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UNITED STATES v. ROTHBERG

August 14, 1995

UNITED STATES OF AMERICA
v.
MICHAEL ROTHBERG



The opinion of the court was delivered by: EDMUND V. LUDWIG

 Ludwig, J.

 August 14, 1995

 Following a jury verdict of guilty, defendant Michael Rothberg moves for judgment of acquittal or for a new trial. Fed.R.Crim.P. 29, 33. *fn1"

 On February 1, 1995 defendant was indicted for destruction of property by means of fire, 18 U.S.C. § 844, and conspiracy to commit mail fraud, 18 U.S.C. § 371. The specific charge was that on February 3, 1990 he conspired to set fire to "Pearl's," an after-hours club located in center-city Philadelphia, in order to obtain insurance money. The club was "owned" by defendant and was managed, at the time, by Charles Supplee. *fn2" The government's theory was that defendant offered to pay Supplee to set the building on fire - the fire insurance policy covering the club having been re-issued, at defendant's request, in the name of his grandmother. Defendant had assigned the club's assets to his grandmother as security for a loan. Supplee, after two juries failed to reach a verdict in his case, was convicted of the arson. He did not testify at defendant's trial.

 Defendant maintained that there was no credible evidence linking him to the fire and that it probably was the handiwork of two vindictive former employees. He did not contest the intentional origin of the fire, which had been ignited by using Duraflame logs.

 I.

 There was substantial evidence to support the guilty verdict. Much, although not all of the government's evidence, was indirect. The club had been experiencing financial difficulties; there were citation problems with the Liquor Control Board; and the property owner had demanded a large increase in rent. Trial, 3/29/95, n.t. 182, 202-203; Trial, 3/28/95, n.t. 27-28, 92. Weeks before the fire, defendant raised the fire insurance coverage from $ 150,000 to $ 250,000 having had the contents inventoried the summer before. Trial, 3/28/95, n.t. 134, 198-99.

 Some months beforehand, defendant had spoken about the possibility of a fire in a conversation with a former club manager. Id. at 137. In the presence of his now estranged wife, he also discussed the same subject with his attorney. Trial, 3/29/95, n.t. 222-26.

 Late on the night of the fire, defendant had the club's locks changed and made certain that Supplee had the only copies of the key. Trial, 3/28/95, n.t. 220. Supplee was the last person known to be present after the club closed, the fire having been started at about six a.m. Id. at 78-89, 221; Trial, 3/27/95, n.t. 78. About a month thereafter, Supplee informed a friend of his that he had set the fire. *fn3" Trial, 3/29/95, n.t. 169-71. After the fire, defendant avoided law enforcement investigators and advised the club's employees not to talk to the police. Id. at 229-230, 232-233.

 II.

 At trial defendant objected to Supplee's alleged admission. He again argues that reception "of [this] testimony which included a hearsay declaration of an out of court witness was clear error." Motion at 1.

 That portion of Supplee's declaration that was received qualified under the hearsay exception as an admission against penal interest under Fed. R. Evid. 804(b)(3). Under this Rule, such statements are not excluded as hearsay if the declarant is unavailable to testify:

 
statements which . . . at the time of [their] making . . . so far tended to subject the declarant ...

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