United States District Court, E.D. New York
June 8, 2005.
UNITED STATES OF AMERICA,
NAT SCHLESINGER, also known as "Naftule Schlesinger" and "Zvi Pollack," HERMAN NIEDERMAN, and GOODMARK INDUSTRIES, INC., Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This criminal prosecution initially arose out of a series of
fires that occurred from 1987 to 1999 at a clothing factory in
the Williamsburg section of Brooklyn, New York. The factory was
once a place where women's clothing was manufactured for sale to
high end retailers such as Neiman-Marcus, Saks Fifth Avenue, and
Bloomingdales. On New Year's Eve 1998, the factory was the scene
of a suspicious fire in which a firefighter temporarily became
lost deep inside the factory while battling the blaze. The
investigation that followed resulted in a thirty-four count
indictment against one of the owners of the business that
occupied the factory on charges of arson, conspiracy, insurance
fraud, creditor fraud, and money laundering.
On May 19, 2005, after a four week jury trial, the defendant
Nat Schlesinger ("Schlesinger" or the "Defendant") was convicted
of one count of arson and one count of use of fire to commit a
felony in connection with the December 31, 1998 fire (the "1998
New Year's Eve Fire"). In addition, Schlesinger was convicted of
one count of conspiracy to commit mail and wire fraud with regard
to insurance claims, thirteen counts of mail fraud, and two
counts of wire fraud on the insurance claims, and one count of
conspiracy to engage in monetary transactions with insurance
fraud proceeds in connection with the scheme to fraudulently inflate insurance
claims on the losses suffered as a result of the 1998 New Year's
Eve fire and four other fires that occurred at the factory. This
fraudulent scheme was carried out by the Defendant through the
use of bribes and false documents involving fires spanning a
period from 1991 to 1999.
Schlesinger was also convicted of one count of conspiracy, four
counts of mail fraud, and three counts of engaging in monetary
transactions with fraudulent proceeds resulting from a second
scheme to defraud the creditors of the clothing manufacturing
businesses that he controlled. This scheme involved the use of
nominees and shell corporations to carry out what was, in effect,
two self organized bankruptcies. The Defendant, who with his
brother Jack Schlesinger, owned and controlled both companies
involved, was able to transfer the assets and operations of a
financially unstable company to an ostensibly new company. As a
result, on two occasions the creditors of the businesses were
deprived of their machinery and equipment collateral and left
with judgment proof debtors.
At the conclusion of the trial the Defendant moved for a
judgment of acquittal pursuant to Rule 29 of the Federal Rules of
Criminal Procedure on the counts of arson and use of fire to
commit a felony. The Defendant contended that there was
insufficient evidence at trial to support a conviction of arson
and that the jury was improperly influenced by the evidence
presented concerning the other counts. The Defendant also argued that an out of court statement allegedly
related to the fire should have been excluded by the Court as
inadmissible hearsay. At the conclusion of the Government's case,
at the end of the entire case, and after the verdict the Court
reserved decision on these Rule 29 motions. For the reasons set
forth below, the motion is denied.
Along with his brother Jack, the Defendant Nat Schlesinger
owned and operated a place of business in the Williamsburg
section of Brooklyn in a building that occupied an entire city
block bordered by Wallabout Street, Kent Avenue, and Classon
Avenue. The place of business was identified at various times as:
(1) 48-76 Wallabout Street, Brooklyn, New York; (2) 50 Wallabout
Street, Brooklyn, New York; (3) 750 Kent Avenue, Brooklyn, New
York; and (4) 1 Classon Avenue, Brooklyn, New York ("the
Premises"). The two brothers operated a clothing manufacturing
company at this location beginning in the 1980's under the names
Pous Apparel, Inc., Private Brands of Delaware, Inc., and
Goodmark Industries, Inc. At the time of the 1998 New Year's Eve
Fire, the business was operating under the name Goodmark
The Premises was designed and equipped as a knit clothing
factory. The three story building contained all the processes
necessary to design and manufacture women's clothing. The first
floor contained storage for the yarn as well as knitting,
slicing, and framing machines. The second floor housed sewing and
dying machines to wash, dye, and cut the fabric. The second floor also contained
a design room and an office. That office was primarily occupied
by Nat and Jack Schlesinger. The third floor was the shipping
area where the clothes were stored, boxed, and eventually shipped
out to the customers. The clothes were stored on the third floor
by hanging them in aisles of racks or by storing them in boxes.
On Thursday, December 31, 1998, at about 10:30 p.m., a fire
broke out in the third floor shipping area. On that day the
factory had closed at 5:00 pm for the New Year's Eve holiday.
Normally the factory operated twenty four hours a day, six days a
week, and was only closed on Friday nights and Saturdays for
religious reasons. At the trial, the following witnesses
testified concerning the events leading up to the fire: (1) Jack
Schlesinger's son-in-law Israel Schwimmer, (2) the manager of the
third floor shipping department Abraham Weiser, and (3) Jack
Schlesinger's son Victor Schlesinger.
