United States v. Corona

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30238

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JOSEPH CORONA, III; LINDSEY McDONALD,
Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of Louisiana

March 12, 1997

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

These federal arson convictions raise primarily Commerce

Clause and double jeopardy concerns. We conclude that the

convictions are within Congress’s commerce power. But we find that

imposing separate sentences for arson, conspiracy to commit arson,

and “using fire to commit conspiracy to commit arson” violated the

Double Jeopardy Clause. We vacate the sentences and remand for re-

sentencing.

I.

In February of 1992, Joseph Corona, III, bought a two-story

residential structure at 1637 Polymnia Street in New Orleans for

$29,000. He insured the house for $45,000, assigned title to the

property to his mother, and made monthly payments of around $450 on
her behalf to the previous owner. His plan was to renovate the

building and turn it into a bed-and-breakfast or a youth hostel.

But that would require special permission from the city, which

Corona was having trouble obtaining. Along with two acquaintances,

V.J. Stock and Lindsey McDonald, Corona undertook sporadic

renovations at a total cost of between $15,000 and $20,000.

By the beginning of 1995, Corona turned sour on the project.

Twice he offered to sell the building to James Hudson, once in

exchange for a taxi number worth about $25,000. Two days before

the fire, when Hudson declined the second offer, Corona told

Hudson: “I guess I’ll do what I got to do.” Wayne Conino, a former

roommate, testified that Corona announced that he wanted “out of

the house.” Corona asked his father-in-law how to set a fire

without being caught. Toward the end of 1994, Corona also

expressed his economic hardship to his mother-in-law, who testified

that “for quite awhile, every once in awhile, he would mention that

he was going to have to burn the house.”

On February 6, 1995, he did just that. He picked up McDonald

and Stock in a New Orleans suburb and dropped them off a few blocks

from the house. Suzanne Guidroz, a United Cab telephone operator,

was visiting with her boyfriend at the nearby United Cab

dispatching station and could see the house through a window. She

testified that Stock and McDonald made many trips up and down an

exterior staircase. At one point, she watched McDonald use an

outdoor pay phone just outside of the United Cab building. When

the two men carried a mattress down the stairs and deposited it on

2
the first floor, she brought the unusual behavior to the attention

of a nearby worker. Less than a minute later, the house virtually

exploded. Guidroz called 911, reported the fire, and explained

that she thought that two men were still in the building. But

apparently McDonald and Stock had already fled the scene.

The flames quickly spread to the “shack,” a warehouse at 1722

Carondelet Street owned by Mario Greco, a United Cab employee.

Greco stored taxis in the building and rented part of it out to

United Cab for $600 per month. The shack contained an employee

break room with vending machines, a television, and tables and

chairs where employees played cards. United Cab furnished the

building in part because workers needed a safe place to relax in a

relatively dangerous neighborhood. Only a few feet separated

Corona’s house from the shack, which was in flames even before

firefighters arrived. More than a dozen people, including a

dispatcher and several cab drivers, had to be evacuated from the

warehouse in the seven-alarm fire. The shack’s roof collapsed, and

one of the cabs stored there was destroyed.

McDonald and Stock returned to the house around 5:00 A.M.,

while investigators were sifting through the remains of the house

and the shack. Guidroz was still at the scene. She immediately

pointed the men out to an investigator. McDonald admitted at trial

that he lied to law enforcement officers when he told them that he

knew nothing about the fire. Later that morning, Corona gave

McDonald a ride back to the suburbs and provided him with a place

to sleep. McDonald also admitted at trial that he lied after his

3
arrest when he told an investigator that Stock had accidentally

caught a blanket on fire, was unable to put it out, and left the

house to meet Corona and McDonald in the French Quarter.

A grand jury indicted each of the three men on three counts:

conspiracy to commit arson (18 U.S.C. § 371), maliciously burning

buildings used in or affecting interstate commerce (18 U.S.C. §

844(i)), and, as the indictment put it, “knowingly us[ing] fire to

commit conspiracy to commit arson as alleged in Count 1” (18 U.S.C.

§ 844(h)(1)). Stock became a fugitive and was not arrested until

September of 1996. Corona and McDonald stood trial.

Much of the government’s case consisted of the testimony of

experts who explained that the fire fit the profile of arson. An

ATF agent described how investigators discovered that the fire

began in three separate places. A burned mattress was on the

ground floor. A city investigator told the jury that he had taken

a trained and certified dog into the burned structure and that the

dog had detected traces of accelerants in the three places where

the fire began. An expert using a gas chromatograph discovered

gasoline on a blanket in the house. Another ATF agent found

burning patterns that suggested that someone had poured

accelerants. According to these experts, the fact that the fire’s

origins were at the bottom of the structure and the fact that the

fire spread so quickly indicated that it was intentional.

