In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2879

United States of America,

Plaintiff-Appellee,

v.

Anthony Gallagher,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois, Urbana Division.
No. 98-CR-20074--Michael P. McCuskey, Judge.


Argued April 3, 2000--Decided August 7, 2000



      Before Flaum, Chief Judge, and Bauer and Williams,
Circuit Judges.

      Flaum, Chief Judge. Defendant Anthony Gallagher
was convicted of arson in violation of 18 U.S.C.
sec. 844(i). The defendant now appeals that
conviction, arguing that the district court erred
in concluding that the government presented
evidence sufficient to establish that the barn he
was accused of maliciously damaging by fire was
then being used in interstate commerce or in an
activity affecting interstate commerce. The
defendant also appeals his sentence, contending
that the district court erroneously departed
upward from the applicable Sentencing Guidelines
range based on its conclusion that the
defendant’s criminal history category did not
adequately reflect the seriousness of his past
crimes. For the reasons stated herein, we affirm
both the defendant’s conviction and sentence.

I.   Background

      For many years, Frank and Aline Herriott owned
and operated a Welsh pony business on Green Top
Farm near Seymour, Illinois. The business enjoyed
a national reputation for producing top-quality
Welsh ponies. In the early 1980s, the Herriotts
began corresponding with the defendant in
response to his inquiries about purchasing pony
carts and other equipment. At the time, and
unknown to the Herriotts, the defendant was
serving a prison sentence for a rape conviction
in Pennsylvania.

      In 1986, Mr. Herriott died, and Mrs. Herriott
continued to operate the Welsh pony business with
the assistance of her daughter, Marjorie Plotner,
and Marjorie’s husband, Gene Plotner. Mrs.
Herriott also continued corresponding with the
defendant. In 1990, Mrs. Herriott married the
defendant while he was on parole in Pennsylvania.
Mrs. Herriott then arranged to have the
defendant’s parole transferred to Illinois so
that the two could live together on Green Top
Farm.

      After the defendant arrived at Green Top Farm,
he and Mrs. Herriott began selling her assets. In
total, the couple sold approximately forty
ponies, and the remainder of the herd went into
decline due to a lack of care. In addition, Mrs.
Herriott sold several homes that had been in the
family for generations. Mrs. Plotner believed
that the defendant convinced her mother to sell
the homes and the ponies and was keeping the
money for himself, and that the defendant was
seeing another woman. When Mrs. Plotner informed
her mother of these suspicions, Mrs. Herriott
refused to believe her. Eventually, the
relationship between Mrs. Herriott and Mrs.
Plotner deteriorated to the point that the
Plotners were no longer welcome at Green Top
Farm.

      In the fall of 1991, Mrs. Plotner called the
local sheriff’s office and requested that a
deputy be sent to Green Top Farm to check on her
mother. Mrs. Plotner testified that she requested
this visit because she was concerned about her
mother’s well-being in light of the defendant’s
criminal history and the age difference between
the two (approximately 40 years). Two sheriff’s
deputies were sent to Green Top Farm, where Mrs.
Herriott informed them that she was fine and
instructed them not to return.

      Shortly thereafter, Mrs. Plotner received a
telephone call from her mother asking Mrs.
Plotner to meet her at Green Top Farm. When Mrs.
Plotner arrived at the farm, her mother met her
on the front steps. According to Mrs. Plotner,
Mrs. Herriott stated: "If you guys don’t leave me
alone, you’re going to get me killed." The
defendant observed this conversation from a
distance, and Mrs. Plotner stated that it was her
belief that her mother was afraid of the
defendant.

      In November 1991, the defendant left Green Top
Farm and moved in with Irene Duffy, the real
estate agent Mrs. Herriott had employed to sell
her houses. Later that month, the defendant
returned to Green Top Farm with Duffy’s first
cousin, Wes Becker. During this visit Mrs.
Herriott gave the defendant money, but informed
him that it was the last payment he would
receive. According to Becker, the defendant
called Mrs. Herriott an "ugly bitch" as they were
driving away.

      On December 2, 1991, Mrs. Plotner telephoned
her mother and left a message on her answering
machine. At around 3:30 p.m. that same day, the
Plotners went to Green Top Farm to do some
chores. They noticed that Mrs. Herriott’s car was
in the driveway and assumed that the defendant
had taken her somewhere. At about 4:30 or 4:45
p.m., the Plotners finished their chores at Green
Top Farm and returned home. Mrs. Plotner again
attempted to contact her mother by telephone, but
was unsuccessful.

      At about 6:00 p.m. that day, the defendant
telephoned the Plotners and asked if Mrs. Plotner
had seen her mother. Mrs. Plotner testified that
this phone call was highly unusual given the
mutual dislike that existed between the Plotners
and the defendant. Mrs. Plotner told the
defendant that she had not seen her mother that
day. Mr. and Mrs. Plotner then immediately drove
to Mrs. Herriott’s home.