Israel Schwimmer worked at Goodmark for several years.
Schwimmer testified that on the day of or a day prior to the 1998
New Year's Eve fire he observed the Defendant and his son David
removing about four or five bags of papers from the Defendant's
file cabinets. Schwimmer testified that before he left on the day
of the fire he stopped in to see Jack Schlesinger in the main
office. While in the office he overheard a conversation between
Abraham Weiser and the Defendant. Weiser told the defendant that
he was going to lock up the third floor for the day. The
Defendant told Weiser that he would take care of locking up the third floor
that day. Israel Schwimmer left the building at about 5:00 pm
that day and Jack and Nat Schlesinger remained at the factory in
the second floor office.
Abraham Weiser had worked for the Defendant for approximately
twelve years until the clothing business closed in 2000. At the
time of the fire, Abraham Weiser was the supervisor of the
shipping department located on the third floor. He was
responsible for packing the manufactured garments in boxes to
send by UPS or in bags via their own truck. Weiser testified that
no other employees worked with him in the shipping area in
December 1998. One of his responsibilities was to secure the two
entrances to the third-floor shipping area and turn off the
lights by closing the circuit breaker each night before he left.
In fact, Abrahm Weiser testified that it was his practice to
secure both doors and turn off the circuit breaker at the end of
the day and that the only other people with keys to that floor
were Jack and Nat Schlesinger. However, Abraham Weiser did not
have keys to the exterior entrances of the factory.
Weiser testified that on December 31, 1998, he was the only
person on the third floor during the day. He testified that he
did not smoke; that smoking was not permitted in the building;
and he did not observe anyone smoking on the third floor on the
day of the fire. Weiser stated that he "wouldn't let them smoke"
because he "can't take the smoke." Tr. at 616. Weiser further
testified that there were no flammable liquids, thinners, dyes,
linseed oils or the smell of smoke or any other unusual odor before he left on December 31, 1998. Weiser stated that
occasionally a small cleaning gun was used on the third floor to
remove stains from the finished garments. Weiser testified that
on December 31, 1998, at about 4:00 p.m., he locked up the third
floor and turned off the circuit breaker providing electricity to
the third floor, locked both doors, and left the building.
Victor Schlesinger testified that he had maintained an office
in the Premises on the second floor. Victor stated that he would
typically visit the factory and his father Jack daily at the end
of the day. He stated that he did not have keys to the factory
but that the security guard would let him in. On the day of the
fire, Victor went to his father's office and found his father
with Nat. While in the office, Victor told his father that he
wanted to come back to the building later that evening to get
some work done. The Defendant overheard this request and told
Victor, "No, you are not coming back here." Tr. 1490. In
response, Jack told Victor that he should listen to Nat and not
return to the building. While this conversation was occurring,
Victor observed Abraham Weiser enter the office and tell the
Defendant and Jack that he was closing up the third floor. Victor
testified that the Defendant told Weiser, "No, don't close up the
third floor, I'm going to close it." Tr. 1491.
At about 10:30 pm on December 31, 1998, the New York City Fire
Department received reports of a fire at the Premises. Several
fire companies were dispatched and confirmed that there was
visible fire coming from the third floor of the factory. All of the entrances to the Premises were locked and secure when the
fire department arrived. The fire department forced entry into
the factory and ascended the stairs to the third floor. At the
top of the stairs they found that the entrance to the third floor
was also locked and had to break down that door. Inside the third
floor there was a smokey fire that was difficult to find. One of
the firefighters became lost while searching for the fire and
sent out a "mayday." The firefighter was quickly rescued and was
unharmed by the incident.
The fire was eventually found to be located underneath a
mezzanine that was constructed above the third floor. Under the
mezzanine, clothes were hung from rows of racks. Above the
mezzanine boxed goods were stored. Firefighters testified that in
order to extinguish the fire they had to proceed through each of
the rows of clothes under the mezzanine. Part of the mezzanine
eventually collapsed due to the fire. The investigation that
followed revealed that the main body of fire was located under
the mezzanine and that the boxes stored above the mezzanine were
not charred as much as the goods stored below.
The New York City Fire Marshal was requested to go to the scene
the night of the fire, but was unable to respond until the
following Monday due to the New Year's holiday. On Monday,
January 4, 1999, the Fire Marshal conducted a quick investigation
and determined the cause of the fire to be "not ascertained." The
Fire Marshal explained that due to lack of resources the
investigator was unable to search under the partially collapsed mezzanine, and thus labeled the
location of the fire as the third floor, origin unknown. After
the Fire Marshal left the owners were allowed back inside the
Israel Schwimmer and Victor Schlesinger both testified with
regard to the events that took place the Monday following the
fire, which was the first day the owners were allowed back into
the factory. Israel Schwimmer testified that he went to the main
office where he saw the defendant with Jack Schlesinger, Milton
Jacobi, Abraham Weiser, and the Defendant's son, Sam Schlesinger.