The jury unanimously convicted Corona and McDonald on all

three counts after four days of trial. It found “that the

buildings were being used in interstate commerce or in an activity

4
substantially affecting interstate commerce.” The district court

denied their motion for dismissal on the grounds that the two

buildings did not have the requisite connections to interstate

commerce. 934 F. Supp. 740 (E.D. La. 1996). It gave oral reasons

for denying their motion to dismiss on double jeopardy grounds.

Corona received 41-month concurrent sentences on counts one and two

and an additional mandatory 60-month sentence to run consecutively

on count three. McDonald received concurrent 33-month sentences on

counts one and two and a mandatory consecutive 60-month sentence on

count three. Both defendants have appealed.

II.

Corona and McDonald make an as-applied challenge to their

convictions on all three counts by arguing that they exceed

Congress’s commerce power. According to the defendants, neither of

the burned buildings was used in or had a substantial effect on

interstate commerce. Because the fire spread to the United Cab

warehouse, we do not find this argument persuasive.

In rejecting the defendants’ Commerce Clause argument, the

district court held that the law permits a jury to find that the

government proved that the house on Polymnia Street had the

required nexus to interstate commerce. It relied primarily on

Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455, 85 L. Ed.

2d 829 (1985), and United States v. Patterson, 792 F.2d 531 (5th

Cir.), cert. denied, 479 U.S. 865, 107 S. Ct. 220, 93 L. Ed. 2d 149

(1986), for the proposition that the commerce power extends to the

destruction of rental property — including property being prepared

5
for rental — whether or not the rental activity is exclusively

intrastate.

We are not confident that Congress possesses such broad

powers. The defendant in Russell attempted to burn down a two-unit

apartment building and was convicted under § 844(i). The Court

upheld the conviction because the rental of real estate is part of

commerce. It did not require a showing of a specific connection to

interstate commerce because “Congress intended to exercise its full

power to protect ‘business property’” and can protect property

involved in exclusively intrastate business as part of its

regulation of the interstate rental market. Russell, 471 U.S. at

860-61, 105 S. Ct. at 2456-57. In contrast to the property in

Russell, the Polymnia Street house was neither rented nor on the

rental market. It is not clear that Corona ever could have

realized his aspirations of creating a youth hostel or a block of

apartments. The property was hardly different from a private home,

which the Russell Court cautioned may not have been within

Congress’s intent in passing § 844(i). Id. at 862, 105 S. Ct. at

2457.

Patterson involved a fire that destroyed twelve units at a 78-

unit condominium complex that was under construction. We upheld

the conviction under § 844(i) in spite of the fact that none of the

units were yet for sale. But we noted that the interstate commerce

requirement was satisfied because the builder’s “activity was a

significant business venture involving out-of-state partners and

financing by an out-of-state lender.” Patterson, 792 F.2d at 536.

6
Again, the Polymnia Street property bears little resemblance to the

partially-completed condominium complex in Patterson. There has

been no mention of out-of-state financiers or prospective tenants.

The sheer size of the Patterson project made its likely effect on

interstate commerce obvious both for investors and for potential

purchasers. The commercial dimensions of Corona’s project were

modest at best, and the interstate component of his commercial

plans was trifling.

Furthermore, the analysis in Patterson lost some of its

vitality when the Supreme Court announced that “the proper test

requires an analysis of whether the regulated activity

‘substantially affects’ interstate commerce.” United States v.

Lopez, ___ U.S. ___, ___, 115 S. Ct. 1624, 1630 (1995). In Lopez,

the Court struck down the Gun-Free School Zones Act, 18 U.S.C. §

922(q), which criminalized the possession of a firearm within a

school zone. By inserting the word “substantially” in its

formulation of the “effects test,” the Court reminded us that

federal courts have a duty to scrutinize the Congress’s commerce

power and dispelled the notion that de minimis connections to

interstate commerce can legitimate federal legislative powers. See

United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995)

(explaining that Lopez has heightened § 844(i)’s jurisdictional

requirement to a “‘substantial’ effect on or connection to

interstate commerce”). The Lopez Court also emphasized that

federal criminal laws can easily intrude on the “traditional

concern[s] of the States.” ___ U.S. at ___, 115 S. Ct. at 1640

7
(Kennedy, J., concurring). Like the statute in Lopez, § 844(i)

imposes a criminal penalty in an area that has been the domain of

state jurisprudence throughout our history. The consequences of

arson are typically local, and we have traditionally left it to the

states to determine the appropriate penalty, just as we have

traditionally left educational policy to localities, which “may

perform their role as laboratories for experimentation to devise

various solutions where the best solution is far from clear.” Id.

