United States of America v. John Floyd Carey, Sr

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3773
UNITED STATES OF AMERICA
v.
JOHN FLOYD CAREY, SR.,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 05-cr-0230
(Honorable Malcolm Muir)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2009
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
(Filed: July 20, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
John Floyd Carey, Sr., was found guilty by a jury of arson, 18 U.S.C. § 844(i), the
use of fire to commit a felony, 18 U.S.C. § 844(h), and four counts of mail fraud in
violation of 18 U.S.C. § 1341. The District Court sentenced him to 183 months in prison

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and three years of supervised release, a special assessment of $600, and restitution in the
amount of $500. Carey challenges his conviction, contending that two jurors deliberated
prematurely and another spoke with a non-juror about the trial, and the court did not
adequately investigate the impropriety. Carey also raises evidentiary challenges,
contending his expert witnesses were improperly questioned about a report prepared by
another, non-testifying expert. Also, he contends a letter from the insurance company
denying coverage was prejudicial and should not have been admitted into evidence. We
will affirm.
I
On October 11, 2001, shortly after 9:45 in the morning, John Floyd Carey, Sr., set
fire to Carey’s Country Store, his business in Sinnemahoning Pennsylvania. Carey owned
the store with his then wife, Janice, who separated from her husband four days before the
fire. Carey’s Country Store was a two-story structure with a one-story addition attached
on the south side. There was also a garage on the property, and gas pumps were located
outside.
The morning of the fire, two technicians were on the property to take water
samples for an environmental remediation system, which was needed to clean up a
gasoline leak. They left the property between 9:30 and 9:40, while Carey was still there.
Carey remained on the property alone until around 9:45. At approximately 10:05, a
neighbor saw smoke rising from the roof of the one-story addition, but apparently mistook

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During a 2000 refinancing, the bank had required the Careys to include the other1
properties as collateral.
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the smoke for steam. Another passerby reported the fire at 10:18. Firefighters arriving at
the scene found smoke coming from the middle of the one-story, attached addition. The
doors into the building were blocked—one by an ice cream freezer, another by a stack of
newspapers, a third by some other object the firefighters could not identify.
Carey’s Country Store was a failing business. Payments on a bank loan had been
delinquent for several months, and on October 5, 2001, less than one week before the fire,
the bank had sent the Careys a letter informing them a foreclosure would be imminent if
payments were not made. The loan was secured not only by the store, but also by other
properties, including the family farm. Moreover, in the months before the fire, vendors1
began demanding payment in cash, refusing to extend credit to the Careys, and store
inventory dwindled. At the time of the fire, the Careys were $204,697 in debt, they had
delinquent or currently due bills of $28,250, and they had only $2,483 of funds available
to cover their obligations. In addition to these financial problems, the Pennsylvania
Department of Environmental Protection had required the installation of the remediation
system.
On April 30, 2002, Carey and his wife filed four proofs of loss with the Erie
Insurance Group. These claimed $380,450 in losses for the building, contents, loss of
income, and debris removal. In these proofs of loss, and during the insurance company’s

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investigation into the fire and the ensuing civil litigation over the denial of coverage,
Carey made several false statements about the fire and his involvement in it. For
example, during the investigation into the fire, Carey claimed he left the property on the
morning of the fire while the two technicians were still there. This would have
established that he was not alone on the property around the time the fire began. But
Carey’s account contradicted the technicians’ testimony and their logbooks, which
supported a finding that they left the property before Carey. In statements to insurance
company investigators, Carey claimed he was not aware the store was insured despite
meeting with an insurance agent approximately one month before the fire to discuss
renewing his policy. Carey also told investigators that potential buyers of the store were
coming to see the store on the morning of the fire. The only potential buyers he named,
however, were neighbors Delbert and Heather Baney who had informed Carey before the
fire that they would not be interested in purchasing the store. Moreover, Carey gave
several different explanations for the cause of the fire. Carey first blamed a neighbor for
setting the fire, then his wife and son. After submitting his insurance claim, in statements
made to insurance investigators, he suggested the fire was accidental, identifying an
electric malfunction involving a milk cooler receptacle as a possible cause. After
receiving Erie Insurance’s denial-of-claim letter, he began asserting the electric-
malfunction theory with more certainty and vigor, providing new details to support the
theory. Some of these new details, such as the presence of flammable liquids near the

