his uncle's role in the business was financial. PKM manufactured lawn and garden sprayers, trailers, and other equipment associated with spraying. On November 20, 2008, a fire heavily damaged PKM's manufacturing plant in Nashville, Nebraska. In the wake of the fire, Schropp filed an insurance claim for his policy limit of nearly $4, 000, 000 with Sentry Insurance.[3] Sentry advanced Schropp $240, 000 on his claim[4] but denied his claim after further investigation.

         Law enforcement suspected arson. Eventually, William Richards admitted to starting the fire and, as part of his plea agreement, assisted law enforcement in the investigation of the fire.[5] At Schropp's trial, Richards testified that he met Schropp through Richards's sister, Cindy Mesenbrink. Schropp and Mesenbrink were acquainted through their drug use. Mesenbrink testified that in late summer 2008, Schropp asked her to arrange a meeting between Richards and himself to discuss a painting project at PKM. The meeting took place at PKM in September 2008. Richards, Mesenbrink, and Richards's girlfriend, Julie Winkelbauer, all drove to the plant, but only Richards went inside PKM to talk to Schropp. According to Richards, Schropp showed him around the plant and told him, "I will pay you 20, 000 to burn it. I'll give you ten two weeks after the fire and another ten two weeks after that."[6] After Richards expressed doubt that the building would burn, Schropp assured him that it would and instructed him on how to enter the plant. Schropp told Richards that he would be able to gain entry through the door on the north side of the building, which was never locked. When Richards left, he had not agreed to burn PKM's plant.

         Schropp denies that this meeting or conversation ever took place. Instead, Schropp testified that he met Richards when Richards tried to sell him tools. Schropp described a second meeting with Richards that took place after the fire. At the second meeting, Schropp claims the two discussed PKM purchasing forklifts. Schropp explained that the potential sale resulted in numerous phone calls between himself and Richards as well as an in-person meeting at a local Walmart. At no time, Schropp maintains, did he ask Richards to burn PKM's plant.

         In November 2008, Richards and Winkelbauer were arrested on theft charges. Richards was held in jail and needed $2, 000 in order to post bond. Mesenbrink contacted Schropp and requested bond money on Richards's behalf. Schropp agreed, and he gave Winkelbauer $2, 000 in cash. Schropp's bank records reflected a $2, 000 cash withdrawal on the day Winkelbauer posted bond for Richards.

         Richards testified that Schropp's payment of his bond motivated him to set the fire as Schropp had requested. Two days after Richards posted bond and was released from jail, he and Winkelbauer drove to PKM. Early in the morning on November 20, Richards jumped a chainlink fence, entered through the unlocked door that Schropp had disclosed to him, and ignited the fire that heavily damaged the building. Richards described the fence as six feet tall with barbed wire around most of the top but not where he crossed. Over Schropp's objection, the court admitted photographs showing the fence as Richards described.[7] Richards also explained that after he started two separate fires in the plant-in the office and where cardboard boxes were stacked-he opened an overhead door to feed the fire with oxygen.[8]

         At trial, Winkelbauer admitted to lying about her involvement in the fire when law enforcement initially confronted her:

[T]here were a lot of lies told at the beginning, and for whatever reason I was scared and I didn't give complete answers but the bottom line is this: On that night I drove Billy [Richards] down there. He set the fire which I saw. I drove him to the Mormon Bridge. I drove him home. We met Tom at the car wash. Tom gave us money, gave-put the money in his hand but it was our money.
And he never paid us the other $10, 000. But Billy definitely set that fire. I know that for sure because I saw the flames when we drove away. That's the truth.

         Two weeks after the fire, Richards and Winkelbauer met Schropp. According to Richards, Schropp gave him $8, 000 in cash and said, "Wow, you really burnt that place. Good job." In late 2008 to early 2009, Winkelbauer called Schropp and sent him text messages requesting the rest of the money that Schropp had originally promised. Schropp finally agreed to meet Richards and Winkelbauer at a Walmart. Richards, Winkelbauer, and a friend all drove together to meet Schropp at the Walmart, and surveillance cameras in the parking lot captured the meeting. Although only Richards got out of the car to talk to Schropp, Winkelbauer and the friend could hear Schropp yelling at Richards. Schropp was upset that Winkelbauer was trying to contact him and told Richards that if Winkelbauer "keeps calling me and leaving me messages like that, we're going to get caught." When Richards asked for the rest of the money, Schropp told him that there would "be no more money" because the fire was being investigated.

         Later, Schropp asked Richards to meet with him at his apartment. When Richards arrived, Schropp told him that they needed to have an explanation for how they knew each other. Richards testified that Schropp's forklift story originated at this meeting. Schropp was still concerned about the investigation and refused to give Richards any more money until the investigation was over. In December 2011, Richards ...

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