                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2302
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri
Christopher Schnapp,                    *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 5, 2002

                                 Filed: March 13, 2003
                                  ___________

Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF,1
      District Judge.
                           ___________

McMILLIAN, Circuit Judge.

      Christopher Schnapp (“defendant”) appeals from a final judgment entered in
the United States District Court2 for the Eastern District of Missouri upon a jury
verdict finding him guilty of one count of arson in violation of 18 U.S.C. § 844(i).

      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa, sitting by designation.
      2
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
United States v. Schnapp, No. 4:00CR583 (May 14, 2002 E.D. Mo.). For reversal,
defendant argues that the district court (1) abused its discretion in disallowing his
testimony regarding a prior inconsistent statement allegedly made by one of the
government’s witnesses and (2) erred in denying his motion for judgment of acquittal
on grounds of insufficiency of the evidence. For the reasons discussed below, we
affirm the judgment of the district court.

       Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

                                    Background

       Defendant was indicted on December 21, 2000, on one count of arson. His trial
commenced on July 3, 2001. The following is a summary of the government’s theory
of the facts as presented to the jury. See Brief for Appellee at 2-11.

       On April 9, 1998, at approximately 11 p.m., a fire broke out at the St. Clair
One-Stop Convenience Store (“the One Stop” or “the store”), which was owned by
defendant’s parents and operated by defendant and his wife. A local law enforcement
officer, Travis Blankenship, noticed smoke billowing from the One Stop building and
radioed the dispatcher. Fire and police personnel responded within a few minutes
after Blankenship’s call.

       Defendant and an employee of the One Stop, Brandy Hartman (hereinafter
“Brandy”), had just left the store when Blankenship radioed the dispatcher about the
fire. According to Brandy, just before they left, defendant said he had forgotten his
jacket and went back into the store to retrieve it while she waited at the door. He was
gone for about a minute. When he returned, he set the security alarm, and they
departed. Earlier that day, Brandy had left the store because her mother had had a

                                         -2-
medical emergency and had been hospitalized. When Brandy left to see her mother,
defendant told her that she could take the rest of the day off, but she voluntarily
returned later in the day. Both she and defendant are cigarette smokers and had been
smoking at the store on the day of the fire. However, Brandy testified that defendant
had a policy of not allowing ashtrays to be dumped into trash bags within the last half
hour of the work day and she believed that the policy had been followed on the day
of the fire.

       Around the time Blankenship was radioing the dispatcher, the security
company monitoring the One Stop’s alarm system detected motion within the
building and notified defendant. The security system registered the time that
defendant set the alarm as 11:02 p.m. and the time that the motion detector was
activated as 11:06 p.m. Defendant immediately returned to the store, where he met
a police officer, Officer Calhoun, who had responded to the radio dispatch. Calhoun
examined the building from the outside and observed no signs of forced entry. He
obtained keys to the building from defendant and gave the keys to the firefighters
who had arrived on the scene. The fire was extinguished at approximately 12:16 a.m.
Afterward, defendant, accompanied by Calhoun, was permitted to enter the store,
where he recovered some cash, lottery tickets, and a gun.

       Laclede Gas had shut off the gas to the One Stop building while the fire was
being put out, and an employee of Missouri Gas subsequently checked the lines and
determined that gas was not a cause of, or contributor to, the fire. Jim Schuhmacher,
an investigator with the Franklin County prosecuting attorney’s office, had been
called to the scene shortly after the fire started. He entered the One Stop building on
several occasions after the fire. Based upon his inspections of the building and
interviews of defendant and Brandy, he concluded that the fire was not ignited by
natural gas coming from the furnace, smouldering cigarette butts in the trash, a faulty
gas line, the electrical systems, flammable liquids spilled or poured on the floor, or
any other accidental cause. He testified that, in his opinion, “the fire’s origin was the

                                          -3-
furnace storage room area located at floor level and was deliberately introduced by
a human being.” Brief for Appellee at 5.