There Schwimmer overheard a conversation between Nat Schlesinger
and his son Sam Schlesinger, who was an insurance claims
adjuster. The Defendant told him to "put together a nice claim"
and to "put everything, new fabric, old fabric, whatever he could
put in the claim." Tr. at 508-09. Schwimmer also recalled a
conversation between the Defendant and his son David. This
testimony was admitted without objection:
Q And what was that conversation?
A A week after the fire they were discussing the
fire, the fire was good. A job well done.
Q Who said a job well done?
Q Who did he say that to?
A His father, Nat. Q What did the defendant, Nat Schlesinger, say in
A We will wait for the claim that is going to go
Q Where were you when they were having this
A I was in the hallway out of the office.
Q Where was the defendant and his son, David
A In the office.
Tr. at 510.
Victor Schlesinger testified that he observed substantial
damage in the building and described it as a "whole mess." Tr.
507, 1493. When Victor went to see his father Jack in the second
floor office that day, he found him with the Defendant. The
Defendant was telling Jack Schlesinger to go slow in starting up
the business because adjusters needed to come down and assess the
damage. While they were in the office, the Defendant's son David
Schlesinger entered the room and stated "job well done." Tr.
1500. Victor testified that the statement was made with bravado
as a "happy thing," despite the fact that he was standing in the
midst of the damage resulting from the fire. The Court notes that
the testimony was erroneously transcribed as "bragado [sic],
happy things," instead of "bravado." Tr. at 1500.
Israel Schwimmer also testified that he was in the second floor
office when David Schlesinger entered proclaiming "a job well
done." Tr. 510. Schwimmer testified that the Defendant replied to that statement by saying,
"[w]e will wait for the claim that is going to go through." Tr.
Testimony and evidence was offered by the Government showing
that the Defendant submitted a fraudulent insurance claim to
Atlantic Mutual Insurance Co. ("Atlantic Mutual"), with regard to
the 1998 New Year's Eve Fire. David Steinberg, a self-employed
sewing machine repairman, testified that in January 1999 he
assessed the damage to the machines at Goodmark Industries.
Steinberg stated that he either merely applied a coat of oil to
the machines or advised Schlesinger to do the same. For these
services, Steinberg faxed an estimate for $58,000 to the
Defendant. After the first estimate, the Defendant or his brother
called Steinberg and asked for a second estimate. The second
estimate was for $85,860, even though Steinberg stated that he
never did any work on the machines. In addition, the insurance
claim that the Defendant submitted contained a fraudulent
estimate from a company known as G.I.I. Engineering. This was a
fictitious company created by the Defendant.
Atlantic Mutual hired Thomas J. Russo, a cause and origin
expert, to investigate and ascertain the origin and cause of the
1998 New Year's Eve Fire. Russo determined that the fire began in
the shipping area on the third floor and that the entire building
was secured when the fire department arrived. In order to assist
his investigation, Russo hired James Pryor, an electrical
engineer, to review the electrical system in the area of origin.
The electrical engineer testified that he determined that there were no electrical faults which could have caused the fire.
Pryor testified that he inspected the circuit breaker panel which
provided service to the area of the fire, as well as the wiring
and lighting in the area of the fire. Pryor ruled out electrical
causes for this fire. Russo's on site inspection also revealed
that there were no appliances, candles, machinery, chemicals,
smoking material, or heating units in the area of origin.
Russo also conducted witness interviews of Abraham Weiser and
Jack Schlesinger. Weiser told him that he personally did not
smoke and he did not observe anyone smoking on the third floor on
December 31, 1998. He stated there were no candles, incense, oily
rags, or cleaning agents in the area. Weiser stated that he did
not notice anything unusual prior to departing and securing the
Jack Schlesinger told Russo that a delivery man may have been
on the third floor around 11:00 a.m. on December 31, 1998. He
also stated that he, the Defendant, and one other person were the
only people with keys to the entire building.
As a result of his investigation, Russo concluded that the fire
was intentionally set. Russo arrived at this conclusion by
excluding all electrical and accidental causes. He was able to
exclude cigarette smoking as a possible source of ignition for
the following reasons: (1) there was no evidence that personnel
smoked on the third floor; (2) there was no evidence of
cigarettes on the third floor; and (3) the time between the last
person exiting the building and the report of the fire was too
long to support the inference that a kindling cigarette could have started the fire.
Tr. 709. Russo also excluded an act of God after research
indicated that there were no earthquakes or thunderstorms. Russo
further excluded the possibility that the roof mounted heater
caused the fire upon examination of the unit, which showed no
evidence of flame impingement or any other heat source coming
from the unit. After excluding all accidental causes, Russo
concluded that the December 31, 1998 fire was intentionally set.
