PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 06-4876
BARBARA CORBY MARTIN, a/k/a
Barbara Balsley,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(3:05-cr-00028-nkm)
Argued: February 1, 2008
Decided: April 15, 2008
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Niemeyer and Judge Duncan joined.
COUNSEL
ARGUED: John Edward Davidson, DAVIDSON & KITZMAN,
P.L.C., Charlottesville, Virginia, for Appellant. Jean Barrett Hudson,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States
Attorney, Roanoke, Virginia, for Appellee.
2 UNITED STATES v. MARTIN
OPINION
TRAXLER, Circuit Judge:
Barbara Corby Martin appeals her convictions and sentences for
arson, see 18 U.S.C.A. § 844(i) (West 2000); using fire to commit
mail fraud, see 18 U.S.C.A. § 844(h)(1) (West 2000); and mail fraud,
see 18 U.S.C.A. § 1341 (West Supp. 2007). Martin argues that the
evidence was insufficient to support the jury’s conclusion that she
caused the fire upon which her arson and using fire convictions were
based, and she contends that the district court imposed multiple pun-
ishments for the same offense in violation of the Double Jeopardy
Clause. As explained below, we affirm the jury’s verdict and the sen-
tence imposed by the district court.
I.
Because Martin challenges the sufficiency of the evidence to sup-
port her convictions, we summarize the evidence presented at trial, as
well as the inferences flowing therefrom, in the light most favorable
to the government. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc).
From 1998 through 2003, Martin owned and operated the
Swissway Market, a small convenience store located in Scottsville,
Virginia, that was damaged by a fire in October 2003. At the time of
the fire, both Martin’s business and her personal financial affairs were
in significant distress.
In 2003, the Swissway Market operated at a net loss of approxi-
mately $165,487, fell in arrears on its lease (and was three months
late at the time of the fire), routinely issued checks that were refused
for insufficient funds, and lost check writing privileges on its Sam’s
Club account. Additionally, because of continuing overdraft prob-
lems, the Albemarle First Bank closed Swissway Market’s business
account. Within a few weeks of the fire, the Swissway Market lacked
sufficient operating funds, rendering it unable to pay suppliers and
vendors, stock its shelves, or compensate its employees. Heinz Gadi-
UNITED STATES v. MARTIN 3
ent, who owned and leased the building to the Swissway Market,
observed shortly before the fire that the freezer which was used to
store meats and deli items was covered with butcher paper and closed
off to the public.
Individually, Martin owed approximately $109,000 in unpaid state
taxes at the time of the fire, including interest and penalties, as well
as at least $17,000 in unpaid federal taxes. In the months leading up
to the fire, Martin consulted David Way, a CPA, to help her negotiate
with Virginia tax authorities regarding Virginia’s tax amnesty date on
November 3, 2003. Pursuant to this tax amnesty plan, Virginia for-
gave various penalties and liabilities if the debtor arranged to satisfy
the debt before November 3. The fire, as it turned out, occurred about
one week before the amnesty date.
There were numerous additional problems as well. Martin, having
failed to pay her municipal business license fees or meal taxes for a
number of years, was threatened with legal action in September 2003.
Collectively, Martin and the Swissway Market owed $119,264 in
debts over and above any available funds.
With her financial problems mounting, Martin explored selling the
business and, a few months before the fire, located a potential buyer.
Unfortunately, the sale of her business never came to fruition, and
Martin openly expressed her dislike of the business and the town and
her desire to "torch" the building "if she had the guts." J.A. 134. At
one point, Martin hinted that "it’s not going to be long and I’m not
going to have to worry about any of it anyway." J.A. 135. About two
weeks before the fire, in fact, Martin removed her computer from the
store. Later, she told a friend that certain items of furniture had been
removed from the store on the day before the fire.
On October 28, 2003, the day of the fire, Martin climbed into the
store’s loft, where various records, invoices and supplies were stored.
The loft was accessible to Martin and her employees only by use of
a free-standing ladder. Shortly before lunch, Swissway Market
employee Gloria Poe held the ladder in place for Martin, who indi-
cated she needed to get paper bags from the loft for the lunch crowd.
When Martin climbed back down, however, she did not have any
bags.