       Bill Buxton, a part owner of a firm called Pyr-Tech, Inc. (“Pyr-Tech”), was
hired to conduct a fire cause-and-origin investigation by the company that had insured
the One Stop building, Secura Insurance Co. (“Secura”). Giving reasons similar to
Schuhmacher’s, Buxton testified that, in his opinion, the fire had been deliberately
set using ordinary combustible items such as cardboard boxes, beer cases, and paper
bags at floor level. Id. at 6. Lloyd Brown, an electrical engineer hired by Buxton to
examine the electrical systems, testified that the fire did not appear to have started in
the furnace, nor was it ignited by an electrical source. Id. at 7-8.

       At the time of the fire, the One Stop was having financial difficulties. A tax
collector for the Missouri Department of Revenue, Barbara Mueller, testified that, as
of April 8, 1998, the day before the fire, One Suzy-Q, d/b/a St. Clair One-Stop, was
delinquent on taxes by approximately $30,000 and was on the verge of having its
business license revoked. Defendant paid approximately $10,000 on April 8, 1998,
but needed to pay another $3,700 by April 10, 1998, to avoid revocation. The One
Stop had, in the past, received 23 notices of imminent revocation of its business
license, but its license had never actually been revoked because defendant had always
paid on time. A senior auditor with the Bureau of Alcohol, Tobacco, and Firearms,
John Sarson, testified that, at the time of the fire, the One Stop was heavily in debt,
operating at a loss, regularly relying on check overdrafting to stay in business, and
had a negative balance in its bank accounts. Gary Railing, the agent with Secura who
had issued the policy for the One Stop, testified that the building was insured for
$240,000, the inventory and actual loss of business income were insured for
$150,000, and other miscellaneous coverage added up to $30,000. Railing and other
individuals associated with suppliers for the One Stop testified about the store’s
indebtedness and shortage of funds. Finally, an inspector with the Missouri
Department of Natural Resources, Jeanine Hoeft, testified that, on April 9, 1998, she

                                          -4-
had inspected the gas storage tanks at the One Stop, and they were not yet in
compliance with gas storage tank upgrade requirements which were to become
mandatory on December 22, 1998. According to Hoeft, she measured the gas levels
in the two storage tanks at the One Stop on April 28, 1998, and found them to be
virtually empty.

        In sum, according to the government’s theory of the case, defendant
deliberately set the fire at the One Stop as a desperate attempt to get the business out
of its dire financial circumstances.

       The defense cross-examined the government’s witnesses. Schuhmacher, on
cross-examination, admitted that, on or about April 10, 1998, he removed a
fluorescent light fixture and a junction box from the ceiling of the furnace room of
the One Stop building. He testified, however, that he could not remember why he had
done so. Schuhmacher also admitted that, before taking his job with the prosecutor’s
office, he was employed as a fire investigator with Pyr-Tech, the company that was
partly owned by Buxton and was hired by Secura to investigate the cause and origin
of the One Stop fire. Schuhmacher had worked directly under Buxton while
employed at Pyr-Tech and had remained friendly with Buxton over the years.3
Buxton and Schuhmacher had talked on the telephone before Buxton inspected the
One Stop building on April 14, 1998, and Schuhmacher accompanied him on that
inspection. Neither Schuhmacher nor Buxton mentioned their relationship with one
another in their respective written reports regarding the cause and origin of the fire.
Some of the government witnesses conceded, on cross-examination, that there was
evidence of electrical arcing at the scene of the fire; some also conceded that, if
styrofoam products were stored in the furnace room, as defendant later testified, that
could explain the rapid acceleration of the fire because styrofoam is highly


      3
     Indeed, Buxton, on cross-examination, credited himself with having taught
Schuhmacher everything he knows.

                                          -5-
flammable. Government witnesses further agreed on cross-examination that the fire
could have spread in the same manner whether started accidentally or deliberately.
They uniformly agreed that defendant cooperated fully with their investigations.

      Defendant then moved at the close of the government’s case for judgment of
acquittal based upon insufficiency of the evidence. The motion was denied.