New York City Fire Marshal Bernard Santangelo testified that in
March 1999 he opened an investigation into the 1998 New Year's
Eve Fire. After commencing the investigation he attempted to
interview the Defendant. Fire Marshal Santangelo stated that the
Defendant repeatedly changed the date of the interview and
delayed his appointment on several occasions. When the Defendant
finally met with Fire Marshal Santangelo, the Defendant tape
recorded the meeting without Fire Marshal Santangelo's knowledge.
In the interview, Schlesinger told Fire Marshal Santangelo that
he was the "Manager of financial operations" and held no official
position in the company or on the board of directors. The
Defendant also refused to answer several questions and seemed
irritated. The Defendant responded to several questions by asking
questions back such as "who are you?" The Defendant told Fire
Marshal Santangelo that he had a complete set of keys to the
building and left the building around 6 or 7 p.m. the night of
the fire. When asked about the claim history of the building, the Defendant stated that he could only recall one
other fire which occurred in 1991 when the factory was operating
as Private Brands. The Defendant denied any involvement in
Fire Marshal Santangelo's investigation also considered the
fraudulent estimate of repair drafted by the fictitious company
G.I.I. Engineering. He also included the Russo report and the
report from James Pryor the electrical expert. Fire Marshal
Santangelo interviewed the firefighters that responded to the
scene as well as witnesses who were at the Defendant's building,
including Abraham Weiser, Victor Schlesinger, and Israel
Fire Marshal Santangelo also testified that on August 3, 1999,
another fire broke out at the building. This fire was also later
determined to be an arson because it had four distinct and
separate points of origin.
Based upon all the interviews, reports, photographs, and his
investigation, Fire Marshal Santangelo also concluded that the
1998 New Year's Eve Fire was an incendiary fire ignited by the
intentional application of an open flame. Fire Marshal Santangelo
also concluded that the only persons who had keys to the entire
building on that night were Jack and Nat Schlesinger and that the
buildings were secure upon arrival of the fire department.
Retired New York City Fire Department Lieutenant Peter Casey
testified that upon their arrival all doors to the building were
locked, and that with great difficulty they forced open the
doors. The Defendant presented evidence of a bitter family dispute
between him and the survivors of his brother Jack, who passed
away in 2001, including Jack's son Victor Schlesinger. The
Defendant recalled Abraham Weiser to the stand to refute the
allegations made by Victor Schlesinger and Israel Schwimmer.
Weiser testified that Nat Schlesinger never told him not to lock
the third floor the night of the fire, in fact, he did not even
speak to him before he left. In addition, he stated that Victor
Schlesinger had an office in the building at one point in time
but in December 1998 that office had been converted into another
office. Weiser also testified that the guard that Victor stated
had let him in at night when the factory was locked had died in
1995 and that no replacement was ever hired. Weiser also stated
that in addition to finished garments there were many old
religious books that the Defendant had stored on the third floor.
Further, he stated that he approached some of the witnesses that
testified at the trial about lying on the stand and "they just
say they want to fix Nat." Tr. at 2451, 2458.
After three days of deliberation, the jury returned a verdict
of guilty on thirty of thirty-one counts, including both
arson-related counts. After the trial, the Defendant moved
pursuant to Fed.R. Crim. Proc. 29 for a judgment of acquittal
arguing that the verdict was based upon mere speculation and
surmise. The Defendant further moved to strike, as inadmissable
hearsay, the testimony of Victor Schlesinger as to the statement
"job well done" made by David Schlesinger in the days following
the fire. The Defendant also contends that notwithstanding the admissiblity
of that statement, there was no proof that the Defendant aided,
abetted, or participated in setting the 1998 New Year's Eve Fire.
A. The Standard of Review
The standard of review on a motion for judgment of acquittal is
well-settled. In the Second Circuit it has been repeatedly stated
that a defendant challenging a conviction on the basis of
insufficient evidence bears a heavy burden. United States v.
Thomas, 377 F.3d 232, 237 (2d Cir. 2004); United States v.
Tocco, 135 F.3d 116, 123 (2d Cir. 1998); United States v.
Russo, 74 F.3d 1383, 1395 (2d Cir. 1996). This is because the
evidence must be viewed in the light most favorable to the
government and all permissible inferences must be drawn in its
favor. See United States v. Hernandez, 85 F.3d 1023, 1030 (2d
Cir. 1996); see also United States v. Casamento,
887 F.2d 1141, 1156 (2d Cir. 1989). The court also must defer to the
jury's resolution of witness credibility and, where there is
conflicting testimony, to its selection between competing
inferences. Tocco, 135 F.3d at 123; see also United States
v. Pelaes, 790 F.2d 254, 259 (2d Cir. 1986). A conviction must
be sustained if "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed.2d 560 (1979); United States v. Desimone,
119 F.3d 217, 223 (2d Cir. 1997). Further, the elements of the crimes charged may be proved entirely by circumstantial
evidence. See United States v. Sureff, 15 F.3d 225, 228 (2d
Cir. 1994). Also, the court must consider the evidence in its
totality, and not in isolation. United States v. Rosenthal,
9 F.3d 1016, 1024 (2d Cir. 1993).
"The court must be careful to avoid usurping the role of the
jury." United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.
