Submitted: February 12, 2016
from United States District Court for the District of
Nebraska - Omaha.
SMITH and COLLOTON, Circuit Judges, and GRITZNER,  District
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
courtsentenced 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.
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. Sentry advanced Schropp $240, 000 on
his claim but denied his claim after further
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. 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." 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
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
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.
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. 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.
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.
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
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