United States v. Caldwell

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-10976
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRAIG E. CALDWELL,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the
Northern District of Texas
(3:96-CR-95-T)
______________________________________________
July 2, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

Craig E. Caldwell makes several challenges to his conviction

for soliciting another person to commit arson in violation of 18

U.S.C. §§ 373(a) and 844(i). He also argues that the district

court improperly enhanced his sentence based on an erroneous

finding of obstruction of justice. Finding no error, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 The Government presented evidence that the appellant, Craig E.

Caldwell, owned Simpson Funeral Home, which was located in

Inglewood, California. The property was purchased in the name of

Victoire Hovland,2 who was Caldwell's girlfriend. Caldwell

referred to her as a "straw buyer."

In June of 1995, the insurance coverage for the funeral home

was cancelled due to a late payment, and Caldwell called an

insurance broker to reinstate the coverage. Initially, they were

unsuccessful in reinstating the policy, and Caldwell indicated that

he would seek coverage elsewhere. Approximately a month later,

Caldwell contacted the broker again requesting coverage. On July

18, 1995, the broker secured another policy insuring the building

for $1,000,000. Caldwell then informed the broker that the

coverage should be $1,500,000 because of improvements that had been

made on the funeral home. The broker raised the limits of the

policy accordingly.3

Subsequently, in September of 1995, Caldwell and his business

associate, Dahn Walker, were flying from Phoenix to Dallas, and on

that flight met Walter Axley, who was a skip tracer for a bail bond

company in the Dallas, Texas area. After some conversation

regarding the bail bond business, Caldwell remarked that Axley must

know all types of people in that business and asked whether he knew

2
She was also referred to as "Vicki" or "V.V." Hovland.
3
On January 30, 1996, Caldwell discussed increasing the policy
limits another $250,000, and requested a quote from the insurance
broker. That increase was never effectuated.

2
someone who could burn down a building. Axley replied that his

brother-in-law possibly could do it. Nothing else was said about

arson during the flight. Caldwell and Axley exchanged business

cards prior to deplaning.

Axley reported the conversation to an IRS agent he knew from

working undercover on one of the agent's investigations. Because

the agent thought Caldwell was just a "kook," he advised Axley to

"blow [Caldwell] off." No investigation was instigated at that

point.

A week or so later, Caldwell contacted Axley in Dallas.

Caldwell and Walker met with Axley and discussed surety bonds;

however, there was no mention of arson. Pursuant to Caldwell's

request, Axley introduced him to an individual who was in the

business of providing financial guaranty bonds. The next day

Caldwell instructed Axley that in the future the proposed arson

should be referred to as the "insurance thing or the insurance

company."

On November 13, 1995, at another meeting with Axley, Caldwell

brought a gray binder containing photos of the targeted building,

information about its location, and a floor plan. He told Axley

where the furnaces were located and the easiest access into the

building. Caldwell was willing to pay up to $5,000 in expenses and

airfare for the arsonist to travel to and from California. He

specified that the fire should be set in the early morning hours,

between one and four a.m. on a Sunday, in December or early

3
January. Caldwell repeatedly insisted that the funeral home had to

be burned flat to the ground, so that it could not be rebuilt.

After Axley reported these conversations to the IRS agent, that

agent referred Axley to an ATF agent, who had Axley wear a

recording device at future meetings.

On December 13, 1995, in a recorded conversation at a

restaurant between Caldwell and Axley, Axley proposed "a former

client" that he had "bonded out" to be the arsonist instead of his

brother-in-law. Axley brought a bail bond file containing "dummy"

information and a picture of the proposed arsonist. The

information in the file was fictitious, and the picture was of an

agent. Caldwell was adamant that he did not want to see the

proposed arsonist's picture or ever meet him.

After discussing the arsonist's fee, Caldwell repeatedly

sought assurances that the proposed arsonist had experience and

would burn the building to the ground. Caldwell wanted Axley to

"swear by" the arsonist.