      The defense presented three witnesses: (1) Ronald Gronemeyer, a fire
cause-and-origin expert, (2) Lawrence Schnapp, defendant’s father and the owner of
the One Stop, and (3) defendant himself. Gronemeyer had been hired in 1998 by
Lawrence Schnapp after Secura denied insurance coverage. He first investigated the
scene of the fire on August 1, 1998. He testified that it was “difficult to impossible”
to determine where in the furnace room the fire had started. He opined that there
were several possible sources of ignition of the fire: electrical arcing at a flexible
conduit, smoking materials in the trash, ignition of flammable vapors, or a deliberate
human act. While he agreed that arson was a possibility, he could not say with
reasonable certainty that arson was the cause.

       Lawrence Schnapp, defendant’s father, testified that he and his wife were the
sole owners of One Suzy-Q Corp., d/b/a St. Clair One-Stop, as well as the restaurant
property next door to the One Stop. He and his wife were out of town at the time of
the fire. He had no problems with defendant’s management of the One Stop prior to
the fire. Although he was aware of defendant’s business practices, including the
routine bank overdrafting, he knew that defendant always managed to keep the
business afloat. The restaurant property had recently produced a net monthly loss for
them, so the One Stop had been covering the difference on that mortgage. The fire,
and the denial of coverage by Secura, had financially devastated Lawrence Schnapp
and his wife, who were left hundreds of thousands of dollars in debt.




                                         -6-
        Defendant took the stand on his own behalf. His testimony included, among
other things, a description of the loss of items in the fire, such as important papers
that were left out in the office. He also testified that there were three cases of
styrofoam coolers and minnow buckets stored in the furnace room. He testified that
he often stored trash bags in the furnace room and recalled that there were several
such bags left there on the night of the fire. He confirmed that he had opened the
store at 4:10 a.m. on April 9, 1998,4 and had worked almost continuously for 19 hours
that day. He also recalled that Brandy was very upset that day because of her
mother’s work-related accident and injuries. Both defendant and Brandy were
smokers and, in addition, customers were permitted to smoke in the store. Defendant
testified that Brandy did most of the cleaning up for the night and, notwithstanding
his policy of not allowing cigarette butts to be put in the trash within the last hour and
a half before closing, he had no way of knowing whether a customer or Brandy may
have inadvertently discarded a smouldering cigarette butt in the trash on the night of
the fire. In addition, defendant testified that, at the time of the fire, the store
contained over $3,000 cash in the registers and the safe, $8,200-worth of lottery
tickets, and $1,000 in change. Defendant also testified that his parents had full
ownership of both the One Stop property and the restaurant property next door. As
far as he knew, they were the only beneficiaries on the insurance policy.5 Defendant’s
only income at the time of the fire was his salary for operating the One Stop. Finally,
regarding the delinquent taxes, defendant explained that he could have avoided
revocation of his business license by obtaining a last-minute bank loan, as he had
always been able to do in the past.




      4
       The security company records showed that the alarm had been turned off at
4:10 a.m. on the morning of April 9, 1998.
      5
       According to defendant, he learned well after the fire that the insurance policy
included employee salary coverage.

                                           -7-
       During defendant’s testimony, defense counsel asked defendant if he and
Schuhmacher had gone into the One Stop building together shortly after the fire was
extinguished. Defendant answered that they had. At that point, the government
asked to approach the bench. In a sidebar conference, counsel for the government
stated that he believed defense counsel was about to ask defendant about statements
made to him by Schuhmacher just after the fire. The government objected to this
anticipated testimony on hearsay grounds. Defense counsel responded that the
statements would not be offered for their truth but rather as prior inconsistent
statements, to impeach Schuhmacher’s testimony at trial regarding the cause of the
fire. The district court noted that defense counsel had not questioned Schuhmacher
about the alleged prior inconsistent statement despite having the opportunity to do so
when cross-examining Schuhmacher during the government’s case-in-chief. Upon
the district court’s indication that the evidence therefore would not be admitted,
defense counsel made an offer of proof. According to defense counsel, he would
have asked defendant whether or not he (defendant) and Schuhmacher had had a
conversation in the One Stop building on the night of the fire regarding
Schuhmacher’s impression of the cause of the fire; defendant was expected to say
“yes,” and that Schuhmacher told him that the fire probably started high, probably in
the ceiling, and burned downward. Trial transcript, Vol. IV, at 56. The district court
then sustained the government’s hearsay objection, and defense counsel resumed
examining defendant, but on a different line of questioning.