1999). "If the court concludes that either of the two results, a
reasonable doubt or no reasonable doubt, is fairly possible, the
court must let the jury decide the matter." United States v.
Autuori, 212 F.3d 105, 114 (2d Cir. 2000). With these principles
in mind, the Court must uphold the jury's verdict if it finds
that "any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson,
443 U.S. at 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560.
B. The Evidentiary Issue
The Defendant argues that the statement "job well done" made by
the Defendant's son after observing the fire for the first time
is inadmissible hearsay. "Hearsay is evidence of a declarant's
out-of-court statement to prove the truth of what is asserted in
the statement." United States v. Forrester, 60 F.3d 52, 59 (2d
Cir. 1995) (quoting United States v. Reyes, 18 F.3d 65, 69 (2d
Cir. 1994)); Fed R. Evid. 801(c). As a general rule, hearsay is
inadmissible unless an exception applies. Thus, the threshold question in this case is whether the statement at issue
is hearsay, and if so, whether an exception applies.
A statement is not hearsay, under Fed.R. Evid. 801(d)(2)(E),
if "[t]he statement is offered against a party and is . . . a
statement by a co-conspirator of a party during the course and in
furtherance of the conspiracy." Id. "In order to admit
out-of-court statements pursuant to Rule 801(d)(2)(E), the trial
court must find that the government has established by a
preponderance of the evidence that there was a conspiracy, that
both the declarant and the party against whom the statements are
offered were members of the conspiracy, and that the statements
were made in furtherance of the conspiracy." United States v.
Daly, 842 F.2d 1380, 1386 (2d Cir. 1988); see also United
States v. Alameh, 341 F.3d 167, 176 (2d Cir. 2003); United
States v. Maldonado-Rivera, 922 F.2d 934, 958 (2d Cir. 1990). In
making this determination, the court may take into account the
proffered out-of-court statement if that statement is
sufficiently reliable in light of the evidence. Bourjaily v.
United States, 483 U.S. 171, 107 S. Ct. 2775, 2781-82,
97 L. Ed. 2d 144 (1987).
In 1997, following the Supreme Court's decision in Bourjaily
concerning co-conspirator statements, Fed.R. Evid 801(d)(2)(E)
was amended to clarify whether the declarant's statement alone
can be sufficient to establish a conspiracy between the declarant
and the defendant. The rule as amended states that "[t]he
contents of the statement shall be considered but are not alone
sufficient to establish the declarant's authority . . . or the existence of the conspiracy and the
participation therein of the declarant and the party against whom
the statement is offered. . . ." Fed.R. Evid. 801(D)(2). The
advisory committee noted that a court must consider the
circumstances surrounding the statement, in addition to the
proffered statement, when making its evidentiary determination.
The circumstances may include factors "such as the identity of
the speaker, the context in which the statement was made, or
evidence corroborating the contents of the statement."
Fed.R.Evid. R 801 advisory committee's note (1997 Amendment) (citing
Daly, 842 F.2d at 1386)).
The clarification in the amendment is clearly set forth in the
authoritative text, Weissenberger's Federal Evidence:
Under the amended Rule, a court can consider the
contents of a conspirator's statement in making the
preliminary determination as to whether a conspiracy
exists between the declarant and the party against
whom the statement is offered. This amendment thus
reflects the holding of the Supreme Court in
Bourjaily. However, the amendment also clarifies
[that] the statement "are not alone sufficient" to
establish the conspiracy. The trial court should
consider circumstances surrounding the statement,
such as the identity of the speaker and evidence
corroborating the contents of the statement, in
addition to the contents of the statement itself, in
determining whether the proponent has proven the
existence of a conspiracy by a preponderance of the
evidence, as required under Rule 104(a).
Glen Weissenberger & James J. Duane, Weissenberger's Federal
Evidence § 801.21 (4th ed. 2001). With these principles in mind, in order to admit the statement
"job well done," the Court must find by a preponderance of the
evidence: (1) that a conspiracy existed that included the
defendant and the declarant; (2) that the statement was made
during the course of and in furtherance of that conspiracy; and
(3) that there is some independent corroborating evidence of the
defendant's participation in the conspiracy. United States v.
Desena, 260 F.3d 150
, 157-58 (2d Cir. 2001). "The conspiracy
between the declarant and the defendant need not be identical to
any conspiracy that is specifically charged in the indictment."