      When the Plotners arrived at Green Top Farm,
they used their key to open a locked door on the
east side of the house. Mrs. Plotner noticed that
the alarm system had not been turned on. Mrs.
Plotner also saw that immediately inside the door
to the house was an antique straight-back chair
perched on top of a stool. Mrs. Plotner stated
that she found this unusual because her mother
had once broken her shoulder and would not climb
on anything in order to reach something on a high
shelf. Mrs. Plotner testified that she could
think of no reason why the chair would be in that
position.

      When they proceeded into the house, Mr. and
Mrs. Plotner found Mrs. Herriott lying
unconscious on the couch in the living room. Mrs.
Herriott was wearing a bathrobe with nothing on
underneath. Mrs. Plotner testified that she
regarded this as strange because her mother
usually wore her flannel nightgown and never
lounged around the house in a bathrobe. Mrs.
Plotner also testified that she found it unusual
that Mrs. Herriott was not wearing her glasses,
and that her clothes were strewn across a rocking
chair in the bedroom. The paramedics were called,
and Mrs. Herriott was taken to a hospital. She
remained in a coma until she died on December 19,
1991.
      During the period in which Mrs. Herriott was in
a coma, Mrs. Plotner was appointed her temporary
guardian. Mrs. Plotner also hired a private
detective to investigate her mother’s death. On
December 10, 1991, the detective located Mrs.
Herriott’s glasses in the driveway of the house
next to the garage. One of the lenses was found
with the glasses, and the other was found
approximately one hundred feet away. Becker
testified that when he accompanied the defendant
to Green Top Farm on December 21, 1991 to pick up
some of the defendant’s clothes, the defendant
located the spot on the driveway where Mrs.
Herriott’s glasses were found and said, "This is
where they found her glasses."

      Before her death, Mrs. Herriott transferred most
of her real property to a revocable trust. Under
the terms of that trust, Green Top Farm was
conveyed to Mrs. Plotner subject to a lifetime
leasehold to the defendant. The defendant’s
leasehold was to terminate if the defendant
remarried or failed to maintain the farm. Mrs.
Herriott also left the defendant a half interest
in her pony herd, with the remaining half going
to Mrs. Plotner. The will provided that if Mrs.
Plotner and the defendant could not agree on the
disposition of the animals, the herd would be
sold and the profits divided equally between the
two.

      On January 3, 1992, a complex of four barns on
Green Top Farm burned down, killing five ponies
and destroying approximately four thousand bales
of straw. The barns were uninsured. On December
18, 1998, the defendant was charged in a one-
count indictment with arson, alleging that the
defendant maliciously damaged by fire the barns
located at Green Top Farm.

      The defendant was convicted of arson by a jury
on March 26, 1999. Prior to his sentencing on
that conviction, the government filed a notice of
its intent to ask for an upward departure from
the otherwise applicable Sentencing Guidelines
range based upon its belief that this range did
not adequately reflect the defendant’s past
criminal history. Among other things, the
government sought a departure based on its
contention that the defendant murdered Mrs.
Herriott.

      During the sentencing hearing, a forensic
pathologist testified that Mrs. Herriott died
from a blow to the head, and not from a fall or
other accidental forces. The district court
concluded from this testimony that Mrs. Herriott
was murdered, and noted that the defendant had
both the motive and opportunity to kill her.
After considering the evidence surrounding the
alleged crime against the backdrop of the
defendant’s motive and opportunity, the district
court determined, by a preponderance of the
evidence, that the defendant murdered Mrs.
Herriott. The district court then departed upward
three criminal history points based on this
finding, and the defendant was sentenced to 120
months in prison. The defendant now appeals.

II. Analysis
A. Sufficiency of the Evidence

      The defendant first argues that the government
failed to meet its burden of proof as to the
interstate commerce element of the arson crime of
which he was charged and convicted. See United
States v. Zabic, 745 F.2d 464, 474 (7th Cir.
1984) (stating that the interstate commerce
element of arson must be established beyond a
reasonable doubt). The federal arson statute
makes it illegal for an individual to
"maliciously damage[ ] or destroy[ ], or attempt[
] to damage or destroy, by means of fire . . .
any building, vehicle, or other real or personal
property used in interstate . . . commerce or in
any activity affecting interstate . . . commerce
. . . ." 18 U.S.C. sec. 844(i). According to the
defendant, the evidence the government presented
at trial was insufficient to establish beyond a
reasonable doubt that the barns he was accused of
maliciously damaging by fire were used in
interstate commerce or in an activity affecting
interstate commerce.

