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United States v. Saad

United States Court of Appeals, First Circuit

April 30, 2018

DANIEL E. SAAD, Defendant, Appellant.


          Claire M. Specht, with whom Felicia H. Ellsworth and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellant.

          Donald Lockhart, with whom Stephen G. Dambruch, Acting United States Attorney, was on brief, for appellee.

          Before Lynch, Thompson, and Barron Circuit Judges.


         Following 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 prison.

         Saad's 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.

         The supposed errors that Saad argues, whether individually or collectively, were harmless at most. We affirm.

         I. Facts

         We 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)).

         A. Background

         Snow's 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.

         Saad's 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 overdraft fees.

         Saad 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.

         Saad 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.

         B. The Fire

         Tracey 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.

         The 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.

         The 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 night.

         C. The Investigation

         Deputy 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.

         The 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 stove.

         D. Cell ...

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