4 UNITED STATES v. MARTIN
Several hours later, while employee Kimberly Martin was closing
the store for the evening, Martin returned to the Swissway Market,
which had never happened before while Kimberly was working, and
indicated that she was looking for a document. Kimberly continued
her close-of-business routine, unplugged the pizza ovens and other
appliances, and cleaned and turned out the lights. When Kimberly left
at 10:25 p.m., the power to the compressors and freezer was off, the
loft door was closed, and the ladder used to access the loft had been
returned to its place outside of the building. Martin was still on the
premises along with her boyfriend, Tom Snoddy, who drove her to
the store. Snoddy entered the store at some point but returned to the
car to wait for Martin, who exited the store at approximately 10:30
p.m. Martin then told Snoddy she forgot to turn off the lights and
returned by herself to the store for fifteen to twenty minutes. After she
returned to the car, Snoddy drove around the building to inspect a
security camera that he had installed; however, Martin became agi-
tated and told Snoddy they had to leave immediately so she could
search for a tax document at home.
At approximately 11:15 p.m., a passerby noticed a fire burning
through the roof of the Swissway Market and called 911. When fire-
fighters arrived at the scene fifteen minutes later, the fire was raging
twenty feet above the roof line. Firefighters noticed that the door to
the loft was partially open and that the ladder was back inside and
positioned to provide access to the loft. Moreover, at some point that
night, Martin called Dawn Detamore, a close friend, to tell her about
the fire. During the conversation, Martin told Detamore that she had
been in the loft that evening to search for some papers. In a subse-
quent conversation, however, Martin tried to convince Detamore that,
in fact, Martin had said the opposite — that she "didn’t go into the
loft looking for the papers." J.A. 283.
Shortly after the fire, Martin filed a claim on a business owner’s
policy issued by Hanover Insurance Company that covered the con-
tents of the Swissway Market and any income lost as a result of a cov-
ered event. Martin mailed the claim notice and Hanover, on
November 7, 2003, issued Martin a check for $25,000. Martin later
filed an official proof of claim, including her sworn statement that the
"loss did not originate by any act, design or procurement on the part
of the insured or this affiant." J.A. 38. The policy limit was $105,000,
UNITED STATES v. MARTIN 5
and Martin expected to receive the balance of these proceeds at some
point in the future.
Following the fire, Martin and Way discussed her using the insur-
ance proceeds to resolve her tax liability with the Commonwealth of
Virginia. Way, who was "expecting [that] there was going to be some
money available," J.A. 76, tried to broker a deal whereby Virginia
would accept a discounted amount in satisfaction of the entire
$109,000 tax debt. Specifically, Way hoped Virginia would accept a
lump sum payment of $80,000, the remainder of the insurance pro-
ceeds. Martin told Way that the initial $25,000 payment from Hano-
ver was used to pay her employees’ wages. In fact, Martin transferred
$17,000 to her home equity line at Albemarle First Bank and $8,000
to Detamore, who then issued a check in approximately the same
amount to Martin’s mortgage company.
Agents from the Bureau of Alcohol, Tobacco, Firearms, and Explo-
sives ("ATF") investigated the fire jointly with local officials. Special
Agent Hine, who examined the scene within a week of the fire, testi-
fied as an expert on the subject of the cause and origin of fires. Agent
Hine concluded from examining the remains of the building that the
fire started in the loft area of the Swissway Market. He noted that
there was very little fire damage to the contents in the lower part of
the store; that any significant damage was caused by the upper portion
of the structure collapsing and falling down; and that the soot and
burn markings were far heavier in the upper part of the structure.
As for the cause of the fire, Agent Hine ultimately classified the
fire as "incendiary," i.e., one that was intentionally started. Although
the cause of the fire was classified as "undetermined" when investiga-
tors first left the scene, this was merely an initial and preliminary
classification. Agent Hine explained that, "[a]s a fire investigator, [I]
want to try to get every piece of information [I] can from witnesses,
from the fire scene, any forensic analysis that is done before [I] make
a final determination." J.A. 338. Once the investigation was complete,
Hine concluded that the cumulative facts demonstrated that someone
set the fire intentionally: the loft door was open during the fire and
the ladder was in place to provide access to loft, where the fire
started; no ignitable liquids were stored in the loft that could have
accidently ignited; an electrical engineer examined the scene, deter-
6 UNITED STATES v. MARTIN
mined the power to the compressors and the lighting in the loft was
off during the fire and ruled out an electrical cause; and Martin had
been inside of the store mere moments before the fire was observed
20 feet above the roof line.