at ___, 115 S. Ct. at 1641 (Kennedy, J., concurring). The

jurisdictional element in § 844(i) protects it from the facial

challenge at issue in Lopez. See United States v. DiSanto, 86 F.3d

1238, 1245 (1st Cir. 1996) (“[W]hatever López’ reach, it certainly

did not purport to overrule cases upholding application of the

Commerce Clause power to wholly intrastate activities satisfying

the requisite nexus to interstate commerce.”), petition for cert.

filed, 65 U.S.L.W. 3531 (U.S. Nov. 12, 1996). Nevertheless, the

limits of the commerce power are sharper in the wake of Lopez than

they were when we decided Patterson. Indeed, Lopez calls into

question a family of cases interpreting § 844(i).1

1
See, e.g., United States v. Utter, 97 F.3d 509, 516 (11th
Cir. 1996) (finding federal jurisdiction under § 844(i) because
“the restaurant served alcohol and used natural gas, both of which
originated outside of Florida”); United States v. Ryan, 41 F.3d
361, 365 (8th Cir. 1994) (en banc) (“The short duration of the
closure, receipt of utility services for much of the month and
continued receipt of natural gas, Ryan’s continued presence on his
father’s payroll as manager of the Fitness Center . . . , and the
[out-of-state] lease arrangement itself all lead to the conclusion
that the Fitness Center was an instrumentality of interstate
commerce for purposes of satisfying the requirements of section
844(i).”), cert. denied, ___ U.S. ___, 115 S. Ct. 1793, 131 L. Ed.
2d 721 (1995); United States v. Ramey, 24 F.3d 602, 607 (4th Cir.

8
 The Seventh Circuit has recently reaffirmed the view that the

Commerce Clause allows application of § 844(i) to the burning of

private homes connected to natural gas lines because “the sum of

many small effects can be a large effect.” United States v. Hicks,

___ F.3d ___, ___, 1997 WL 39856, at *2 (7th Cir. 1997). Without

challenging the general thrust of the aggregation principle, we

doubt that an effect as small as the cessation of natural gas

service to a single household satisfies the constitutional

requirement. Taking the “effects test” to its logical extreme

1994) (holding that the destruction of a mobile home affected
interstate commerce because it received electricity from an
interstate power grid), cert. denied, ___ U.S. ___, 115 S. Ct.
1838, 131 L. Ed. 2d 757 (1995); United States v. Shively, 927 F.2d
804, 808 (5th Cir.) (allowing a § 844(i) conviction where there is
“[e]ven a de minimis effect on interstate commerce”), cert. denied,
501 U.S. 1209, 111 S. Ct. 2806, 115 L. Ed. 2d 979 (1991); United
States v. Stillwell, 900 F.2d 1104, 1111-12 (7th Cir.) (holding
that § 844(i) covered the destruction of a private residence
because “the aggregate class of . . . all arson of private homes
supplied with interstate natural gas[] has more than a de minimis
effect on interstate commerce”), cert. denied, 498 U.S. 838, 111 S.
Ct. 111, 112 L. Ed. 2d 81 (1990); United States v. Andrini, 685
F.2d 1094, 1096 (9th Cir. 1982) (“[T]he construction of a
commercial office building using out-of-state materials is a
commercial activity affecting interstate commerce for the purposes
of § 844(i).”). Cf. United States v. McMasters, 90 F.3d 1394, 1399
(8th Cir. 1996) (explaining that Lopez did not overrule sub
silentio Russell’s principle that “renting a house is the sort of
economic activity that might, through repetition elsewhere,
substantially affect interstate commerce”), cert. denied, ___ U.S.
___, 117 S. Ct. 718, 136 L. Ed. 2d 636; ___ U.S. ___, 117 S. Ct.
783, ___ L. Ed. 2d ___ (1997); United States v. Martin, 63 F.3d
1422, 1427 (7th Cir. 1995) (holding that even after Lopez, the
Commerce Clause permits a conviction under § 844(i) where the
burned building was “a rental property still available for rent but
otherwise closed to interstate commerce”); Reedy v. United States,
934 F. Supp. 184, 187 (W.D. Va. 1996) (“Reedy’s placement of the
restaurant building, zoned for commercial use, on the real estate
market and the subsequent contacts with potential buyers from
another state who were seeking to start a commercial venture
satisfied the government’s burden . . . under § 844(i).”),
dismissed on other grounds, 105 F.3d 649 (4th Cir. 1997) (mem.).

