                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 6, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-10905
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DONALD RICHARD CHURCHILL,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:01-CR-373-ALL-G
                        --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Donald Richard Churchill appeals his convictions for

attempting to damage and destroy by means of fire and an

explosive, a building used in interstate commerce and with using,

carrying, and possessing a destructive device in furtherance of

arson.   Churchill was sentenced to a term of imprisonment of 152

months for the attempt charge and to life imprisonment on the

charge involving the use of a destructive device.



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  -2-

     Churchill argues that the evidence was insufficient to

support his convictions for the two aforementioned charges

because there was no intent to destroy the Custom Canvas building

during that incident.   He argues that the fire in that building

was started to remove suspicion from the tenant of the building

damaged in the first fire.

     Viewing the evidence in the light most favorable to the

verdict, it was sufficient to show that Churchill acted with

willful disregard or intentionally to use a destructive device to

cause damage to the Custom Canvas Building, a building containing

a business involved in interstate commerce.   Churchill obtained

the jugs, the accelerant, and the wicks necessary to create the

destructive device required to carry out the crime of violence,

arson.    He brought Hartkey to the building and directed Hartkey

to ignite and throw the jugs at the building.    Churchill took the

overt steps necessary to cause damage and, in fact, did cause

damage to the second building with the use of an incendiary

device.

     There was sufficient evidence presented for a rational trier

of fact to find that the Government proved the essential elements

of both offenses beyond a reasonable doubt.     See 18 U.S.C.

§ 844(i); 18 U.S.C. § 924(c)(1)(B)(ii); United States v. Monroe,

178 F.3d 304, 307 (5th Cir. 1999); United States v. Briscoe, 742

F.2d 842, 846 (5th Cir. 1984).
                            No. 02-10905
                                 -3-

     Churchill argues that the district court plainly erred in

admitting opinion evidence by the investigating officer regarding

an immunity agreement.    He argues that the testimony constituted

an opinion as to Hartkey’s veracity and implied that his

testimony as to Churchill’s guilt was true.

     The prosecutor’s question concerning the witness’s immunity

agreement was in response to defense counsel’s assertion during

cross-examination of the officer that the Government acted

hastily and unreasonably in providing Hartkey with complete

immunity.    The officer’s response was not an opinion on the

ultimate issue of Churchill’s guilt, but merely an affirmation of

his belief that the Government acted prudently in granting

Hartkey immunity.    Therefore, it was not error to admit this

testimony.

     Churchill argues that the district court abused its

discretion in allowing the Government to elicit testimony about

his misconduct and bad character.    The testimony complained about

did not fall into any of the exceptions to the hearsay rule cited

by the Government because it is not clear that the statements

were made contemporaneously with the incident and because the

source of the women’s fears was not admissible evidence of their

existing mental state.    See FED. R. EVID. 803(1), (2), (3).

Although the testimony concerning the women’s statements was not

admissible, the error was harmless because it was not so
                             No. 02-10905
                                  -4-

prejudicial as to affect the jury’s verdict.     See United States

v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).

     Churchill argues that the district court abused its

discretion in allowing the prosecutor to ask Thomas whether he

believed Churchill was “crooked” and engaged in shady deals.

because it was elicited to prove that he was a man of bad

character and acted in conformity therewith.    Although this

testimony indicated that Churchill had previously engaged in some

“shady” deals, it was also evidence that Thomas was aware that

Churchill was not a law-abiding citizen.    The Government’s

question raised an inference that if the building’s tenant was

seeking a means to illegally collect insurance money, he would

have felt comfortable asking Churchill to become involved in the

scheme.   Thus, the evidence was admissible for a purpose other

than to merely show Churchill’s bad character.     See FED. R. EVID.

404(b).

     Further, as the Government points out, in cross-examining

accomplice Hartkey about one of his statements, defense counsel

referred to Hartkey’s comment that Churchill had been involved in

different scams and two or three insurance jobs.     Counsel opened

the door to questioning about Churchill’s past unlawful

activities and, thus, cannot complain about the prosecutor’s

pursuit of the subject.     See United States v. Raymer, 876 F.2d

383, 388 (5th Cir. 1989).
                           No. 02-10905
                                -5-

     With respect to the testimony that Churchill was intoxicated

during the clean-up process, it was admissible to show why

Churchill was so candid about making money as a result of the

fire.   The admission of that evidence was not plain error.

     Churchill’s convictions are AFFIRMED.