In December 2003, investigators interviewed Martin for the first
time. Martin claimed that she had not been in the loft at the Swissway
Market for two years and had not gone into the loft on the night of
the fire either. She also suggested that she had experienced problems
with the circuit breakers. Martin claimed that her business was
improving and generally doing well, denied that she was experiencing
financial problems and told agents that her tax problems with Virginia
"had been resolved and . . . taken care of," J.A. 115, and that the IRS
actually owed her a refund of $10,000. In March 2004, investigators
conducted a follow-up interview during which Martin revealed new
claims, most notably that Tom Snoddy stole her keys to the Swissway
Market right before the fire.
In light of the evidence presented by the ATF investigators and
Martin’s clear financial motive to commit arson for the insurance pro-
ceeds,1 a jury convicted Martin on all five counts charged in her
indictment: malicious damage to a building by fire in violation of 18
U.S.C.A. § 844(i); using fire to commit another felony, namely mail
fraud, in violation of 18 U.S.C.A. § 844(h); mail fraud in violation of
18 U.S.C.A. § 1341; and two counts of making a false material state-
ment to ATF investigators (one count based on her assertion that she
had not been in the loft and one count based on her claim that she was
not experiencing financial problems), in contravention of 18 U.S.C.A.
§ 1001(a)(2) (West 2000 & Supp. 2007).
1
The record contains evidence suggesting that the fire was not the
result of arson. For example, Richard Chance, a fire scene investigator
for insurance companies, appeared at trial on behalf of Martin and opined
that he did not see any evidence of an incendiary origin; however, he
acknowledged that he knew nothing about Martin’s dire financial straits
and admitted such information would have influenced his review of the
evidence. Martin also presented expert testimony from an electrical engi-
neer who indicated he could not rule out an accidental cause of the fire.
Given that we must review the evidence in a light most favorable to the
government, we need not dwell on this testimony.
UNITED STATES v. MARTIN 7
Prior to sentencing, Martin moved to dismiss Count II of the indict-
ment — that she used fire to commit the felony of mail fraud — argu-
ing that the elements of this charge appear in Counts I (arson) and III
(mail fraud). Martin contended that a sentence imposed for the con-
viction on Count II would essentially subject her to multiple punish-
ments for conduct already being punished through her convictions on
Counts I and III. The district court rejected this argument and
imposed a sentence of 60 months each on Counts I and III, and 60
months each on Counts IV and V, all to run concurrently. On Count
II, the district court concluded that it was required to impose a sen-
tence of 120 months to run consecutively to the sentences imposed on
all other counts.
II.
Martin challenges the sufficiency of the evidence to support the
jury’s conclusion that she committed arson as charged in Count I or
"used fire" as charged in Count II.2 Under the standard of review
established in Glasser, we must sustain the jury’s verdict "if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it." 315 U.S. at 80. We are prohibited from "over-
turn[ing] a substantially supported verdict merely because [we] . . .
determine[ ] that another, reasonable verdict would be preferable.
Rather, we shall reverse a verdict if the record demonstrates a lack of
evidence from which a jury could find guilt beyond a reasonable
doubt." Burgos, 94 F.3d at 862; see United States v. Murphy, 35 F.3d
143, 148 (4th Cir. 1994) (explaining that it is within the province of
2
In the Statement of Issues set forth in her opening brief, Martin also
purports to raise this evidentiary challenge as to her conviction on Count
III for mail fraud. Martin’s argument, however, is limited to whether the
evidence was sufficient for the jury to conclude that Martin intentionally
caused the fire, and she presents no sufficiency of the evidence challenge
to the jury’s conclusion that she committed mail fraud. Martin’s argu-
ment was similarly circumscribed at oral argument. Accordingly, we
need not address the sufficiency of the evidence as it concerns Martin’s
mail fraud conviction on Count III. See United States v. Al-Hamdi, 356
F.3d 564, 571 n.8 (4th Cir. 2004) ("It is a well settled rule that conten-
tions not raised in the argument section of the opening brief are aban-
doned.").