9
would for all practical purposes grant the federal government a

general police power, the very danger the Lopez Court warned us

against. See Lopez, 115 S. Ct. at 1632. The aggregate effect of

arsons of private homes may have a substantial effect on interstate

commerce. But if each arson in the aggregation is negligible, the

calculation of their effect becomes speculative in the same way

that the effect of gun possession near schools is speculative. We

are reluctant to tolerate so much speculation. If these

convictions were based only on the house on Polymnia Street, then,

Corona’s and McDonald’s actions might not have a strong enough

connection to interstate commerce to warrant the exercise of

Congress’s commerce power.

Fortunately, we can put off that question for another day. We

find that these convictions comport with the Commerce Clause

because of the fact that the fire spread to the United Cab

warehouse on Carondelet Street. Not only was the Carondelet Street

property actually being rented, but it was serving a commercial

rather than a residential purpose. Indeed, the government elicited

testimony that the building facilitated a business that regularly

offered transportation services to interstate travelers arriving at

New Orleans International Airport. See Katzenbach v. McClung, 379

U.S. 294, 304 (1964) (holding that Title II of the Civil Rights Act

of 1964, 42 U.S.C. § 2000a, is within Congress’s commerce power as

applied to a restaurant that serves interstate travelers).

Whatever effect Lopez may have had on the rule announced in

Russell, we do not think that it went so far as to eliminate from

10
the scope of § 844(i) buildings rented to businesses that provide

transportation to a significant number of out-of-state visitors.

Because of its interest in promoting mobility throughout the

nation, the federal government has an interest in protecting local

commercial transportation offered to the general public.

Consequently, it may criminalize the burning of buildings rented by

cab companies for commercial purposes because those burnings can

have a substantial effect on interstate commerce.2

Corona and McDonald argue that because they did not intend to

burn the warehouse rented by United Cab, they did not “maliciously

damage[] or destroy[]” that building within the meaning of §

844(i). We disagree. In United States v. Gullett, 75 F.3d 941

(4th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 134, 136 L. Ed.

2d 83 (1996), a defendant intended to kill a business associate by

arranging for him to set off an explosive package in his home. The

victim instead triggered the explosion outside of property rented

by the business. The government won an arson conviction even

though the defendant did not intend to harm the building.

Affirming the conviction, the Fourth Circuit held that § 844(i)

uses the word “maliciously” in the same way that common-law courts

2
As the Court indicated in United States v. Robertson, 115 S.
Ct. 1732, 1733 (1995) (per curiam), the three Commerce Clause tests
utilized in Lopez are analytically distinct. Because we decide
this case under Lopez’s “substantial effects” test, we need not
decide whether these convictions would survive scrutiny under the
test involving “the use of the channels of interstate commerce” or
the test involving “the instrumentalities of interstate commerce,
or persons or things in interstate commerce, even though the threat
may come only from intrastate activities.” See Lopez, 115 S. Ct.
at 1629.

11
used it: acting “intentionally or with willful disregard of the

likelihood that damage or injury would result.” Id. at 947. We

agree with the Fourth Circuit that the statute’s definition of

“maliciously” includes “wanton and willful burnings without

justification or excuse,” just as the common law’s understanding of

arson did. See John W. Poulos, The Metamorphosis of the Law of

Arson, 51 MO. L. REV. 295, 405 (1986). See also McFadden v. United

States, 814 F.2d 144, 146 (3d Cir. 1987) (holding that Congress

intended § 844(f)’s prohibition on “maliciously” using fire to

damage or destroy government property to extend to acts in willful

disregard of the likelihood of damage). Corona and McDonald could

not have helped knowing that the Carondelet Street property was

only a few feet from the Polymnia Street house. We have no trouble

concluding that they acted in willful disregard of the likelihood

of spreading the fire to the warehouse.

III.

A.

Corona and McDonald argue that their conviction on count three

violates their Fifth Amendment rights because it amounts to a

second, unauthorized punishment for the crimes referred to in

counts one and two. We agree. We hold that, with the possible

exception of cases in which conspirators use fire as a means of

communication, Congress has not authorized three separate

punishments for arson, for conspiracy to commit arson, and for

using fire to commit conspiracy to commit arson.

