                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                    PUBLISH
                                                                         JUN 19 1998
                   UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                    No. 96-4144

 ROBERT WIKTOR,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                      (D.C. No. 95-CV-990)


Submitted on the briefs:

Scott M. Matheson, Jr., United States Attorney, Mark K. Vincent, Assistant
United States Attorney, United States Attorney’s Office, Salt Lake City, Utah, for
Plaintiff-Appellee.

Edward K. Brass, Salt Lake City, Utah, for Defendant-Appellant.


Before PORFILIO, BARRETT, and HENRY, Circuit Judges.


PER CURIAM.
      Defendant Robert Wiktor appeals his conviction for one count of

maliciously damaging property and two counts of mail fraud. We affirm. 1


                                   I. Background

      Defendant was the general manager of Great Western Distributing, a

telemarketing business owned by co-defendant Katherine Harp. 2 On June 25,

1992, an intentional fire was set in Great Western Distributing’s storage room.

According to firefighters, the fire caused limited damage to a telephone system

and one portion of the storage room. The sprinkler head over the fire was not

functioning, and the fire investigator took the head for further investigation.

      In July 1992, defendant completed an insurance proof of loss with the help

of employee Cummings, claiming $239,883 in property loss, $150,000 in extra

business expenses, and $80,000 in lost income. Defendant claimed the fire

destroyed approximately $35,000 worth of jewelry, several leather bomber jackets

worth $3,330, a painting worth approximately $2,000, a copy machine, a fax

machine, and approximately $135,000 in valuable sales leads. Unigard Insurance




      1
              After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.
      2
              Co-defendant Harp’s trial was severed from defendant’s trial due to a
conflict of interest between defendant and Harp’s attorney.

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Company issued several checks on this claim, including checks for clean up and

continuing business expenses, for a total of $61,347.19.

      In December 1992, employee Cummings contacted Unigard to inform them

that defendant’s claim was fraudulent. He recounted defendant’s statements that

he had set the fire using an alcohol-based solvent, and that he had “super-glued”

the sprinkler head. After Cummings contacted the fire investigator with the same

information, the sprinkler head was sent to the Bureau of Alcohol, Tobacco and

Firearms, which confirmed that it had indeed been “super-glued.”

      At trial, Cummings testified that defendant told him he had set the fire and

glued the sprinkler head. He also testified that defendant instructed him to

exaggerate the losses in insurance documents, to include items that were not in

the storage room at the time of the fire, and to forge several receipts allegedly

showing that Great Western had purchased the sales leads claimed to have been

lost. Cummings testified to defendant’s statements that the fire was very

opportune, that he would make a lot of money out of it, and that they had to make

it look like the business would reopen to ensure payment of the insurance claim.

Finally, Cummings testified that defendant and co-defendant Harp decided to

claim the jewelry and bomber jackets during a phone call; that they sold the

allegedly lost leads to another company; that he helped defendant remove the




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undamaged copy machine and fax machine from the office; and that the painting

claimed to be lost was hanging in defendant’s office after the fire.

      In addition, trial testimony showed the following. There was evidence that

the business was in severe financial distress at the time of the fire, and that

defendant had purchased a half-million dollar insurance policy twenty days

earlier, expressing great urgency. An employee testified that when she checked

and locked the storage room at 9:00 p.m., there was no sign of fire, and that

defendant remained at the office when she left the building that evening. Several

employees testified that this was very unusual. The fire investigator estimated the

fire started shortly after 9:00 p.m. When firefighters arrived at approximately

10:00 p.m., they found the building locked, the storage room unlocked, and the

alarm deactivated, although defendant reported he had set the alarm when he left.

Defendant was one of four people with a key to the building and knowledge of the

alarm code.

      The fire investigator testified that the sprinkler head directly over the fire

had been “super-glued.” He also testified that he physically examined the

contents of the boxes in which the jewelry, jackets, and painting were allegedly

stored, finding nothing but burned paper. He testified that such jewelry would not

have burned because the fire was not even hot enough to burn the stored plastic

supplies. None of the photographs taken that evening showed the claimed items.


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Further, several employees testified that the sales leads in the storage room were

worthless, as they were comprised of already-contacted potential customers who

had not purchased anything. Finally, there was evidence that the assets and salary

figures claimed in the proof of loss were significantly overstated when compared

to payroll and business records. Defendant was convicted of maliciously setting

the fire and two counts of mail fraud in obtaining insurance proceeds under false

pretenses.