       At the close of the evidence, defendant again moved for judgment of acquittal
on grounds of insufficiency of the evidence. The district court again denied the
motion, and submitted the case to the jury. The jury thereafter found defendant
guilty. Defendant was sentenced to 60 months imprisonment, 3 years supervised
release, a $100 assessment, and restitution in the amount of $247,098.98. He
appealed.




                                         -8-
                                      Discussion
Exclusion of evidence

       Defendant argues on appeal that the district court abused its discretion in
disallowing his testimony regarding the statement Schuhmacher allegedly made to
him on the night of the fire. Defendant would have testified that Schuhmacher, upon
inspecting the building’s interior right after the fire, stated the opinion that the fire
had started in the ceiling of the furnace room. According to defendant, this testimony
would have supported the argument that Schuhmacher changed his opinion after
discussing the matter with Buxton – his longtime mentor and friend, who was hired
by the insurance company. After talking with Buxton, Schuhmacher began asserting
that the fire appeared to have started on the floor of the furnace room. This evidence
also would have explained why both Schuhmacher and Buxton completely failed to
disclose in their written reports their longstanding relationship with one another and
Schuhmacher’s former employment with Pyr-Tech. It further would have explained
why, on April 10th, Schuhmacher removed a fluorescent light fixture and a junction
box from the ceiling of the furnace room despite his claim that he had ruled out the
electrical systems as a source of the fire. Defendant argues that the district court
abused its discretion in disallowing this evidence, notwithstanding Fed. R. Evid.
613(b).

      Rule 613(b) provides in relevant part:

             (b) Extrinsic evidence of prior inconsistent statement of
             witness. Extrinsic evidence of a prior inconsistent
             statement by a witness is not admissible unless the witness
             is afforded an opportunity to explain or deny the same and
             the opposite party is afforded an opportunity to interrogate
             the witness thereon, or the interests of justice otherwise
             require.



                                          -9-
      Defendant argues that the testimony in question should have been admitted
because Schuhmacher was available to be recalled by the government on rebuttal.
Defendant admits that defense counsel should have, on cross-examination during the
government’s case-in-chief, asked Schuhmacher about the statement he allegedly
made to defendant right after the fire. Nevertheless, defendant argues, the
government would not have been, and clearly was not, surprised by the prospect of
defendant testifying about that statement as he had already done so in a deposition.
Defendant also suggests that the interests of justice required full disclosure to the jury
of Schuhmacher’s lack of credibility, a “major issue in the case,” which could have
swayed the jury’s ultimate finding of guilt. Defendant explains:

      It is painfully obvious that Schuhmacher wanted his finding to agree
      fully with those of the insurance company’s origin and cause expert so
      he lied and said he’d not done any investigation, even though he clearly
      was in the building on the 9th and the 10th. It is clear, however, that, after
      meeting Buxton, his mentor, on April 14 and hearing [Buxton’s] opinion
      on the origin (the floor) of the fire, Schuhmacher “fell into line” and
      abandoned the ceiling theory. His report so reflects this. . . . [T]he
      proffered testimony [i.e., that, on April 9th, Schuhmacher said he thought
      the fire started in the ceiling] . . . would have shown the jury [that
      Schuhmacher] is the kind of witness who would change his conclusions
      to conform with those of a more seasoned mentor.

Brief for Appellant at 33-34.

