Submitted October 7, 2014.
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Appeal from United States District Court for the Western District of Missouri - Kansas City.
For United States of America, Plaintiff - Appellee (13-3130, 13-3131, 13-3132): Paul S. Becker, Assistant U.S. Attorney, Jess E. Michaelsen, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Kansas City, MO.
Rodney J. Anderson, Defendant - Appellant (13-3130), Pro se, Forrest City, AR.
For Rodney J. Anderson, Defendant - Appellant (13-3130): Cheryl Ann Pilate, MORGAN & PILATE, Kansas City, MO.
For Vincent F. Pisciotta, Defendant - Appellant (13-3131): Robin D. Fowler, BATH & EDMONDS, Overland Park, KS.
Vincent F. Pisciotta, Defendant - Appellant (13-3131), Pro se, Butner, NC.
For Mark A. Sorrentino, Defendant - Appellant (13-3132): N. Trey Pettlon, III, PETTLON & GINIE, Olathe, KS.
Mark A. Sorrentino, Defendant - Appellant (13-3132), Pro se, Forrest City, AR.
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
In this consolidated appeal, we consider the criminal prosecutions that were brought after a fire damaged the Hereford House, a well-known restaurant in downtown Kansas City. Following a jury trial, Rodney Anderson, Vincent Pisciotta, and Mark Sorrentino were convicted on numerous counts related to the fire. The district court sentenced Anderson to 180 months' imprisonment, Pisciotta to 240 months' imprisonment, and Sorrentino to 180 months' imprisonment. All three defendants now appeal. We affirm.
At about 12:44 a.m. on October 20, 2008, an explosion occurred inside the Hereford House. The resulting fire caused substantial damage. Based upon surveillance footage and security-system records from the restaurant, it soon became clear that this explosion and fire were no accident. Surveillance footage from less than an hour before the incident showed an individual, wearing dark clothes and a hat, enter the restaurant's front door. The individual proceeded to open a back entrance to the restaurant, where a van with two other individuals arrived. The individuals unloaded fourteen containers of gasoline, and two of the individuals placed them throughout the restaurant. An ignition device was set, and the three individuals quickly left, departing mere minutes before the explosion and fire.
When the suspects entered the restaurant that night, the security code of a former Hereford House employee was used to deactivate the security system. Between the employee's firing and the fire, this same security code had been used to deactivate the security system on two other occasions. It was first used on Saturday, September 27, 2008 at 6:47 a.m. Surveillance footage from that morning showed Rodney Anderson, a part owner of the Hereford House, unlock and enter the restaurant's front door. Although Anderson had his own security code, he did not use it on this particular morning. A short time later, another individual, clad in a dark jacket and hat, arrived. Anderson provided this individual with a key and watched as he entered and exited the restaurant. For the next fifty or so minutes, Anderson showed the individual around the restaurant, stopping to point out various things--including the back entrance that the arsonists would use less than a month later.
The former employee's security code was used again about a week before the fire, on October 12, 2008 at 11:22 p.m. Surveillance footage showed an individual, wearing dark clothes and a hat, unlock and enter the restaurant's front door. The individual made his way to the back entrance, where two other individuals were waiting. In what appears to be a practice run for the arson, all three individuals walked through the restaurant with flashlights, leaving shortly before midnight. A light-colored car can be seen driving away from the Hereford House at approximately this time.
Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ) investigated the explosion and fire. This investigation naturally focused on identifying the individuals in the surveillance videos and determining their roles in the
scheme. Anderson, who was depicted in the September 27 video, had been a part owner of the Hereford House since 1987. Over time, he had become the public face of the restaurant. As time passed, however, the restaurant struggled financially. In the ten months before the fire, Anderson infused roughly $380,000 into the business, which came from cash advances on personal and business credit cards, withdrawals from his mother's IRA and his 401(k), and a loan from his brother-in-law. And during 2007 and 2008, Anderson explored various options to improve the restaurant's prospects, ranging from moving it to another location to selling the building to a developer with a leaseback option. However, both options proved to be dead ends.
Anderson's statements before and after the fire convey the depth of the financial pressures he was facing. After a Hereford House employee helped to suppress a kitchen fire in mid-2007, Anderson responded that he would " just assume [sic] the place burn down." And in an email sent roughly one month before the fire, Anderson confided that " [t]hings are going down fast. We were unable to pay our payroll taxes of $50,000. Things are not getting any better. Sales are in the tank. Got me down." Furthermore, during a bankruptcy proceeding several months after the fire, Anderson explained, " All I can tell you is I was very idiotic in doing what I did, and hindsight is 20/20, but you know, there's 450 employees, you've been with them, a lot of them for twenty years, and you do crazy things. That's unfortunately who I am."
Anderson was not in Kansas City at the time of the fire. He returned on the morning of October 20, at which time he spoke with his employees, including James Stanislav. After learning that Stanislav had turned over the surveillance videos from the restaurant to ATF agents, Anderson asked, " So you've been in the cash room?" The cash room, however, contained an active surveillance monitor but only a dummy VCR. Stanislav informed Anderson that the actual video recording equipment was kept in the restaurant's supply closet. Anderson responded to this news with an " Oh," which Stanislav took to mean that Anderson was " surprised or somewhat surprised." Later that day, Anderson told Stanislav that " I might have brought this on us." Stanislav tried to follow up, but Anderson said he could not talk at that time.