12
 Although both defendants’ sentences on counts one and two are

concurrent, each of the three sentences carries its own $50 special

assessment under U.S.S.G. § 5E1.3. As long as a sentence carries

a mandatory special assessment, it is a separate punishment for

double jeopardy purposes. United States v. Kimbrough, 69 F.3d 723,

729 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1547,

134 L. Ed. 2d 650 (1996). Because of the special assessments,

then, Corona and McDonald were each punished three separate times,

once under each statute.

The government argues that the defendants cannot take

advantage of this doctrine because they did not object to the

special assessments at sentencing. But the defense did not need to

make such an objection to preserve the double jeopardy argument; it

could consistently maintain that multiple punishments should not be

allowed and concede that if multiple punishments are permissible,

the mandatory assessments apply. Preserving the double jeopardy

theory required the defense simply to put the district court on

notice of the nature of its objection. Wallace v. Ener, 521 F.2d

215, 218 (5th Cir. 1975). Furthermore, in contrast to a complaint

about multiplicity in an indictment, “[a] complaint about

multiplicity of sentences . . . can be raised for the first time on

appeal.” United States v. Stovall, 825 F.2d 817, 821 (5th Cir.),

amended, 833 F.2d 526 (5th Cir. 1987).

When multiple punishments are at issue, our inquiry focuses on

whether Congress intended for the defendant’s actions to be subject

to the punishment received. If statutory language authorizes the

13
punishment, there can be no double jeopardy violation. Missouri v.

Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679 (1983); Albernaz

v. United States, 450 U.S. 333, 336, 101 S. Ct. 1137, 1141 (1981).

But if that inquiry is inconclusive, we apply the interpretive tool

announced in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932), which asks “whether conviction under

each statutory provision requires proof of an additional fact which

the other does not.” United States v. Nguyen, 28 F.3d 477, 482

(5th Cir. 1994) (citing United States v. Free, 574 F.2d 1221, 1224

(5th Cir.), cert. denied, 439 U.S. 873, 99 S. Ct. 209, 58 L. Ed. 2d

187 (1978)). Where there are more than two statutory provisions at

issue, each offense must contain an element not contained in the

sum of the elements of the other offenses. See United States v.

Davis, 793 F.2d 246, 248 (10th Cir.), cert. denied, 479 U.S. 931,

107 S. Ct. 400, 93 L. Ed. 2d 353 (1986). Determining whether

statutory offenses are separate for double jeopardy purposes

involves parsing the statutes apart from the facts of any

particular case. United States v. Singleton, 16 F.3d 1419, 1422

(5th Cir. 1994).

The prosecution framed these indictments carefully in order to

avoid a more obvious double jeopardy violation. If the predicate

offense in the use-of-fire count had been the arson charged in

count two, those two counts would differ only in name — both would

punish the defendants for burning buildings with an effect on

interstate commerce. The Seventh Circuit has sensibly held that

convictions under § 844(h)(1) and § 844(i) create a double jeopardy

14
violation when the § 844(i) offense is the crime in which the

defendant used fire. United States v. Chaney, 559 F.2d 1094, 1095-

96 (7th Cir. 1977). Neither crime involves an element that the

other does not. Just as one necessarily uses force in committing

robbery, one necessarily uses fire in committing arson. With no

indication from Congress that every arson should be subject to the

five-year3 enhancement set out in § 844(h)(1), the Seventh Circuit

concluded that these counts amount to “‘the same offense’ within

the meaning of the double jeopardy clause because they would be

proved by identical evidence.” Id. at 1096 (citing Brown v. Ohio,

432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)). The

government admits on appeal that Chaney’s analysis would control if

arson had been the predicate of the use-of-fire charge: “The Court

in Nguyen[, 28 F.3d at 485,] indicated that Congress intended

multiple, consecutive punishments for subsections (h) and (i) of

Section 844, as long as the predicate felony for subsection (h) is

not the subsection (i) charge itself” (emphasis added). Cf. United

States v. Fiore, 821 F.2d 127, 130-31 (2d Cir. 1987)

(distinguishing Chaney where mail fraud is the underlying felony in

a use-of-fire conviction).

The only way for the prosecution to evade the sort of

violation found in Chaney was to make count one rather than count

two into the predicate underlying the use-of-fire charge. Instead

3
In 1996, Congress increased the enhancement for first-time
offenders to ten years. Antiterrorism and Effective Death Penalty
Act of 1996, § 708(a)(3)(A), Pub. L. No. 104-132, 110 Stat. 1214,
1296.

15
of using fire to commit arson, then, the prosecution alleged that

Corona and McDonald used fire to commit conspiracy to commit arson.