       In response, the government argues that no abuse of discretion occurred in light
of defense counsel’s failure to ask Schuhmacher about his alleged statement on
April 9th, despite ample opportunity to do so on cross-examination. The government
also argues that the defense was really attempting to present Schuhmacher’s statement
for the truth of the statement, notwithstanding the claim that it was being offered for
impeachment purposes. The government further suggests that the defense could have
called Schuhmacher to the stand, asked him about the alleged statement, then called

                                          -10-
defendant. Having failed to lay a proper foundation under Fed. R. Evid. 613(b), the
government concludes, defendant should not now be afforded a new trial. For the
reasons stated below, we agree.

       As quoted above, Rule 613(b) provides that extrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless: (1) the witness is
afforded an opportunity to explain or deny the statement and the opposing party is
afforded an opportunity to interrogate the witness about the statement or (2) the
interests of justice otherwise require. The rule, on its face, does not require that the
witness be cross-examined about the alleged prior inconsistent statement before that
statement may be presented as impeachment evidence. Indeed, the advisory
committee’s notes explain:

      The familiar foundation requirement that an impeaching statement first
      be shown to the witness before it can be proved by extrinsic evidence is
      preserved but with some modifications. . . . The traditional insistence
      that the attendance of the witness be directed to the statement on cross-
      examination is relaxed in favor of simply providing the witness an
      opportunity to explain and the opposite party an opportunity to examine
      on the statement, with no specification of any particular time or
      sequence.

Fed. R. Evid. 613(b) advisory committee’s notes (emphasis added). In fact, the latter
part of the rule, referring to the interests of justice, indicates that such evidence may,
under appropriate circumstances, be admitted even if the witness is never afforded an
opportunity to explain or deny the alleged statement.

      In United States v. Sutton, 41 F.3d 1257, 1260 (8th Cir. 1994), cert. denied, 514
U.S. 1072 (1995), as in the present case, testimony regarding a witness’s prior
inconsistent statement was disallowed by the trial judge “because [the witness] was
not given the opportunity to explain or deny having made a prior inconsistent
statement while he was on the stand, which is normally the proper foundation for

                                          -11-
impeachment under Fed. R. Evid. 613(b).” On appeal, the defendant argued that,
under Rule 613(b), the trial court should have admitted the testimony regarding the
witness’s prior inconsistent statement because the witness was available to be recalled
to deny or explain the statement. We rejected the defendant’s argument, explaining
that such a procedure “is not mandatory, but is optional at the trial judge’s
discretion.” Id. at 1260.6

       In the present case, the district court had the option to allow defendant to testify
regarding Schuhmacher’s alleged prior inconsistent statement, and then permit the
government to recall Schuhmacher to explain or deny the alleged statement.
However, as the district court noted, defense counsel could have asked Schuhmacher
to explain or deny the alleged statement while Schuhmacher was on the stand as a
witness during the government’s case-in-chief, but failed to do so. Upon careful
review, we cannot say that the district court’s decision to disallow defendant’s
testimony regarding Schuhmacher’s alleged prior inconsistent statement rises to the
level of an abuse of discretion.

Sufficiency of the evidence

      Defendant also appeals the district court’s denial of his motion for judgment
of acquittal on grounds of insufficiency of the evidence to support the jury’s verdict.
We will reverse a conviction for insufficiency of the evidence if the government

      6
       Therefore, because this court cited Sutton, 41 F.3d at 1260, for the proposition
that “Rule 613(b) allows impeachment by a prior inconsistent statement only when
a witness is first provided an opportunity to explain the statement,” United States v.
Dierling, 131 F.3d 722, 733 (8th Cir. 1997), cert. denied, 523 U.S. 1066 (1998), we
read that statement in the context of Sutton’s reference to what is “normally the
proper foundation for impeachment under Fed. R. Evid. 613(b).” 41 F.3d at 1260.
In other words, impeachment of a witness by a prior inconsistent statement is
normally allowed only when the witness is first provided an opportunity to explain
or deny the statement.

                                           -12-
failed to prove beyond a reasonable doubt a fact necessary to establish the crime
charged. See In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.”). However,
“[a] motion for judgment of acquittal should only be granted ‘where the evidence,
viewed in the light most favorable to the government, is such that a reasonably
minded jury must have a reasonable doubt as to the existence of any of the essential
elements of the crime charged.’” United States v. Earles, 113 F.3d 796, 802 (8th Cir.
1997), cert. denied, 522 U.S. 1075 (1998). Neither the district court, nor this court
on appeal, may weigh evidence or assess witness credibility when considering the
sufficiency of the evidence to support the jury’s guilty verdict. Id.