United States v. Gigante, 166 F.3d 75
, 82 (2d Cir. 1999).
For a statement to be "in furtherance of the conspiracy," it
must be more than a mere "narrative description by one
co-conspirator of the acts of another." United States v. SKW
Metals & Alloys, Inc., 195 F.3d 83, 88 (2d Cir. 1999) (citations
and quotation marks omitted). "Statements in furtherance of a
conspiracy `prompt the listener . . . to respond in a way that
promotes or facilitates the carrying out of a criminal activity.'
"Desena, 260 F.3d at 157-58 (quoting Maldonado-Rivera,
922 F.2d at 958). "[T]he statements need not be commands, but are
admissible if they `provide reassurance, or seek to induce a
coconspirator's assistance, or serve to foster trust and
cohesiveness, or inform each other as to the progress or status
of the conspiracy.'" SKW Metals & Alloys, Inc.,
195 F.3d at 88 (quoting Maldonado-Rivera, 922 F.2d at 959) (emphasis
added). Here, the Court finds that a conspiracy to commit arson and
submit a fraudulent insurance claim existed between the Defendant
and his son David Schlesinger by a preponderance of the evidence.
The statement "job well done" was made by a close family member
the Defendant's son David Schlesinger shortly after observing
the damage the factory sustained after the fire. Israel Schwimmer
corroborated the utterance of the statement and testified that
the Defendant responded by saying "[w]e will wait for the claim
that is going to go through." Although Schwimmer testified that
the statement was made "a week after the fire," the statement and
location where it was overheard are identical to the testimony of
Victor Schlesinger so as to find it corroborating. In addition,
the statement appears to have been made in furtherance of the
conspiracy in that it "inform[ed] [the Defendant] as to the
progress or status of the conspiracy." SKW Metals & Alloys,
Inc., 195 F.3d at 88. His evident happiness standing in a place
of destruction after the fire is revealing, apparently declaring
the successful culmination of the subject of the conspiracy. As
such, the Court finds, by a preponderance of the evidence, that
the statement "job well done" along with the circumstances in
which it was made satisfy the requirements to be admitted into
evidence under Rule 801(d)(2)(E).
In addition, the Court finds that the statement "job well done"
was admissible under Fed.R. Evid. 803(1) as a present sense
impression exception to the hearsay rule. According to the Rule,
a present sense impression is a statement "describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter."
Fed.R. Evid. 803(1). "Rule 803(1) provides a vehicle for the
admission of out-of-court statements concerning an event or
condition where the statement describes or explains the event."
Weissenberger's Federal Evidence § 803.1. In this case, clearly
the words "job well done" both described and explained in a
happy vein the destruction caused by the fire. "Such statements
are considered to be trustworthy because the [contemporaneous
report] of the event and its description limits the possibility
for intentional deception or failure of memory." United States
v. Jones, 299 F.3d 103, 112 (2d Cir. 2002) (citing United
States v. Brewer, 36 F.3d 266, 272 (2d Cir. 1994)); see, e.g.,
United States v. Dolan, 120 F.3d 856, 869 (8th Cir. 1997)
(upholding the admission of a statement under the present sense
impression in which the declarant stated that he "had [the
defendant] by the balls" shortly after having met with the
Here, the Government has established the following facts by a
preponderance of the evidence: (1) that David Schlesinger
observed firsthand the condition of the factory as he made his
way to the second floor, (2) that the statement was made
immediately after he observed the condition of the factory, (3)
that the statement described what he observed firsthand through
his senses, and (4) that he was also describing the successful
culmination of the subject of the conspiracy. See, e.g., Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004). As such the
statement is admissible under the present sense impression
exception to the hearsay rule.
C. The Arson Conviction
In this case, Schlesinger was convicted of one count of arson
under 18 U.S.C. § 844(i) and one count of use of fire to commit a
felony under 18 U.S.C. § 844(h)(1). Arson is prohibited under the
terms of 18 U.S.C. § 844(i), which states in pertinent part:
Whoever maliciously damages or destroys, or attempts
to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other real or
personal property used in interstate or foreign
commerce or in any activity affecting interstate or
foreign commerce shall be imprisoned for not less
than 5 years and not more than 20 years, fined under
this title, or both.