      In support of his insufficiency of the evidence
argument, the defendant contends that the horse
business at Green Top Farm ended, and the barns
were removed from interstate commerce, upon the
death of Mrs. Herriott. The defendant first notes
that given his lifetime leasehold interest in the
farm, the defendant had the exclusive right to
use the barns in question and had no intention of
continuing the pony business or of using those
barns in interstate commerce. The defendant also
argues that the disposition of the pony herd was
left to him and Mrs. Plotner and, because the two
were never going to agree on the proper way of
managing the ponies, the pony herd was going to
be sold with the profits split between the two
parties. The defendant contends that because he
did not intend to use the barn in interstate
commerce during the course of his leasehold, and
because the pony business was going to be
dissolved absent an unlikely agreement to the
contrary between himself and Mrs. Plotner, Mrs
Herriott’s death effectively removed the barns
from interstate commerce.

      The defendant faces a heavy burden in
attempting to demonstrate that the government did
not meet its burden of proof as to the interstate
commerce element of his arson conviction. "We
review questions of sufficiency of the evidence
’in the light most favorable to the government
and ask whether any rational trier of fact could
find the essential elements of the crime beyond
a reasonable doubt.’" United States v.
Richardson, 208 F.3d 626, 631 (7th Cir. 2000)
(quoting United States v. Rogers, 89 F.3d 1326,
1334 (7th Cir. 1996)). "Only when the record
contains no evidence, regardless of how it is
weighed, from which the jury could find guilt
beyond a reasonable doubt, may an appellate court
overturn the verdict." United States v. Lundy,
809 F.2d 392, 396 (7th Cir. 1987) (quoting
Brandom v. United States, 431 F.2d 1391, 1400
(7th Cir. 1970)). Moreover, in order to satisfy
the interstate commerce element of 18 U.S.C. sec.
844(i), the government need only establish that
the arson in question had a minimal effect on
interstate commerce. See United States v. Hicks,
106 F.3d 187, 189 (7th Cir. 1997); United States
v. Martin, 63 F.3d 1422, 1426 (7th Cir. 1995);
United States v. Menzer, 29 F.3d 1223, 1230 (7th
Cir. 1994). Because of the deferential review of
sufficiency of the evidence claims and the low
threshold for establishing the interstate
commerce element, the defendant must demonstrate
that no rational trier of fact could have found
beyond a reasonable doubt that the barns the
defendant was accused of maliciously damaging by
fire had even a minimal effect on interstate
commerce.

      After a review of the record, we conclude that
the government proved a sufficient nexus between
the defendant’s arson and interstate commerce.
Although the defendant may be correct that the
pony business was unlikely to continue as a
viable commercial entity under the stewardship of
the defendant or Mrs. Plotner, that assertion
does not establish that the barns were removed
from interstate commerce upon the death of Mrs.
Herriott. This is not a case, as the defendant
suggests, where the barns had only a past
connection to interstate commerce. See, e.g.,
United States v. Gaydos, 108 F.3d 505 (3d Cir.
1997) (finding no connection to interstate
commerce where a rental property had been removed
from the rental market and where there was no
intent to resume renting the property). Rather,
even if we assume that the business was likely to
be dissolved following Mrs. Herriott’s death, the
key point is that it had not been dissolved at
the time the arson was committed and consequently
there was no cessation of business activity. See
United States v. Wing, 104 F.3d 986 (7th Cir.
1997) (finding a sufficient connection to
interstate commerce where the property destroyed
received out-of-state shipments of supplies);
Martin, 63 F.3d at 1427-28 (holding that the
destruction of a rental property that was
presently unoccupied but still available for rent
satisfied the interstate commerce element of the
arson statute). After the fire, much of the pony
herd was sold at a public auction. In addition,
at the time the defendant set fire to the barns
in question, those barns sheltered breeding
stallions that were also to be sold. In short, at
the time the defendant set fire to the barns,
those barns were still actively employed in the
conduct of a pony business that was national in
scope. See Jones v. United States, 120 S.Ct.
1904, 1909-10 (2000) (stating that the central
inquiry under the federal arson statute is
whether the damaged property is being actively
employed in a commercial enterprise). In these
circumstances, we cannot conclude that no
rational trier of fact could have determined that
the government established beyond a reasonable
doubt the interstate commerce element of the
defendant’s arson.

B.   The Sentencing Departure

      The defendant next challenges the district
court’s decision to depart upward from the
Sentencing Guidelines range otherwise applicable
to the defendant’s conduct. During the
defendant’s sentencing hearing, the district
court determined that the government proved by a
preponderance of the evidence that the defendant
committed past uncharged crimes, including the
murder of Mrs. Herriott. The district court
therefore departed upward from the applicable
Sentencing Guidelines range so that the sentence
would adequately reflect these past criminal
activities. The defendant appeals this departure,
arguing that the district court erred in finding
that the government proved by a preponderance of
the evidence that the defendant murdered Mrs.
Herriott.