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The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction2
to hear the appeal under 28 U.S.C. § 1291.
5
milk cooler, contradicted previous statements. Moreover, testimony at trial suggested the
milk cooler was functioning properly and was not plugged in near the origin of the fire.
The false statements were all made as part of a scheme to defraud Erie Insurance into
paying the insurance proceeds.
Carey was indicted and arrested. A jury convicted him of all charges, and he
appeals.2
II
Carey challenges his conviction on the ground that some juror communications
prior to deliberations were improper. Carey contends the District Court should have
investigated these communications, questioning jurors to determine if they had been
prejudiced. The court’s failure to do so, he claims, is ground for a new trial, even though
the questioning would have interrupted jury deliberations.
On the second day of jury deliberations, the District Court advised counsel of
potentially improper juror communications, involving both intra-jury communication and
extra-jury communication. The District Court held a hearing and called several court
personnel as witnesses. The jury clerk testified that approximately two weeks earlier,
during the trial, two to four jurors approached her, saying they had overheard two other
jurors discussing the case. The jurors who reported the incident apparently confronted the

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two prematurely deliberating jurors. The jury clerk reported the incident to the court’s
deputy clerk who immediately reminded the entire jury of their obligation not to discuss
the case until the official jury deliberations began. After the initial report, there was no
evidence suggesting any other premature deliberations took place.
Additionally, during a cellphone conversation, presumably with a non-juror, one of
the jurors spoke about the trial. The judge’s law clerk heard the juror refer to trial events
as a “soap opera” and “freak show,” or similar words, and may have heard the word
“sleazy.” No other jurors were in the area, and according to the law clerk, the juror did
not appear to be receiving information about the trial. In another instance, the law clerk
overheard the same juror say the words “not liable” into the phone, and the court reporter
overheard the same juror make a third statement on another occasion, saying the words
“order the defendant.” In these last two instances, it was not clear if the juror was
speaking about the trial. There was no evidence the juror ever received information from
outside sources about the trial. There is also no evidence the judge learned of these
communications or the premature deliberations until after the jury began their official
deliberations. After hearing the testimony and arguments from the parties, the judge
decided not to investigate further.
Competing interests are implicated by a judge’s intrusion into jury deliberations.
On the one hand, juror misconduct—including premature discussion of the trial and
influences from extra-jury sources—may interfere with the juror’s ability to fairly

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Because of the importance of jury deliberations, the limits of a district court’s3
discretion are different when evidence of misconduct arises during trial than when the
evidence arises during deliberations. Compare Resko, 3 F.3d at 690, 694 (holding that
upon a showing of “unequivocal proof” of jury misconduct discovered during the trial, a
district court may not abrogate its duty to find, as a factual matter, whether the jury has
been prejudiced), with Boone, 458 F.3d at 329 (“[W]here substantial evidence of jury
misconduct . . . arises during deliberations, a district court may, within its sound
discretion, investigate the allegations through juror questioning or other appropriate
means.”).
7
consider all the evidence after it has been presented. See United States v. Resko, 3 F.3d
684, 688–90 (3d Cir. 1993) (providing reasons why premature deliberations are
prohibited); id. at 690 (describing an extra-jury influence as “a far more serious threat”
than premature discussions among jurors). On the other hand, “the secrecy of
deliberations is critical to the success of the jury system,” United States v. Boone, 458
F.3d 321, 329 (3d Cir. 2006), and “a district court should be more cautious in
investigating juror misconduct during deliberations than during trial,” id. Accordingly,
when a district court discovers substantial evidence of juror misconduct during
deliberations, it may, at its discretion, investigate the allegations. Id.; see also United3
States v. Kemp, 500 F.3d 257, 301 (3d Cir. 2007) (“[T]he legal standard is clear: a district
court may investigate allegations of juror misconduct when presented with ‘substantial
evidence’ of that misconduct” during deliberations; its response is reviewed for abuse of
discretion.).
In this case, there was some evidence of juror misconduct in the form of the
testimony about premature intra-jury deliberations and at least one extra-jury cellphone