      On September 19, 1994, defendant was sentenced to sixty-three months’

incarceration and was ordered to pay $61,347.19 in restitution to Unigard. When

defendant indicated his intent to appeal, the district court ordered the clerk to file

a notice of appeal. Due to inadvertance, this did not occur. In October 1995,

defendant filed a motion pursuant to 28 U.S.C. § 2255, seeking an appeal out of

time. The motion was granted in August 1996, and counsel was appointed to

represent defendant. Additional delays occurred because appointed counsel

requested several extensions of time and because an incomplete record was

transmitted to the court. On appeal, defendant challenges the jury instructions

and the restitution order, and argues that the inordinate delay in deciding his

appeal resulted in a violation of his right to due process.




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                                II. Jury Instructions

      Defendant argues the jury instructions were incorrect because (1) the jury

was not given a cautionary instruction regarding the testimony of an accomplice,

and (2) the instructions improperly defined “maliciously” to include recklessness.

When reviewing jury instructions, we examine them as a whole to determine

whether the jury may have been misled, upholding the judgment in the absence of

“substantial doubt that the jury was fairly guided.” United States v. Pappert, 112

F.3d 1073, 1076 (10th Cir. 1997) (quotation omitted). We review an instruction

de novo when an objection was made at trial, and for plain error when no such

objection was made. See id.

      Defendant argues the district court’s failure to caution the jury sua sponte

regarding the suspect nature of Cummings’ accomplice testimony was plain error,

requiring reversal. We have held the failure to give such a cautionary instruction

is plain error when the accomplice’s testimony is uncorroborated. See, e.g.,

United States v. Hill, 627 F.2d 1052, 1053 (10th Cir. 1980). Here, however,

Cummings’ testimony was substantially corroborated.

      Through other witnesses, there was evidence that defendant was present in

the building when the fire was estimated to have begun; that his presence at that

time of night was unusual; that he had a strong financial motive to commit arson;

and that the sprinkler head was indeed “super-glued” shut. There also was


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overwhelming evidence that defendant claimed the loss of items that had not been

damaged by the fire or that did not exist. In addition, the district court’s

credibility instructions to the jury included as a factor to be considered “the

witness’ interest in the result of the trial.” R. I, doc. 59, Instr. 12. Under these

circumstances, we conclude it was not plain error to omit an instruction

cautioning the jury regarding Cummings’ accomplice testimony. See, e.g., United

States v. Shuckahosee, 609 F.2d 1351, 1356-57 (10th Cir. 1979) (holding when

accomplice’s testimony corroborated, general credibility instruction sufficiently

informed jury how such testimony should be considered); United States v.

Williams, 463 F.2d 393, 395-96 (10th Cir. 1972) (holding failure to give

cautionary instruction not reversible error when accomplice’s testimony

substantially corroborated).

      The district court also correctly instructed the jury as to the mens rea

required by 18 U.S.C. § 844(i), which punishes a person who “maliciously

damages or destroys . . . by means of fire or an explosive, any building . . . used

in interstate or foreign commerce . . . .” The jury instructions defined

“maliciously” as follows:

      You may not find the defendant guilty for acting mistakenly or
      carelessly. In order to find defendant guilty you must find that he set
      the fire . . . intentionally or that he did so recklessly. To do
      something intentionally is to do it deliberately. To do something
      recklessly is to do it with willful disregard of the likelihood that
      damage or destruction would result.

                                           -7-
R. I, doc. 57, Instr. 33.

       The federal statute does not define “maliciously.” Looking to common law

and the legislative history of § 844, several circuits have held the term includes

acts done “intentionally or with willful disregard of the likelihood that damage or

injury would result.” United States v. Gullett, 75 F.3d 941, 947-48 (4th Cir.

1996) (holding § 844(i) employs common law meaning of “maliciously” to

include conduct done intentionally or with willful disregard of the likelihood of

damage, finding support in legislative history); McFadden v. United States, 814

F.2d 144, 145-46 (3d Cir. 1987) (holding § 844(f) [enacted simultaneously with

§ 844(i)] incorporates common law meaning of “maliciously,” after examining

legislative history); see United States v. Corona, 108 F.3d 565, 571 (5th Cir.