8 UNITED STATES v. MARTIN
the jury, not the appellate court, to "resolve[ ] any conflicts in the evi-
dence presented, and if the evidence supports different, reasonable
interpretations, the jury decides which interpretation to believe")
(citation omitted). Accordingly, in the context of a challenge to the
sufficiency of the evidence, our task as an appellate court is simply
to determine whether, in light of the evidence presented at trial, "the
jury could rationally have reached a verdict of guilt beyond a reason-
able doubt." United States v. Powell, 469 U.S. 57, 67 (1984). Because
we consider the evidence in the light most beneficial to the govern-
ment, granting "the government the benefit of all reasonable infer-
ences from the facts proven to those sought to be established," United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), Martin must
carry an imposing burden to successfully challenge the sufficiency of
the evidence, see United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997).
Both Count I (arson) and Count II (using fire to commit mail fraud)
required the government to prove that Martin burned down the
Swissway Market. The federal arson statute, set forth in 18 U.S.C.A.
§ 844(i), requires the government to prove "that the defendant: (1)
maliciously; (2) damaged or destroyed a building, vehicle, or other
real or personal property; (3) by means of fire or explosive; and (4)
the building [or other] property was used in interstate or foreign com-
merce or in any activity affecting interstate or foreign commerce."
United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996).3 The malice
requirement imposed by § 844(i) "is satisfied if the defendant acted
intentionally or with willful disregard of the likelihood that damage
or injury would result from his or her acts." Id. at 948.
In section 844(h)(1), Congress directs that the punishment for any
3
In relevant part, section 844(i) provides:
Whoever maliciously damages or destroys, or attempts to dam-
age or destroy, by means of fire or an explosive, any building,
vehicle, or other real or personal property used in interstate or
foreign commerce or in any activity affecting interstate or for-
eign commerce shall be imprisoned for not less than 5 years and
not more than 20 years . . . .
18 U.S.C.A. § 844(i).
UNITED STATES v. MARTIN 9
other felony be enhanced if the government can prove that the defen-
dant (1) "use[d] fire or an explosive" (2) "to commit [the] felony." 18
U.S.C.A. § 844(h)(1).4 The "use" of fire covered by this provision is
not limited to arson and encompasses, for example, the use of fire to
intimidate or threaten another person. See, e.g., United States v.
Wildes, 120 F.3d 468, 470 (4th Cir. 1997) ("Unquestionably, setting
fire to a wooden cross as a means of intimidation constitutes the use
of fire . . . within the plain meaning of § 844(h)(1).").
Here, of course, the government’s evidence that Martin "used fire"
and committed arson was the same. Martin contends that this evi-
dence failed to prove a causal link between her and the fire. Because
the government did not present the type of forensic evidence that in
and of itself suggests arson, such as building materials with trace
amounts of liquid accelerants, Martin complains that the government
failed to adduce any evidence that the fire was the result of arson as
opposed to an accidental source, such as faulty wiring. Therefore,
Martin contends that the jury convicted her solely on the insufficient
evidentiary basis of her motive to torch the building and her presence
at the building near the time of the fire. See United States v. Yoakam,
116 F.3d 1346, 1350 (10th Cir. 1997) (concluding that even if the
government had proven defendant had a motive to commit arson, evi-
dence was insufficient where defendant’s only link to arson was testi-
mony that "he was the last one out of the building, just moments
behind his employees").
4
Section 844(h)(1) provides:
(h) Whoever—
(1) uses fire or an explosive to commit any felony which
may be prosecuted in a court of the United States, . . . shall,
in addition to the punishment provided for such felony, be
sentenced to imprisonment for 10 years. . . . Notwithstanding
any other provision of law, the court shall not place on pro-
bation or suspend the sentence of any person convicted of a
violation of this subsection, nor shall the term of imprison-
ment imposed under this subsection run concurrently with
any other term of imprisonment including that imposed for
the felony in which the explosive was used or carried.
18 U.S.C.A. § 844(h)(1).
10 UNITED STATES v. MARTIN
Martin’s primary complaint is that there is no direct evidence that
she caused the fire. As we have observed repeatedly, "circumstantial
evidence is not inherently less valuable or less probative than direct
evidence" and may alone support a guilty verdict. United States v.
Williams, 445 F.3d 724, 731 (4th Cir. 2006); see Holland v. United
States, 348 U.S. 121, 140 (1954). And this is no less true in the con-
text of arson. When the government offers evidence of the defen-
dant’s "motives to set the fire, his plan and preparation to do so, his
opportunity to carry out the plan and evidence that [the fire did not
occur] accidentally," direct evidence of arson is not necessary to sus-
tain a conviction under § 844(i). United States v. Lundy, 809 F.2d
392, 396 (7th Cir. 1987); see United States v. Schnapp, 322 F.3d 564,
572-73 (8th Cir. 2003).