      The Sentencing Guidelines permit a district
court to depart upward from the otherwise
applicable sentencing range "[i]f reliable
information indicates that the criminal history
category does not adequately reflect the
seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will
commit other crimes . . . ." U.S.S.G. sec. 4A1.3;
see also 18 U.S.C. sec. 3661 ("No limitation
shall be placed on the information concerning the
background, character, and conduct of a person
convicted of an offense which a court of the
United States may receive and consider for the
purpose of imposing an appropriate sentence.").
In order to justify such a departure, the
government must prove the alleged past criminal
conduct on which the departure is based by a
preponderance of the evidence. See United States
v. Klund, 37 F.3d 1249, 1252 (7th Cir. 1994). Our
review of the district court’s decision to depart
upward is deferential, see United States v.
Fonner, 920 F.2d 1330, 1332 (7th Cir. 1990)
(citing United States v. Marshall, 908 F.2d 1312,
1326 (7th Cir. 1990) (en banc)), and "’we give
considerable leeway to a district court’s
determination of the criminal history category
that most accurately reflects the defendant’s
true criminal history.’" United States v. Brown,
999 F.2d 1150, 1153 (7th Cir. 1993) (quoting
United States v. Schweihs, 971 F.2d 1302, 1319
(7th Cir. 1992)).

      In this case, the district court departed
upward from a criminal history category of V to
a criminal history category of VI, and from an
offense level of 22 to an offense level of 24,
based on its conclusion that the defendant
committed past uncharged crimes, including the
murder of Mrs. Herriott. In concluding that the
defendant murdered Mrs. Herriott, the district
court first found that the defendant had both the
motive and the opportunity to commit the crime.
As to motive, the district court stated that the
defendant had two separate reasons for murdering
Mrs. Herriott: to profit financially from the
disposition of Mrs. Herriott’s estate and to
prevent Mrs. Herriott from revealing the fraud
that he perpetrated against her. In regard to
opportunity, the district court found that the
defendant could not account for his whereabouts
during the evening of December 1, 1991 and the
morning of December 2, 1991, the time during
which Mrs. Herriott was allegedly attacked. In
light of the defendant’s multiple motives for
murdering Mrs. Herriott, and in consideration of
the fact that the defendant was the only suspect
with the opportunity to commit the crime, the
district court determined that the physical and
testimonial evidence linking the defendant to the
crime was sufficient to prove by a preponderance
of the evidence that he committed the murder.

      The physical and testimonial evidence introduced
at trial regarding Mrs. Herriott’s death included
testimony from a forensic pathologist indicating
that the cause of Mrs. Herriott’s death was a
blow to the head. The district court also
considered evidence that the door was locked when
Mrs. Plotner arrived at the house and that the
alarm was turned off, and it concluded that the
murder was committed by someone who, like the
defendant, possessed a key to the house. The
district court noted the unusual state of the
house, and the appearance that someone had staged
the scene to look like an accident, and found
that these efforts indicated that the individual
involved wished to cover up the murder as if he
expected to be a suspect. Lastly, the district
court weighed the testimony of Wes Becker and
found that the defendant had independent
knowledge of the location at which Mrs.
Herriott’s glasses were found in the driveway.
This evidence, combined with the defendant’s
motive and opportunity, was enough to convince
the district court that the government proved by
a preponderance of the evidence that the
defendant murdered Mrs. Herriott.

      In reviewing the district court’s decision to
depart upward, we "overturn a factual finding
only if we are firmly convinced that a mistake
was made." United States v. Spears, 159 F.3d
1081, 1088 (7th Cir. 1998). Because we do not
find any clear error in the district court’s
findings of fact, we consider only whether the
district court abused its discretion in finding
by a preponderance of the evidence that the
defendant murdered Mrs. Herriott. See United
States v. Trigg, 119 F.3d 493, 502 (7th Cir.
1997) (stating that departures in the criminal
history category are generally reviewed for an
abuse of discretion). After a review of the
factual record, we agree with the district court
that reliable evidence indicates that Mrs.
Herriott was murdered, and that the defendant had
both clear motive and opportunity to commit the
crime. Furthermore, the physical evidence
indicates that the crime was committed by someone
close to Mrs. Herriott, and the defendant’s
knowledge of the location at which the glasses
were found links him to the crime. Against this
factual backdrop, and in light of our deferential
standard of review, we cannot conclude that the
district court erred in departing upward from the
otherwise applicable sentencing range based on
its conclusion that the defendant’s criminal
history category did not adequately reflect his
past crimes.

III.   Conclusion

      We hold that the government introduced
sufficient evidence to establish the interstate
commerce element of the defendant’s crime of
arson and to prove by a preponderance of the
evidence that the defendant murdered Mrs.
Herriott. We therefore AFFIRM both the defendant’s
conviction and sentence.