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discussion. The court had instructed the jury: “I’m telling you don’t discuss any evidence
in this case until you have heard the closing arguments of the lawyers and the Judge’s
instructions on the law, then you can discuss it.” The court also instructed, “You should
not discuss this case or the witnesses or the evidence in any way among yourselves until
after it’s been turned over to you for your deliberation.” The testimony supported the
conclusion that a jury member provided casual commentary about the trial to a nonjuror
in a cellphone conversation, but not that any jury member received information about the
trial from sources outside the trial process. The evidence of premature jury deliberation
revealed a departure from the preferred process, but it did not compel the conclusion that
the jury or any of its members would be incapable of carrying out their duties. See Resko,
3 F.3d at 690 (writing that premature jury deliberations violate “the proper process for
jury decisionmaking,” but provide “no reason to doubt that the jury based its ultimate
decision only on evidence formally presented at trial”); id. at 695 (“[W]e are unwilling to
assume the existence of prejudice because we are far less certain that premature
deliberations will lead to prejudice in every, or nearly every, instance.”). The District
Court was in “the best position to evaluate what kind of investigation the circumstances
demanded.” Kemp, 500 F.3d at 302. Under the facts in this case, it was not an abuse of
discretion for the court to conclude a further investigation was not warranted in light of
the ongoing deliberations.
III

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We review the District Court’s evidentiary rulings for abuse of discretion. United4
States v. Olhovsky, 562 F.3d 530, 543 (3d Cir. 2009). To the extent the evidentiary
rulings depend on interpretations of the Federal Rules of Evidence, we exercise plenary
review. Id.
9
Carey called two expert witnesses to testify at trial, Mr. Leksell and Mr.
Rapperport. These witnesses supported Carey’s theory that an electrical source may have
ignited the fire. Carey contends the District Court erred by allowing the prosecution to
ask his expert witnesses questions about the report of James M. Tsikalas, a prosecution
expert who was not called to testify. Tsikalas had investigated the scene two days after4
the fire, whereas the defense experts did not conduct an examination until several months
later. The reports of the defense experts referred to the Tsikalas’s report extensively, and
their testimony made clear they had read and reviewed the Tsikalas report, accepting
some of its conclusions, including the determination of where the fire started, and
rejecting others, such as the cause of the fire. Part of the reason the experts had rejected
Tsikalas’s conclusion about the cause of the fire, the prosecution claimed at trial, was
they had accepted facts as told to them by Carey, months after the fire, about the location
of a milk cooler receptacle and where it was plugged in.
The two defense experts testified four days apart. The day after the second
defense expert testified, the District Court issued a limiting instruction, explaining to the
jurors that the information contained in the Tsikalas report should only be used to assess
the testimony of defense experts Leksell and Rapperport.

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According to Carey’s own experts, Tsikalas’s report was a type reasonably relied5
upon by experts in the field because it occurred soon after the fire. See Fed. R. Evid. 703.
10
Federal Rule of Evidence 703 provides,
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be admitted.
And Rule 705 states,
The expert may testify in terms of opinion or inference and give reasons therefor
without first testifying to the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to disclose the underlying
facts or data on cross-examination.
These rules “place[] the burden of exploring the facts and assumptions underlying the
testimony of an expert witness on opposing counsel during cross-examination.” Stecyk v.
Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002) (citing Ratliff v. Schiber
Truck Co., 150 F.3d 949, 955 (8th Cir. 1998)). Both of Carey’s expert witnesses
discussed the Tsikalas report in their own expert reports and in their testimony at trial.
The defense experts, who did not review the scene of the fire soon after it occurred, based
many of their opinions on the facts found by Tsikalas’s early investigation and included in
his report. Accordingly, the Tsikalas report was a basis for the opinions of the defense5
experts. See Ratliff, 150 F.3d at 955. The defense experts did not agree with all
Tsikalas’s conclusions, but their disagreement does not negate their reliance on his report.
See id. (noting the disagreement between a testifying expert and the author of the report