As our recitation of the evidence makes abundantly clear, there is
plenty of strong circumstantial evidence that would permit a reason-
able jury to conclude that Martin intentionally set the building ablaze.
In addition to the overwhelming evidence of Martin’s financial
motive to cause the fire, there was substantial circumstantial evi-
dence, unrelated to motive, establishing that Martin ignited the fire.
First, there was Martin’s opportunity to set the fire and her proximity
to the fire when it began. Martin was alone in the store mere minutes
before the fire was seen by a passerby. Moreover, the evidence sug-
gested that Martin waited until her employees clocked out for the eve-
ning, then retrieved the access ladder from outside of her store,
opened the door to the loft and climbed into the loft — where the fire
originated — minutes before the fire was seen. Second, Martin lied
to investigators about her presence in the loft, claiming it had been
two years since her last visit, and she suggested to her friend Deta-
more that Detamore should not disclose that Martin had been in the
loft on the night of the fire. Third, the government presented expert
testimony that the fire had not been electrical in origin, that the
weather did not play a factor, and that there was no indication of
another accidental cause, such as the presence of flammable liquids
stored in the loft.
Viewing the evidence as a whole, we conclude that it was more
than sufficient to support Martin’s convictions. See Lundy, 809 F.2d
at 396 (concluding that evidence of arson was sufficient where the
defendant had motive and was alone in the store shortly before the
UNITED STATES v. MARTIN 11
fire, and where there was evidence that the fire was not an accident).
We therefore affirm the jury’s verdict on Count I and Count II.
III.
Martin next challenges her sentences for her convictions on Counts
I, II and III under the Double Jeopardy Clause of the Fifth Amendment.5
Martin argues that because she was sentenced both for committing
arson, i.e., "maliciously damag[ing] . . . by means of fire . . [a] build-
ing," 18 U.S.C.A. § 844(i), and for mail fraud, her separate sentence
for using fire to commit mail fraud in violation of § 844(h)(1)
amounted to multiple punishments for a single course of criminal
activity.
The constitutional guaranty established by "the Double Jeopardy
Clause protects against three distinct abuses: a second prosecution for
the same offense after acquittal; a second prosecution for the same
offense after conviction; and multiple punishments for the same
offense." United States v. Halper, 490 U.S. 435, 440 (1989); see
United States v. Bowe, 309 F.3d 234, 238 (4th Cir. 2002). The ques-
tion here implicates only one of these double jeopardy protections —
the prohibition against "cumulative punishments for the same offense
in a single criminal trial." United States v. Goodine, 400 F.3d 202,
206 (4th Cir. 2005) (internal quotation marks omitted). "[I]n the mul-
tiple punishments context, th[e] interest" protected by the Double
Jeopardy Clause "is limited to ensuring that the total punishment did
not exceed that authorized by the legislature." Jones v. Thomas, 491
U.S. 376, 381 (1989) (internal quotation marks omitted). The double
jeopardy protections provided by the Fifth Amendment "serve[ ] prin-
cipally as a restraint on courts and prosecutors. The legislature
remains free under the Double Jeopardy Clause to define crimes and
fix punishments; but once the legislature has acted courts may not
impose more than one punishment for the same offense . . . ." Brown
v. Ohio, 432 U.S. 161, 165 (1977); cf. United States v. Handford, 39
F.3d 731, 735 (7th Cir. 1994) ("At the root of the limited impact of
the Double Jeopardy Clause on the legislature is the principle that the
5
The Double Jeopardy Clause protects "any person [from] be[ing] sub-
ject for the same offence to be twice put in jeopardy of life or limb." U.S.
Const. amend. V.
12 UNITED STATES v. MARTIN
power to define criminal offenses and prescribe punishments imposed
upon those found guilty of them belongs solely to the legislature.").
Thus, the guarantee against multiple punishments serves simply to
ensure that the defendant’s sentence is authorized by Congress. If the
punishment is authorized by statute, there can be no double jeopardy
violation. See Missouri v. Hunter, 459 U.S. 359, 368-69 (1983); see
also United States v. Chandia, 514 F.3d 365, 2008 WL 186180 at *3
(4th Cir. Jan. 23, 2008) ("When a single course of conduct violates
multiple statutes, multiple punishments may be imposed without vio-
lating the Double Jeopardy Clause, if that is what Congress
intended."). In the end, "[o]ur only task is to determine whether Con-
gress intended to impose multiple punishments." Chandia, ___ F.3d
at ___.