      Defendant cites as instructive United States v. Yoakam, 116 F.3d 1346 (10th
Cir. 1997), in which the Tenth Circuit reversed the defendant’s arson conviction
under circumstances somewhat similar to those in the present case. The Tenth Circuit
held in Yoakam that, although the evidence of arson was convincing, the
government’s evidence of the defendant’s guilt was insufficient as a matter of law
because the evidence of his financial motivation required “speculation and
conjecture” and the only physical evidence tying him to the fire was the fact that he
was the last one to leave the building, just minutes before it burst into flames. Id. at
1350.

       By comparison to Yoakam, defendant contends, the case at bar is even weaker.
He contends that the government does not even have sufficient evidence to prove that
the fire at the One Stop was indeed caused by arson. As to motive, defendant argues,
the evidence showed that he and his wife – having no ownership interest in the
business, the building, or the inventory, and relying only on their incomes as
employees of the One Stop – had nothing to gain and everything to lose from the




                                         -13-
destruction of the building.7 As to the government’s reliance on the precarious way
in which the business was operating in the weeks and months just prior to the fire,
defendant suggests that, as a mere employee of the One Stop, he had no legal or
financial obligations associated with the business and could have walked away at any
time. As to the physical evidence, defendant contends that, just as in Yoakam, there
was nothing more than his mere presence in the building a few minutes before the fire
broke out. Defendant also emphasizes, among other things, that: he was extremely
cooperative with all investigators; he immediately provided the keys to the
firefighters so they could extinguish the fire; no indicia of arson, such as the
appearance or odor of accelerants, were detected in the building or on defendant’s
person; and he denied being careless with smoking materials, even though such a
representation would have supported the conclusion that the fire had started
accidentally. Defendant sums up by urging this court to hold, as a matter of law, that
no reasonable jury could have found, beyond a reasonable doubt, that he intentionally
caused the fire.

       We agree with defendant that there are some factual similarities between the
case at bar and Yoakam, but we also note some meaningful differences. In Yoakam,
there was an inconsistency in the government’s evidence which undermined the
government’s theory of guilt: government witnesses testified that a liquid accelerant
had been used to commit the arson, yet witnesses verified that the defendant did not
smell of an accelerant such as gasolene or kerosene at the time of the fire. 116 F.3d
at 1350. There was no such factual inconsistency in the present case. Moreover, in
the case at bar there were circumstances beyond defendant’s “mere presence” at the
scene just before the fire started. For example, after Brandy had exited the store on
the night of the fire, defendant went back in the store for a minute or so, during which


      7
        The Secura insurance policy contained a “business interruption” clause for
salaries, but defendant testified that he was not aware of that provision until it was
revealed in the litigation.

                                         -14-
he was alone in the furnace room. As a smoker, he likely would have had a lighter
or matches on his person. As to motivation, the government presented a strong case
that defendant was at the end of his rope financially and may well have been
desperate for any way out. As the government points out, defendant’s father was out
of money, defendant had just obtained a $50,000 bank loan, the bank accounts were
empty, he had bounced over 200 checks in 1998 alone, sales taxes were due
(meaning the business license was on the verge of revocation), and the gas storage
tanks at the store were empty and in need of repair or replacement. See Brief for
Appellee at 25.

      In sum, not only was there circumstantial evidence of arson, there was evidence
of defendant’s opportunity and means to commit the crime and evidence of his
financial motivation, despite his lack of an ownership interest in the property. Upon
review of the evidence, therefore, we cannot say that a reasonable jury could not have
found defendant guilty beyond a reasonable doubt. Though far from overwhelming,
the evidence was legally sufficient to support the jury’s verdict.

                                    Conclusion

      For the reasons stated, the judgment of the district court is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -15-