1997) (holding § 844(i) employs common law meaning of “maliciously” to

include acts done in willful disregard of likelihood of damage); United States v.

Sweet, 985 F.2d 443, 445 (8th Cir. 1993) (holding term “maliciously” included

acts done intentionally or with willful disregard of likelihood of damage in bomb

threat statute, 18 U.S.C. § 35(b)); see also Heggy v. Heggy, 944 F.2d 1537, 1543

(10th Cir. 1991) (indicating a finding that a person acted “maliciously,”

“oppressively,” or “wantonly” includes a finding of recklessness). Applying this

definition, we hold the district court did not err in instructing the jury as to the

required mens rea.


                                           -8-
      Our decision in United States v. M.W., 890 F.2d 239, 240-41 (10th Cir.

1989), in which we held the term “willfully and maliciously” included knowing

conduct, does not require a contrary result. Section 844(i) requires only that a

defendant act maliciously, not willfully. As such, the provision of the Model

Penal Code equating willful conduct with knowing conduct does not apply. See

Model Penal Code § 2.02(8), at 227 (1985). If anything, the absence of a

willfulness requirement indicates that a defendant’s conduct need not be knowing

to be punishable.


                                   III. Restitution

      Defendant argues the district court erred in ordering restitution without

considering the statutory factors set out in 18 U.S.C. § 3664(a) or defendant’s

ability to pay within a specified period of time. As no objection was raised, we

review the court’s order for plain error. See United States v. Fisher, 132 F.3d

1327, 1330 (10th Cir. 1997).

      Prior to its amendment in 1996, § 3664(a) required the court to consider the

financial resources of the defendant, the financial needs and earning ability of the

defendant and his dependents, and any other appropriate factor. Specific findings

regarding a defendant’s ability to pay are not required, so long as sufficient

evidence was available to and considered by the sentencing court. See United

States v. Kunzman, 54 F.3d 1522, 1532 (10th Cir. 1995). Here, the presentence

                                         -9-
report contained information regarding defendant’s financial status, his earning

potential, his employment history, his education, and his lack of dependents. The

district court clearly considered this information in adopting the report’s factual

findings and in finding that defendant did not have the ability to pay a fine in

addition to restitution. See R. VII at 19, 22-23. The court also specified the

period of time within which restitution should be made, requiring payments out of

defendant’s prison earnings while incarcerated, and out of his regular earnings

during supervised release. We conclude the court adequately considered the

factors enumerated in § 3664(a), including defendant’s ability to pay within the

specified period of time, and that no plain error occurred.


                             IV. Due Process Violation

      Finally, defendant argues that he suffered a due process violation due to the

inordinate delay in having his appeal decided. In Harris v. Champion, 15 F.3d

1538, 1557 (10th Cir. 1994) (Harris II), we held that inordinate delay in

adjudicating a defendant’s direct criminal appeal could give rise to an

independent due process violation. We identified four factors to be considered:

(1) the length of delay; (2) the reason for the delay and whether it was justified;

(3) whether defendant asserted his right to a timely appeal; and (4) whether the

delay prejudiced defendant in relation to specific interests sought to be protected

by a timely appeal. See id. at 1559. In Harris v. Champion, 48 F.3d 1127, 1132

                                         -10-
(10th Cir. 1995) (Harris III), we held that a rebuttable presumption of prejudice

arises when the delay attributable to the government exceeds two years.

      Here, the delay attributable to the government exceeded two years. Even

assuming the other three requirements have been fulfilled, we conclude defendant

has not suffered a due process violation, as his unsuccessful direct appeal rebuts

the presumption of prejudice arising from the delay. See Harris II, 15 F.3d at

1564-65 (explaining that defendant cannot show impairment of ability to mount

defense on retrial, constitutionally cognizable anxiety, or oppressive

incarceration, if appeal meritless).

      We note that even if defendant had established a due process violation, he

would not have been entitled to invalidation of his conviction. Our cases have

made clear that the remedy for a due process violation caused by inordinate delay

is not immediate release from custody, but consideration of defendant’s appeal.

Issuance of a conditional writ in state habeas cases only ensures that the appeal

will be heard, it does not invalidate the underlying conviction. Here, defendant

has received his remedy, as we have reviewed the merits of his appeal.

      The judgment of the United States District Court for the District of Utah is

AFFIRMED.




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