As in any case requiring us to sort out congressional intent, we
begin with the statutory text itself. See Albernaz v. United States, 450
U.S. 333, 336 (1981). "Congress ordinarily does not intend to punish
the same offense under two different statutes. Accordingly, where two
statutory provisions proscribe the ‘same offense,’ they are construed
not to authorize cumulative punishments in the absence of a clear
indication of contrary legislative intent." Whalen v. United States, 445
U.S. 684, 692 (1980). Of course, if the statutory language allows mul-
tiple punishments, then there is no double jeopardy problem and we
need not go any further. See Hunter, 459 U.S. at 368-69 ("Where
. . . a legislature specifically authorizes cumulative punishment under
two statutes, regardless of whether those two statutes proscribe the
‘same’ conduct . . . , a court’s task of statutory construction is at an
end and the prosecutor may seek and the trial court or jury may
impose cumulative punishment under such statutes in a single trial.").
If, however, the statute provides no definitive indication of con-
gressional intent, we apply the rule of statutory construction pre-
scribed by the Supreme Court in Blockburger v. United States, 284
U.S. 299 (1932). Under Blockburger, "where the same act or transac-
tion constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of an additional fact which
the other does not." 284 U.S. 299, 304 (1932). If the elements of each
criminal statute "do not overlap, then multiple punishments are pre-
UNITED STATES v. MARTIN 13
sumed to be authorized." United States v. Terry, 86 F.3d 353, 356 (4th
Cir. 1996).
It is unnecessary for us to resort to the Blockburger test to deter-
mine whether Congress authorized cumulative punishments for Mar-
tin’s mail fraud conviction and her conviction for use of fire to
commit mail fraud. Under section 844(h)(1), Congress clearly con-
templated that the use of fire to commit a felony would enhance the
defendant’s punishment for the predicate felony:
Whoever . . . uses fire . . . to commit any felony . . . shall,
in addition to the punishment provided for such felony, be
sentenced to imprisonment for 10 years. . . . [T]he term of
imprisonment imposed under this subsection [shall not] run
concurrently with any other term of imprisonment.
18 U.S.C.A. § 844(h)(1) (emphasis added); see United States v. Patel,
370 F.3d 108, 115 (1st Cir. 2004) ("The statute plainly provides that
a defendant who uses fire in the commission of a federal felony will
be punished cumulatively for the predicate felony and for using fire
to commit that felony." (emphasis in original)). Martin wisely con-
cedes this point, as she must, acknowledging that "Congress did
intend to add a second consecutive punishment for violating 18
U.S.C. § 844(h) in addition to the mail fraud in violation of 18 U.S.C.
§ 1341, because it said so." Br. of Appellant at 26; see Patel, 370 F.3d
at 115 ("Because Congress explicitly authorized cumulative punish-
ments for the predicate felony and using fire to commit the predicate
felony, there was no Double Jeopardy violation in sentencing [the
defendant] for both mail fraud and using fire to commit mail fraud
. . . ."). Moreover, Martin does not suggest that the sentences imposed
for mail fraud and arson, which are wholly separate offenses, create
double jeopardy concerns either. See Patel, 370 F.3d at 116 n.6.
Essentially, then, Martin acknowledges that there would have been no
double jeopardy violation had she been sentenced for either (1) mail
fraud and using fire to commit mail fraud or (2) mail fraud and arson.
In Martin’s view, the problem exists because the government
charged her, based on the same course of conduct, with both arson
and using fire to commit mail fraud. Martin contends that to discern
whether cumulative punishment under all three statutes is permissi-
14 UNITED STATES v. MARTIN
ble, we must compare the combined elements of the arson and mail
fraud offenses on the one hand with the elements of the using fire to
commit a felony offense on the other. According to Martin, she was
sentenced twice for the same offense because she received sentences
on the arson count and the mail fraud count, and then she received
another sentence for essentially those two offenses combined into the
single offense of using fire to commit mail fraud. We disagree.