We have seen this tactic before. The prosecution in United

States v. Riggio, 70 F.3d 336 (5th Cir. 1995), cert. denied, ___

U.S. ___, 116 S. Ct. 1366, 134 L. Ed. 2d 531 (1996), charged a

defendant with these same three statutory violations after he

consummated his agreement to burn an automobile dealership for

$5,000. Applying the Blockburger test, we held that “conspiracy to

commit arson may serve as the predicate felony for a use of fire

charge.” But the jury in Riggio acquitted the defendant of the §

844(i) arson charge. Indeed, we noted that Chaney did not apply

because “[t]he instant case is different from the situation in

which the defendant is convicted of arson and the use of fire

charge.” Id. at 338 n.10. In the case of Corona and McDonald, by

contrast, the prosecution won convictions on all three counts. Our

question is whether the prosecution’s sleight of hand reflects a

use of § 844(h)(1) that comports with the punishment that Congress

intended for defendants such as Corona and McDonald.

B.

Because the penalty for using fire functions as a statutory

enhancement, the conspiracy count and the arson count do not need

to include an element not included in the use-of-fire count. See,

e.g., Smallwood v. Johnson, 73 F.3d 1343, 1350 & n.9 (5th Cir.),

cert. denied, ___ U.S. ___, 117 S. Ct. 212, 136 L. Ed. 2d 146

(1996); Singleton, 16 F.3d at 1425. But the defendants insist that

the use-of-fire count violates Blockburger because it required the

16
jury to find nothing beyond the combined elements of the conspiracy

and arson counts. The government’s theory at trial was that Corona

and McDonald used fire to commit conspiracy when they started the

fire as an overt act in furtherance of the arson conspiracy. The

indictment specifically listed starting the fire as one of the

overt acts supporting the § 371 charge. The government points out

that combining § 844(h)(1) with a conspiracy charge has been

sanctioned not only by Riggio, but also by the Seventh Circuit in

United States v. Hayward, 6 F.3d 1241, 1246-48 (7th Cir. 1993),

cert. denied, ___ U.S. ___, 114 S. Ct. 1369, 128 L. Ed. 2d 46

(1994), which upheld a conviction for using fire in the commission

of an illegal conspiracy to intimidate on the basis of race by

burning crosses.

If setting the buildings on fire was the only way that Corona

and McDonald could have used fire to commit their conspiracy, their

punishment was unconstitutionally duplicative. The conspiracy and

the arson counts required the jury to find that the defendants

agreed to commit an act in reckless disregard of the danger of

burning a building affecting interstate commerce, that they acted

in furtherance of that agreement, and that their reckless or

intentional actions actually caused the burning of a building

affecting interstate commerce. On the fire-as-overt-act theory,

nothing more need be proved in order to find a violation of §

844(h)(1). Once the jury has found the defendants guilty of arson

and conspiracy to commit arson, it has found them guilty of using

17
fire as part of that conspiracy. That violates Blockburger, and we

presume that Congress did not intend such a result.

Another theory of how the defendants used fire is available,

one that does not depend on equating the fire with an overt act.

In the abstract, the charge of using fire to commit conspiracy to

commit arson could be separate from the conspiracy itself if the

jury were required to find that fire had some role in facilitating

the conspirators’ agreement. The jury in this case, for example,

could conceivably have found that Corona and McDonald communicated

across the Mississippi River by smoke signals or by hanging a

lantern in a belfry. We do not reach the question of whether that

kind of conduct would merit punishment under § 844(h)(1). But the

government would have a colorable argument to that effect. Compare

Hayward, 6 F.3d at 1246-48 (allowing a § 844(h)(1) conviction even

where the fire’s purpose is not to destroy property), with United

States v. Lee, 935 F.2d 952 (8th Cir. 1991) (concluding that §

844(h)(1) does not apply to non-destructive fires), reh’g en banc

granted on other grounds, 6 F.3d 1297 (8th Cir. 1993) (en banc),

cert. denied, ___ U.S. ___, 114 S. Ct. 1550, 128 L. Ed. 2d 199

(1994). In the most technical sense, then, the three convictions

survive the Blockburger test.

The Riggio court did not consider whether one “uses fire” to

commit conspiracy when one uses fire to commit an overt act in

furtherance of the conspiracy. And the Hayward court noted that

the defendants had waived the argument that “[t]he fire was not an

aid in formulating the agreement” because “the federal felony of

18
conspiracy . . . is complete at the time that the agreement is

made.” Hayward, 6 F.3d at 1248 n.9. The same is true in this

case. Because the defendants have not argued the point, we do not

question the government’s premise that § 844(h)(1) permits the

fire-as-overt-act theory.