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Defendant contends we should follow In re Hanford Nuclear Reservation Litigation,6
534 F.3d 986, 1011–12 (9th Cir. 2008), which he believes dictates a result different from
the one we reach. In Hanford Nuclear Reservation Litigation, a plaintiff expert witness,
Dr. Davies, relied on dosage estimates of Dr. Ruttenber, an expert witness who did not
testify, but Dr. Davies never read or relied upon the deposition transcript of Dr.
Ruttenber. Id. On cross-examination, a defense lawyer asked Dr. Davies about testimony
Dr. Ruttenber gave in his deposition—testimony that demonstrated a disagreement
between Dr. Davies and Dr. Ruttenber. Id. at 1012. The court concluded it was error to
allow the questioning about Dr. Ruttenber’s deposition testimony. Id. This case differs
from Hanford because the defense experts read and relied on a single source: the Tsikalas
report.
The parties also contest whether references to the Tsikalas report in the prosecution’s7
closing argument were improper. They were not. Not only did the prosecution’s closing
argument limit the references to the Tsikalas report to the purposes for which the court
had allowed during Leksell and Rapperport’s testimony, it also reminded the jurors of the
court’s limiting instruction: “While we’re not asking you to consider the insurance
company’s findings and conclusions in this case with respect to the determination of guilt,
as the Court’s instruction clearly indicates, you can consider the fact that Rapperport and
Leksell viewed this apparently important information about the location of electrical
conductors and discounted it completely in favor of what the defendant told them” about
(continued...)
11
relied upon by the testifying expert). In this case, identifying the areas of disagreement6
was important. In areas in which they disagreed with Tsikalas, the prosecution showed,
Leksell and Rappaport relied on facts they learned from Carey. And Carey’s credibility
about the cause of the fire was a central issue in the trial. Accordingly, identifying the
areas of disagreement helped focus the jury on facts underlying Leksell and Rapperport’s
conclusions that were suspect. The District Court did not abuse its discretion by allowing
the prosecution to question the defense experts about these facts and bases of their
opinions. Moreover, the court’s limiting instruction cautioned the jury against using the
information from the Tsikalas report improperly, and it was not untimely.7

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(...continued)7
the location of the milk cooler receptacle.
Ordinarily, we review evidentiary rulings for abuse of discretion. See supra note 4.8
The District Court here overruled Carey’s objection to the evidence, but because its
reasons for doing so are not apparent, we exercise plenary review. See United States v.
Sriyuth, 98 F.3d 739, 745 & n.9, 747–48 (3d Cir. 1996) (“Where . . . the district court
fails to explain its grounds for denying a Rule 403 objection and its reasons for doing so
are not otherwise apparent from the record, there is no way to review its discretion.”
(internal quotation marks omitted)). We consider whether the probative value of the letter
was “substantially outweighed by the danger of unfair prejudice . . . .” Fed. R. Evid. 403.
Mail fraud requires the prosecution to show (1) a scheme or artifice to defraud, (2)9
participation by the defendant with specific intent to defraud, and (3) use of the mail in
furtherance of the scheme. United States v. Copple, 24 F.3d 535, 544 (3d Cir. 1994).
12
IV
Finally, Carey challenges the admission of a letter the Erie Insurance Group sent
him in August 2002. The letter denied insurance coverage, stating that Erie Insurance had
concluded the fire was set by an insured. The parties stipulated at trial that the letter was
not being offered for the truth of the matter asserted—that Carey or his wife set the fire.
Carey contends on appeal that the letter’s reference to the cause of the fire was
prejudicial. Because an Erie Insurance employee had already testified that the company
denied Carey’s claim, he contends, the evidence should have been excluded.8
Carey was on trial for arson, using a fire to commit a felony, and for insurance
fraud. He allegedly made fraudulent statements both before the denial-of-coverage letter
and after, during civil litigation against the insurance company. His statements about the
cause of the fire were central to these charges of fraud. Early on, Carey had claimed a9

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Carey also contends the letter was not relevant. But as noted in the text, it had a10
“tendency to make the existence of any fact that is of consequence . . . more probable . . .
than it would be without the evidence.” Fed. R. Evid. 401.
13
neighbor or his wife or son had caused the fire. But after submitting his proof of claim,
Carey began to suggest the fire may have been caused by an electric malfunction. And
after receiving the denial-of-coverage letter, Carey asserted the electric-malfunction
theory with more certainty. He began supplying new information to support the
theory—including suggesting flammable liquids were stored nearby, which he had
previously denied. The evolution of Carey’s story shifted the focus away from him by
identifying a non-human cause of the fire. The letter helps explain why he would change
his story: to shift attention away from himself so he could recover the insurance
proceeds. Evidence that Erie Insurance denied the claim, without explaining the reason,
would not have been probative. Independent of the truth of the matter asserted, the letter
helps explain the pattern of false statements, which is relevant to establishing the scheme
to defraud and also Carey’s mental state. The evidence’s probative value was “not10
substantially outweighed by the danger of unfair prejudice.” See Fed. R. Evid. 403.
Moreover, the parties’ stipulation that the evidence was not admitted for the truth of the
matter asserted further limited any possible prejudice to Carey.
V
For the foregoing reasons, we will affirm the judgment of the District Court.

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