18 U.S.C.A. § 844
Congress originally enacted 18 U.S.C. § 844(i) as part of Title
XI of the Organized Crime Control Act of 1970, Pub.L. 91-452, §
1102, 84 Stat. 952, "because of the need to curb the use,
transportation, and possession of explosives." Russell v. United
States, 471 U.S. 858, 860, n. 5, 105 S. Ct. 2455,
85 L. Ed.2d 829 (1985) (citation omitted). The word "fire," which was not
originally included in § 844(i), was introduced by statutory
amendment in 1982. See Jones v. United States, 529 U.S. 848,
852-53, 120 S. Ct. 1904, 1909 (2000). In its current form, §
844(i) provides for the punishment of anyone who attempts to
damage or destroy any building used in interstate commerce by means of fire. United States v. Joyner,
201 F.3d 61, 78 (2d Cir. 2000).
To maintain a prosecution under 18 U.S.C. § 844(i), the
government must prove that the defendant: (1) maliciously; (2)
damages or destroys, or attempts to damage or destroy a building;
(3) by means of fire or explosive; and (4) the building is used
in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce. See United States v. Gullett,
75 F.3d 941, 947 (4th Cir. 1996); United States v. Nguyen,
28 F.3d 477, 480-81 (5th Cir. 1994); United States v. Triplett,
922 F.2d 1174, 1177 (5th Cir. 1991).
The element of "malice," "is satisfied if the defendant acted
intentionally or with willful disregard of the likelihood that
damage or injury would result from his or her acts." Gullett,
75 F.3d at 948. In addition, the government must show that the
arson in question destroyed or damaged property either `used in'
or `used in any activity affecting' interstate commerce."
Joyner, 201 F.3d 61, 78 (quoting Tocco, 135 F.3d at 124).
Under the provisions of 18 U.S.C. § 844(h)(1), a person who
uses fire or explosives to commit a felony, such as mail or wire
fraud, is subject to an additional mandatory, and consecutive,
sentence of five to fifteen years. Id.; United States v.
Marji, 158 F.3d 60, 64 (2d Cir. 1998). To sustain a conviction
under § 844(h)(1), the government must prove that the defendant
(1) used fire (2) to commit a "felony which may be prosecuted in a court of the United States."
18 U.S.C. § 844(h)(1). In order to find the evidence sufficient for a
conviction under section 844(h)(1), the underlying felony as well
as the arson must be analyzed for sufficiency. However, since
this motion attacks only the arson and not the other convictions,
the only question the Court faces at this juncture is whether the
evidence is sufficient to establish that Schlesinger committed or
aided and abetted the commission of arson under § 844(i). See,
e.g., Nguyen, 28 F.3d at 481. Accordingly, the § 844(h)(1)
conviction for use of fire to commit a felony will stand or fall
with the arson count.
In United States v. Yoakam,116 F. 3d 1346, 1350 (10th Cir.
1997), the United States Court of Appeals for the Tenth Circuit
reversed a conviction for arson on the basis of insufficient
evidence. In that case the government sought to prosecute the
twenty-five percent shareholder of a supply company after the
business was suspiciously burned to the ground. The fire broke
out on the same night that the defendant was to finalize an
agreement to purchase the remainder of the company from the other
shareholders. The defendant was the last person to leave the
business that night. Three fire experts testified that the cause
of the fire was arson. However, the court found that there was
insufficient evidence linking the arson to the defendant. In
particular, the court noted that there was no evidence to support
the government's theory that the defendant was motivated to
commit arson by pressure to enter into an unfavorable business
arrangement. Id. The only evidence that the court found that linked the defendant to the fire was that he was the last person
to leave the building before the fire broke out. The court held,
"In our view, mere presence cannot establish beyond a reasonable
doubt that [the defendant] committed the arson." Id.
In this case the cumulative circumstantial evidence the
Government presented at trial was sufficient for a reasonable
juror to conclude, beyond a reasonable doubt, that the Defendant
Schlesinger committed both arson and use of fire to commit a
felony. Unlike the Yoakam case, here there is more evidence
than mere presence. Despite the lack of direct evidence, the
Court finds that the totality of the circumstantial evidence is
sufficient to sustain the verdict. Crimes may be proven entirely
by circumstantial evidence, so long as the jury could fairly have
found beyond a reasonable doubt that the defendant engaged in the
charged criminal conduct. See United States v. Sureff,
15 F.3d 225, 228 (2d Cir. 1994) (observing that a prosecution for
murder may succeed without a body or other evidence of the means
of death). Here, the circumstantial evidence the Government
offered tended to show that Schlesinger had the motive, means,
and opportunity to commit the crime, as well as consciousness of
There was ample evidence that the fire was intentionally set.
The Government presented both the cause and origin expert and the
New York City Fire Marshal that investigated the fire. Both
investigators concluded after separate independent investigations
that the fire was intentionally set and that the building was
locked tight when the firefighters arrived. The time, location, and the
absence of accidental or natural sources of ignition for the fire
provided ample evidence that it was incendiary, even though there
was no direct evidence that an accelerant was used to ignite the
There was also testimony sufficient to permit a reasonable
juror to infer that the Defendant had prior knowledge of the
contemplated arson. Israel Schwimmer observed the Defendant and
his son removing four or five bags of papers from the Defendant's
files in the second floor office the day of or the day prior to
the fire. In addition, Schwimmer testified that the Defendant
told Abraham Weiser not to lock the third floor that night.