Martin’s position is fundamentally flawed in that it assumes that
§ 844(i) (arson) and § 844(h)(1) ("us[ing] fire") punish the same con-
duct. Because an examination of the statutory language is inconclu-
sive, we must apply Blockburger to determine if these offenses are
"the same" for double jeopardy purposes. The fact that the same act
is being punished under both statutes is not important here because
"under the Blockburger test, whether two offenses are the same
depends on the elements of the crimes and not the similarity of the
underlying facts." United States v. LeMoure, 474 F.3d 37, 43 (1st Cir.
2007). The federal arson statute requires the government to prove that
the defendant "maliciously damage[d]" a "building" by "means of
fire." 18 U.S.C.A. § 844(i). The "malicious damage" element in the
arson statute is not an element of proof in the using fire statute.
Indeed, a "use" of fire under § 844(h)(1) need not result in damage or
destruction of property to violate the statute. See Wildes, 120 F.3d at
470 (holding that defendant used fire by lighting "a wooden cross as
a means of intimidation"). By contrast, § 844(h)(1) requires proof that
a defendant used fire to commit a felony — in this case, mail fraud.
Section 844(h)(1) incorporates the elements of the predicate mail
fraud felony, which in turn requires proof of the existence of a
scheme to defraud as well as the defendant’s use of the mails to fur-
ther the scheme. See United States v. Vinyard, 266 F.3d 320, 326 (4th
Cir. 2001). The arson statute does not include either of these ele-
ments.
In a substantially similar case, the First Circuit reached the same
conclusion, providing this sound analysis:
[T]here is no Double Jeopardy bar to imposing multiple
punishments for arson and using fire to commit mail fraud
because these are separate offenses under Blockburger.
Arson requires proof that a defendant, through the use of
UNITED STATES v. MARTIN 15
fire, damaged "a building . . . used in interstate commerce."
18 U.S.C. § 844(i). Using fire to commit mail fraud requires
proof that the defendant used the mails to further a scheme
to defraud. See 18 U.S.C. § 1341. Thus, arson requires proof
that fire damaged a building, which is not an element of
using fire to commit mail fraud. And using fire to commit
mail fraud requires proof that the defendant used the mails
to further a scheme to defraud, which is not an element of
arson.
Patel, 370 F.3d at 116 (emphasis in original).
Relying on United States v. Corona, 108 F.3d 565 (5th Cir. 1997),
Martin contends that because she was convicted of three offenses,
Blockburger requires that each offense contain an element not found
in either of the other offenses. Assuming for the sake of analysis that
Martin is correct that each statutory provision must contain an ele-
ment unique to it and not contained in the other provisions, we would
still reach the same conclusion. The First Circuit addressed precisely
this issue in precisely this context, concluding that all three offenses
were separate offenses even under Martin’s suggested approach:
Arson required proof that [the defendant] set fire to a build-
ing; mail fraud required proof that [the defendant] used the
mails to further a scheme to defraud; and using fire to com-
mit a felony required proof that [the defendant] used fire to
commit mail fraud. Thus, to gain the use of fire conviction
the government had to convince the jury of an additional
element not required for either arson or mail fraud: [the
defendant] committed arson in order to commit the mail
fraud. In other words, using fire to commit mail fraud
required the government to connect the arson to the mail
fraud. The statutory elements of arson and mail fraud can be
met in a single prosecution without the government connect-
ing the two crimes. Therefore, using fire to commit mail
fraud has an additional element which makes it a separate
offense from the combination of arson and mail fraud.
Patel, 370 F.3d at 117.
16 UNITED STATES v. MARTIN
We agree with the reasoning and result in Patel that the offense of
using fire to commit a felony includes an element of proof not
required in the crimes of arson or mail fraud. We conclude, therefore,
that the offenses charged in Counts I, II and III are separate offenses
under Blockburger and that Martin was not sentenced more than one
time for the same offense.6
IV.
For the reasons set forth above, we affirm Martin’s convictions and
sentences.
AFFIRMED
6
We also reject Martin’s argument that the district court erroneously
imposed her 10-year sentence under § 844(h) to run consecutively to her
sentence for the arson conviction because the statute refers only to felo-
nies involving explosives. See 18 U.S.C.A. § 844(h) ("[N]or shall the
term of imprisonment imposed under this subsection run concurrently
with any other term of imprisonment including that imposed for the fel-
ony in which the explosive was used or carried."). Martin’s argument is
foreclosed by circuit precedent. See United States v. Ramey, 24 F.3d 602,
610 (4th Cir. 1994), abrogated on other grounds, Jones v. United States,
529 U.S. 848 (2000).