FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. John J. McConnell, Jr., U.S. District
M. Specht, with whom Felicia H. Ellsworth and Wilmer Cutler
Pickering Hale and Dorr LLP were on brief, for appellant.
Lockhart, with whom Stephen G. Dambruch, Acting United States
Attorney, was on brief, for appellee.
Lynch, Thompson, and Barron Circuit Judges.
a fourteen-day jury trial, Daniel E. Saad was convicted of
arson, wire fraud, and the use of fire in furtherance of a
federal felony. Saad, who testified, appeals from these
convictions, which stem from a November 30, 2014 fire that
gutted Snow's Clam Box, a restaurant he owned in
Glocester, Rhode Island. He was sentenced to fifteen years in
primary argument is that the prosecution violated his rights
under the Confrontation Clause when an investigator testified
that the cause of the fire was incendiary and not electrical.
Saad argues that the investigator relied on the conclusions
drawn by Saad's insurer's electrical expert without
calling that expert to the stand, where he could be
cross-examined. This also, he argues, was a violation of
Federal Rule of Evidence 703. The government argues in turn
that Saad misreads the record and there was no error and, in
any event, any possible error was harmless. Saad also makes
an unpreserved claim that statements by the prosecution in
closing about the credibility of witnesses were inappropriate
and warrant a new trial.
supposed errors that Saad argues, whether individually or
collectively, were harmless at most. We affirm.
recite the facts in the light most favorable to the jury
verdict. United States v. Van Horn, 277 F.3d 48, 50
(1st Cir. 2002) (citing United States v. Escobar-de
Jesus, 187 F.3d 148, 157 (1st Cir. 1999)).
Clam Box was located in Glocester, Rhode Island, about a
forty minutes' drive from Saad's home in Spencer,
Massachusetts. Saad owned six other restaurants in addition
to the Clam Box, all of which were located in Massachusetts.
financial situation was deteriorating in 2014. He owed almost
$2.5 million to his creditors and his businesses were
performing poorly, which caused him to make many loan
payments late. Paychecks to his employees bounced on multiple
occasions, and vendors "refused to deliver goods to
Snow's Clam Box until outstanding balances were
paid." Saad had thirty accounts spread across eight
banks by the time of the fire, and he wrote checks on
insufficient funds from one account to another in an attempt
to stay current with his creditors. As a result of this
check-kiting, Saad overdrew his accounts 6, 892 times between
January 2011 and November 2014, incurring $198, 851 in
also often pledged large portions of his restaurants'
future credit card receivables in exchange for short-term,
high-interest loans. He sold $791, 779 in receivables by this
method, receiving $583, 008 in funding. Saad's many bank
accounts had an aggregate balance of negative $9, 043 at the
time of the fire.
had a $1 million insurance policy on the Clam Box, which
covered $700, 000 for the building, $150, 000 for the
contents, and $140, 000 for lost income. He initiated a claim
under that policy on the day of the fire.
Smith, a tenant living above the Clam Box, testified that she
was walking her dogs around 5:00 AM on November 30, 2014.
While on the east side of the building, she heard the sound
of a door closing on west side of the building. After she
returned to her apartment, she heard movement in the
restaurant downstairs, and the fire alarm went off. Smith
smelled gasoline as she fled the building with her son and
dogs. She had not noticed that smell while walking her dogs
earlier. Once outside, Smith saw flames on the west side of
the building and dialed 9-1-1 from her cellphone. Smith also
called Saad twice, but he did not answer.
fire department received notice of the fire at 5:23 AM. When
the fire department arrived at the scene, the west side of
the restaurant was engulfed in flames. The west side of the
restaurant was severely damaged by the fire.
Clam Box had security cameras, but the system's digital
video recorder ("DVR") had been removed less than a
week before the fire. Saad claimed that this was because the
DVR was not functioning, but there was evidence that was not
true. The Clam Box also had a burglar alarm, but it was
disabled at the time. Similarly, the doors to the restaurant
had locks, but the basement door had been left unlocked that
State Fire Marshal Paul Manning assembled an investigative
team and the group divided up the necessary roles. Special
Agent James Hartman from the Bureau of Alcohol, Firearms,
Tobacco, and Explosives ("ATF"), a certified
investigator, had responsibility for writing the "cause
and origin" report expressing his opinion of how the
fire started. Manning was responsible for collecting evidence
and documenting the scene with photographs and diagrams.
Kevin Murphy, a senior investigator from the Rhode Island
State Fire Marshal's Office, was assigned to
"examine the electrical systems . . . to help [the team]
determine if it was possibly an accidental fire related to
electricity." For the two days following the fire,
Murphy reviewed the building's electrical features, such
as circuit breakers and wiring, in search of any signs that
the fire was caused by an electrical issue. On December 5,
Murphy continued his investigation with the help of Michael
Rains, an employee for Saad's insurance carrier who had
electrical expertise. Murphy completed his review that day.
investigators determined, based on the pattern of the fire
damage along with other signs, that the fire had two origin
points: the pellet stove area on the west side of the bar and
the floor on the east side of the bar. They ruled out many
possible causes of the fire, including electrical fault, a
gas leak, and a stove malfunction. The team collected and
tested samples of debris "from the west side of the bar,
which was adjacent to the pellet stove, inside the pellet
stove, the east side of the bar, and the northeast side of
the lounge near the restaurant area." Many of these
tested positive for gasoline, including samples taken from
the inside of the pellet stove and the area near the pellet