Further, Victor Schlesinger testified that he was instructed by
the Defendant not to return to the building that night.
The evidence showed that the Defendant had an opportunity and a
means to commit the crime. The Defendant was the last person to
leave the factory that night. After a thorough investigation,
Fire Marshal Santangelo concluded that the Defendant and his
brother Jack were the only two individuals who had access to the
outside entrances and the third floor. Undisputed testimony from
Fire Marshal Santangelo and the firefighters at the fire scene
established that all of the outside entrances as well as the
entrance to the third floor shipping area were locked upon
arrival of the first fire companies. There was no evidence that a
perpetrator broke into the factory or could have gained entry
through the locked doors. Based on this evidence, a reasonable
juror could conclude, beyond a reasonable doubt, that the
Defendant was one of only two people who had the access to start the fire in the third
floor of the tightly locked factory.
Also, there was evidence adduced that the Defendant had a
motive to commit the crime. After the fire the Defendant told his
son Sam Schlesinger to put together a "nice claim" that included
all the old and new fabric. The fire had been confined to the
third floor where there was no valuable machinery to damage. The
Defendant submitted two fraudulent estimates in the insurance
claim made to Atlantic Mutual with regard to machines that were
never damaged. In addition, the Defendant told his brother Jack
to take it slow in restarting the business because insurance
adjusters needed to come and evaluate the damage. All of this
evidence demonstrates a motive to commit arson and to steal money
from the insurance company.
Testimony from both Israel Schwimmer and Victor Schlesinger
showed that the Defendant impliedly acknowledged the criminal act
and substantiated the motive for the arson. On the first day that
the Defendant and his employees were able to return to the
factory, two witnesses overheard the Defendants son David exclaim
"job well done." Schwimmer testified that the Defendant replied,
"[w]e will wait for the claim that is going to go through." This
exchange was described as joyful and occurred shortly after the
fire and while the declarants were under an area of extensive
damage. A reasonable juror could conclude from these statements,
beyond a reasonable doubt, that the Defendant had knowledge and
involvement in aiding and abetting or causing the fire.
Finally, there was evidence that the Defendant conducted
himself in such a manner after the fire so that a reasonable
juror could infer a consciousness of guilt. The Second Circuit
has held that a jury may infer consciousness of guilt from, for
example, evidence of flight after a crime. See United States
v. Salameh, 152 F.3d 88, 157 (2d Cir. 1998); United States v.
Sanchez, 790 F.2d 245, 252 (2d Cir. 1986). Although flight has
been described as the "consummate act of evasion," nervous or
evasive behavior is also relevant suspicious conduct from which a
juror could draw a reasonable inference of consciousness of
guilt. See Illinois v. Wardlow, 528 U.S. 119, 124-25,
120 S. Ct. 673; 145 L. Ed. 2d 570 (2000) (discussing flight in the
context of reasonable suspicion); Pinkey v. Keane,
737 F. Supp. 187, 197-98 (E.D.N.Y. 1990) (finding that evasive responses to
police questions after the crime demonstrated consciousness of
Here, although it may not rise to the level of consciousness of
guilt that flight represents, the jury had the right to consider
evidence that Schlesinger acted in a suspicious manner when
questioned about the fire by Fire Marshal Santangelo. After
repeatedly delaying his interview with Fire Marshal Santangelo,
the Defendant surreptitiously tape recorded the interview. His
responses were described as evasive and accusatory. The Defendant
denied involvement in Private Brands and stated that he only recalled one other fire in the building in 1991.
Moreover, his description of his involvement in Goodmark
Industries as a "Manager of Financial Operations" was misleading.
In fact, the evidence showed that the Defendant and his brother
owned and controlled every aspect of Goodmark Industries and
Private Brands, and that there were three previous fires in the
factory. The jury was entitled to infer consciousness of guilt
from the facts surrounding the surreptitious recording, the
evasive behavior, and the misleading statements.
The Defendant attempted to discredit the witnesses and present
alternative explanations. However, the jury was entitled to
credit the testimony of the Government's witnesses and experts.
The Court "must defer to the jury's resolution of the weight of
the evidence and the credibility of the witnesses." United
States v. Daly, 842 F.2d 1380, 1389 (2d Cir. 1988) (internal
quotation marks omitted).
In sum, all of the evidence presented was more than sufficient,
when taken together, to establish, beyond a reasonable doubt,
that Schlesinger either participated in or aided and abetted in
the arson involving the 1998 New Year's Eve Fire in his building
in order to submit a fraudulent insurance claim.
Having reviewed the submissions of the parties, it is hereby
ORDERED, that the Defendants' motion pursuant to Rule
29(c)(2) for a judgment of acquittal as to counts twenty and
twenty-one is DENIED. SO ORDERED.
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