The next day, October 21, ATF Special Agent Tony Donaldson interviewed Anderson and asked whether he suspected anyone of setting the fire. At first, Anderson denied knowing anything, but, after looking down and shaking his head, Anderson stated that someone had called him about one month earlier to discuss purchasing the restaurant. After the call, Anderson showed an individual--not the caller--around the restaurant. Anderson did not identify this person, merely describing him as a small, white male with a hat pulled down over his face.
ATF agents also spoke with Stanislav on October 21. With the agents present, Stanislav called the company that maintained the Hereford House's security system. It was at this point that Stanislav and the agents learned that a former employee's security code had been used to deactivate the restaurant's security system immediately before the fire. Shortly thereafter, Stanislav shared this information with Anderson, who became distraught and stated, " I think I brought this on us. I think this might have happened because of me." When Stanislav inquired further, Anderson told a different story than he had told Special Agent Donaldson. Anderson now explained that he had given
a " couple guys" a key and a security code so they could put " hot," i.e. stolen, stoves in the restaurant. Around this same time, Anderson called ATF Special Agent Richard Kight and told him a similar version of events.
Shortly after the fire, Stanislav began working with Travelers Insurance (" Travelers" ), which insured the restaurant for building and property losses as well as business-interruption losses. Anderson subsequently signed an advance-payment agreement, and Travelers sent an advance payment of $300,000 to the restaurant. Several months after the fire, the restaurant submitted two proofs of loss, one for $962,593 and the other for $1,459,505. Anderson signed documentation to support both of these claims.
Meanwhile, ATF's investigation into the fire continued. In February 2009, investigators publicly released a photograph of the individual who met with Anderson in the restaurant on September 27 and offered a reward for information about the suspect. In March 2009, ATF Special Agent Randy Roberts received information that led to Vincent Pisciotta. To monitor Pisciotta's movements, Special Agent Roberts installed a pole camera outside of Pisciotta's residence, which was in place from May 2009 until June 2011. In reviewing the footage from this camera, Special Agent Roberts became familiar with Pisciotta's appearance as well as the car that Pisciotta drove, a light tan Lincoln Continental. From this footage, Special Agent Roberts also observed Mark Sorrentino visit Pisciotta on several occasions.
As part of his investigation, Special Agent Roberts also interviewed Michael Balano, who knew Anderson, Pisciotta, and Sorrentino. Balano's telephone records showed a call with Sorrentino on September 26, the day before Anderson met with the suspect in the restaurant. Balano's telephone records also showed a call with Anderson on September 27, several hours after his meeting with the suspect. The day after Special Agent Roberts interviewed Balano, the pole camera outside of Pisciotta's residence captured a discussion between Pisciotta and Sorrentino. At one point during this conversation, Sorrentino lifted up the front of his shirt and showed his chest to Pisciotta. Pisciotta also looked down the back of Sorrentino's shirt.
After this lengthy investigation, a federal grand jury returned a superseding indictment charging Anderson, Pisciotta, and Sorrentino with conspiracy to commit arson and mail fraud, 18 U.S.C. § 371; arson, 18 U.S.C. § § 2, 844(i); mail fraud, 18 U.S.C. § § 2, 1341; and the use of fire to commit another felony, 18 U.S.C. § § 2, 844(h). During the ensuing jury trial, numerous witnesses identified Anderson in the September 27 surveillance video. Moreover, two of the Government's witnesses identified Pisciotta as the other individual in this video. The jury also learned that Sorrentino's telephone records showed that Sorrentino called Pisciotta approximately fifteen minutes before the September 27 meeting. Additionally, Special Agent Roberts identified both Pisciotta and Sorrentino in the Hereford House surveillance footage.
The Government also called Jenifer Sorrentino, who was married to Mark Sorrentino at the time of the fire. Ms. Sorrentino's identity had been the subject of a protective order, meaning that Anderson, Pisciotta, and Sorrentino did not learn that she was testifying until twenty-four hours before she took the stand. Ms. Sorrentino identified Pisciotta in the September 27 surveillance video, Sorrentino in the October 12 surveillance video, and Pisciotta and Sorrentino in the October 20 surveillance video. Ms. Sorrentino also testified about her recollections from the night of the fire.
October 19, Ms. Sorrentino explained, is her birthday, and she remembered having dinner with her then-husband on the night of the fire, October 19, 2008. They returned home from dinner around 9:00 or 9:30 p.m., and her husband left with Pisciotta afterward. Ms. Sorrentino told the jury that Mark Sorrentino returned home during the early morning hours of October 20 and " scream[ed]" for her to come downstairs. When she did, her husband was " beet red" and smelled like gasoline, a " profoundly unbelievable" smell. Ms. Sorrentino testified that ...