On Appeal from the United States District Court for the Eastern District of Pennsylvania (Criminal No. 86-00052-01).
BEFORE: ADAMS and HIGGINBOTHAM, Circuit Judges, and COWEN, District Judge*fn*
This case arises out of the highly-publicized activities in 1985 of some residents of Southwest Philadelphia in reaction to the purchase of a home in the neighborhood by a black family. After a two-day jury trial in federal district court, the defendant, George Stewart, was convicted on March 27, 1986 of one count each of conspiring to violate the rights of United States citizens, 18 U.S.C. § 241, and of attempting to destroy government property by fire, 18 U.S.C. § 844(f). Stewart was sentenced to five years in prison on Count One, and five years probation and approximately $8,300 in fines on Count Two. Stewart now appeals, claiming that the evidence presented by the government is insufficient as a matter of law to sustain the conviction under Count One, and further that the district court erred in admitting testimony by a neighbor of the black family whose home was damaged by the fire.
Marietta Bloxom and Charles Williams, a black couple, purchased a row house located at 2548 South 61st Street in Philadelphia from the Veteran's Administration on October 31, 1985. They moved into the house the following weekend, and almost immediately became the targets of racially oriented demonstrations and harassment by white residents of the neighborhood. There was testimony at trial that Bloxom and Williams left the house on November 20, after "BB gun" pellets were shot through the windows. App. at 188a. According to Bloxom, the couple arranged with the Veteran's Administration to leave all their belongings except day-to-day clothing in the house until they could locate new housing in a more hospitable environment.
The incidents that precipitated the prosecution of Stewart took place some three weeks after Bloxom and Williams had moved out of their house. During the evening of December 12, the house was burned after gasoline was poured on the living room floor and ignited. The house also had been burgled several hours before the fire.
On February 6, 1986, a federal grand jury indicted Stewart and two codefendants, Vincent Callahan and Stewart and two codefendants, Vincent Callahan and Thomas O'Donnell, charging them with conspiring to violate the constitutional rights of United States citizens, and with attempting to destroy government property by fire. Prior to trial, the two codefendants pled guilty to both counts, and appeared as witnesses for the government.
Callahan testified that he met O'Donnell and Stewart at a street corner near the house at about 6 p.m. on December 12, 1985. All three drank beer they had purchased at a nearby bar, and discussed the increased police surveillance of the neighborhood. According to Callahan, the group, accompanied by a fourth young man, eventually broke into the house, and took several small articles. When asked about the motive for the burglary, Callahan stated that they all wanted to "keep other blacks from moving in." App. at 154a. The group went to Stewart's house, Callahan testified, and left the stolen items there. Stewart them suggested that they burn the house, and although O'Donnell was at first reluctant to set the house afire, Callahan and O'Donnell purchased gasoline at a neighborhood gas station. Callahan stated that he poured the gasoline onto the living room floor, and that Stewart ignited it with a match. Once again, when asked what prompted him to set fire to the house, Callahan answered that the three young men had acted "so them or other blacks couldn't move back in." App. at 161a. Callahan also testified that he was aware that the government owned the house.
In his testimony, O'Donnell substantially corroborated Callahan's story, and gave his reason for participating in the arson as wanting to ensure "that the neighborhood wouldn't be so, you know, hot and there were cops all over and the black family wouldn't return to live in the house." App. at 237a.
Also appearing as government witnesses were Gregory Downs, an employee of the gasoline station, and Barbara Mangano, who lives next door to the 2548 South 61st Street property. Downs testified that he sold one dollar's worth of gasoline to Callahan and O'Donnell during the evening of December 12. Mangano stated that when she looked through the first-floor windows of 2548 at approximately 9:35 p.m. that evening, she observed flames and that she evacuated her family shortly before the windows of 2548 were blown out by the fire. Stewart did not testify.
After deliberately for approximately 4 1/2 hours, the jury returned verdicts of guilty on both counts of the indictment. District Court Judge Newcomer denied post-trial motions for a new trial and for judgment of acquittal on April 28, 1986, and sentenced Stewart on May 13. In his appeal, Stewart claims that there was insufficient evidence to support the ...