But even if § 844(h)(1) requires fire to be used as more than

an overt act, we would not allow these sentences to stand.

Although it is possible to speculate that Corona and McDonald used

fire to communicate, there is no evidence that anything of the sort

happened in this case. On these facts, it would be inappropriate

to burden the defendants with the full force of Blockburger’s

abstractions. The government did not contend at trial that the

defendants used fire to agree, and it does not advance anything

like a smoke-signal theory on appeal. The Supreme Court has

recognized that “[t]here may be instances in which Congress has not

intended cumulative punishments . . . , notwithstanding the fact

that each offense requires proof of an element that the other does

not.” Whalen v. United States, 445 U.S. 684, 693 n.7, 100 S. Ct.

1432, 1438 n.7, 63 L. Ed. 2d 715 (1980). And in the past we have

declined to indulge in speculations with no support in the record

in order to get a conviction past the Double Jeopardy Clause. In

United States v. Evans, 854 F.2d 56, 57 n.2 (5th Cir. 1988), for

example, we held that two § 922(a)(6) counts for giving false

information in connection with the purchase of a firearm or

ammunition were duplicative in spite of the fact that “[i]t is . .

. theoretically possible that on each occasion Evans twice

19
separately furnished the Robinett driver’s license.” We noted that

neither the indictment nor the jury instructions required such a

finding and that the government never contended at trial that there

were separate false statements for each count. Id. See also

United States v. Hodges, 628 F.2d 350, 352 (5th Cir. 1980)

(concluding “that appellant illegally received two sentences for

the proof of one crime” because the government did not argue at

trial that the defendant possessed the relevant firearms at

different times or places); United States v. Hernandez, 591 F.2d

1019, 1022 (5th Cir. 1979) (en banc) (finding a double jeopardy

violation where the government used the same evidence to prove both

distribution and possession with intent to distribute under 18

U.S.C. § 841(a)(1)). Evans, Hodges, and Hernandez, unlike this

case, concerned multiple punishments under a single statute. See

Gore v. United States, 357 U.S. 386, 391, 78 S. Ct. 1280, 1284, 2

L. Ed. 2d 1405, 1409 (1958) (distinguishing single- from multiple-

statute cases). Nevertheless, they spring from a concern that the

prosecution’s creative pleading can lead to unauthorized multiple

punishment. Without any hint from the government that Corona and

McDonald used fire as a medium of communication, we will not allow

that theory to serve as a basis for the government’s contention

that these § 844(h)(1) convictions comport with Congress’s intended

application of the statute.

C.

When we find duplicative sentences, we vacate the offending

sentences and remand with instructions that the government may

20
elect which counts to dismiss in order to bring the sentences into

compliance. United States v. Brechtel, 997 F.2d 1108, 1112 (5th

Cir.), cert. denied, 510 U.S. 1013, 114 S. Ct. 605, 126 L. Ed. 2d

570 (1993); United States v. Goff, 847 F.2d 149, 172 (5th Cir.),

cert. denied, 488 U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341

(1998). In this case, the government may choose to dismiss any of

the three counts. Under Riggio, multiple punishments under §

844(h)(1) and § 371 can stand, even if the conspiracy is the

predicate for the § 844(h)(1) count. Multiple punishments under §

844(i) and § 371 can stand because both the conspiracy count and

its predicate offense require an element that the other does not.

See United States v. Felix, 503 U.S. 378, 389, 112 S. Ct. 1377,

1384, 118 L. Ed. 2d 25 (1992). As far as the double-jeopardy

analysis is concerned, the government can even choose to pursue

multiple punishments under § 844(i) and § 844(h)(1). Unlike the

charges in Chaney, the predicate offense for the § 844(h)(1) count

is not arson as such, but conspiracy to commit arson. Thus, §

844(h)(1) requires — and the jury found — an element not contained

in § 844(i): an agreement.

IV.

Corona and McDonald were each represented by different counsel

at trial. Although Corona was and is represented by a federal

public defender, he managed to hire private counsel to represent

McDonald and Stock, the at-large defendant. McDonald’s trial

counsel withdrew after filing a notice of appeal, and McDonald

obtained a new attorney. On the strength of Cuyler v. Sullivan,

21
446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333

(1980), he contends before us that the fact that his trial counsel

was being paid by Corona created an actual conflict of interest

that requires us to grant him a new trial. Specifically, McDonald

explains that his trial counsel asked McDonald on the stand about

Corona’s behavior after the fire in a way that suggested that

Corona was not privy to the plot. He also suggests that his

counsel’s decision to have McDonald testify was motivated by his

interest in decreasing the chances that Corona would be convicted.

McDonald inaccurately describes his trial counsel’s situation

as “multiple representation.” Unlike the defense counsel in

Cuyler, who had professional duties to three co-defendants,

McDonald’s attorney had an obligation to pursue only McDonald’s

interests at trial. V.J. Stock was not present, and McDonald does

not suggest that the concurrent duties to McDonald and Stock

created any actual conflict. The fact that Corona paid McDonald’s

counsel does not mean that he represented Corona. See Model Rules

of Professional Conduct Rule 1.8(f) (allowing lawyers to accept

compensation from third parties).

In some circumstances, we have required trial judges to hold

Garcia hearings when they know of an actual conflict of interest.

See, e.g., United States v. Greig, 967 F.2d 1018, 1022 (5th Cir.

1992) (remanding for a Garcia hearing where defense counsel

committed serious ethical breaches that put him “in the position of

simultaneously having to defend himself as well as his client

regarding their potentially criminal activity”). We afford this

22
protection to criminal defendants to ensure that they have made an

informed waiver of the right to conflict-free counsel. See United

States v. Garcia, 517 F.2d 272 (5th Cir. 1975).

We cannot find any reason why the district court should have

been alerted to any conflict of interest here. McDonald’s direct

examination was hardly calculated to exonerate Corona. And the

fact that McDonald testified on his own behalf was not sufficient

to put the court on notice that something might be amiss.

McDonald’s testimony disclosed that his counsel received payment

from Corona, but that by itself does not establish a conflict of

interest. As far as the court was concerned, McDonald could have

declined Corona’s assistance and accepted appointed counsel if he

thought his counsel would be disloyal.

In essence, then, McDonald is simply arguing that he received

ineffective assistance of counsel. But he did not make this

argument at trial. “[A] claim of ineffective assistance of counsel

cannot be resolved on direct appeal unless it has been first raised

before the district court.” United States v. Bounds, 943 F.2d 541,

543-44 (5th Cir. 1991). As in Bounds, McDonald can press his

ineffective-assistance claim under 28 U.S.C. § 2255.

V.

Finally, McDonald challenges the sufficiency of the evidence

on all three counts. Criminal convictions are supported by

sufficient evidence “if a reasonable trier of fact could conclude

that the elements of the offense were established beyond a

reasonable doubt, viewing the evidence in the light most favorable

23
to the jury’s verdict and drawing all reasonable inferences from

the evidence to support the verdict.” United States v. Mmahat, ___

F.3d ___, ___, 1997 WL 52191, at *8 (5th Cir. 1997).

The government’s evidence that the fire was caused by an

arsonist was overwhelming: a parade of experts explained their

various reasons for concluding that someone had burned the Polymnia

Street house intentionally. An eyewitness placed McDonald at the

scene within a minute of the fire. Suzanne Guidroz testified that

she had seen McDonald on several occasions before and had a chance

to confirm his identity when he walked to the United Cab building

to place a telephone call. Investigators testified that he showed

up the next morning at the property. McDonald admits that he lied

to these investigators when they asked him about the blaze. See

United States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984) (“False

exculpatory statements may be used . . . as substantive evidence

tending to prove guilt.”). According to Ms. Guidroz, McDonald and

Stock were acting in concert to prepare the house for the fire.

Based on this evidence, a reasonable jury could conclude that,

beyond a reasonable doubt, McDonald agreed to burn down the

Polymnia Street house and carried out that agreement. See United

States v. Ruiz, ___ F.3d ___, ___, 1997 WL 49333, at *5-*8 (1st

Cir. 1997) (upholding arson and conspiracy convictions on

circumstantial evidence, including the likelihood that the

defendants were lying); United States v. Utter, 97 F.3d 509, 512

(11th Cir. 1996) (finding the evidence of arson sufficient where

the evidence showed that the fire was intentional, that the

24
defendant had a motive, and that the defendant had talked about

setting the property on fire).

VI.

Corona’s and McDonald’s convictions comport with the Commerce

Clause and are supported by sufficient evidence. Their sentences,

however, violate the Double Jeopardy Clause. We vacate the

sentences on all three counts and remand this case to the district

court so that the government can dismiss one of the counts and the

court can impose new sentences. McDonald’s claim of ineffective

assistance of counsel is dismissed without prejudice.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

25