When Axley told Caldwell that the proposed arsonist would

charge only $2,000, Caldwell replied: "you can't lose on that."

Caldwell promised that Axley's fee would be "a lot more" than the

"couple of hundred" dollars Axley suggested. Caldwell indicated he

could use Southwest Airlines flight coupons to fly the arsonist to

California. During this meeting, Caldwell stated that "it's a

4
go."4

In a subsequent meeting on January 10, 1996, Caldwell

expressed his concern regarding whether the proposed arsonist could

do the job. Caldwell suggested that he would advance $700 for the

arsonist's flight and expenses. In a previous conversation,

Caldwell had volunteered to have gas containers in the building for

the arsonist. During this meeting, he changed his mind because

"they might tie me into [it]."

Caldwell informed Axley that a tenant, "a black guy," lived in

the funeral home building. Caldwell said that he did not care what

happened to the tenant. Caldwell reiterated that the building must

be burned "down to the ground."

At a meeting on February 6, Caldwell related to Axley that he

was again concerned that after the job was completed the arsonist

would come back to haunt them. Caldwell announced that if the

arsonist would try to do so, they would "bury" him. The next day,

Caldwell and Axley had their last meeting. At this point, Axley

believed that Caldwell was "beginning to smell a rat in this deal."

Toward the end of the meeting, Caldwell directed Axley to tell the

arsonist "no for right now. Now, he'll be back here if we want him

two weeks from now." Immediately after this conversation, Caldwell

was arrested.

A grand jury returned an indictment charging Caldwell with

4
On December 15, Caldwell phoned Axley and discussed the proposed
arson in a recorded conversation.

5
violating 18 U.S.C. § 373(a) by soliciting another person to commit

arson in violation of 18 U.S.C. § 844(i). A jury found Caldwell

guilty as charged. The district court sentenced him to 57 months

imprisonment and imposed a $10,000 fine.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

When reviewing the sufficiency of the evidence, this Court

views all evidence, whether circumstantial or direct, in the light

most favorable to the Government with all reasonable inferences to

be made in support of the jury's verdict. United States v.

Salazar, 958 F.2d 1285, 1290-91 (5th Cir.), cert. denied, 506 U.S.

863, 113 S.Ct. 185 (1992). The evidence is sufficient to support

a conviction if a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Id.

The evidence need not exclude every reasonable hypothesis of

innocence or be completely inconsistent with every conclusion

except guilt, so long as a reasonable trier of fact could find that

the evidence established guilt beyond a reasonable doubt. United

States v. Faulkner, 17 F.3d 745, 768 (5th Cir.), cert. denied, 513

U.S. 870, 115 S.Ct. 193 (1994).

To establish solicitation "under 18 U.S.C. § 373, the

Government must prove that the defendant intended for another

person to engage in conduct which violates Title 18, and that the

defendant induced or tried to persuade that other person to commit

the crime." United States v. Razo-Leora, 961 F.2d 1140, 1147 n.6

6
(5th Cir. 1992) (citation omitted). To establish a violation of 18

U.S.C. § 844(i), the Government must prove the defendant: (1)

maliciously damaged or destroyed a building; (2) by means of fire;

and (3) the building was being used in activity affecting

interstate commerce. United States v. Nguyen, 28 F.3d 477, 480

(5th Cir. 1994).

1. Serious effort

Caldwell argues that the evidence is insufficient to support

his conviction for soliciting another person to commit arson

because he never made a "serious effort" to induce another to

commit arson. Thus, he claims the evidence does not support the

intent element of solicitation because his solicitations were not

serious. We disagree.

Caldwell promised payment to Axley for having the building

burned to the ground of "a lot more" than the $200 Axley suggested.

Although he never tendered the money, Caldwell offered $2,000 plus

expenses for Axley's arsonist.

Caldwell threatened to "bury" Axley's arsonist if, after

setting the fire, he should later "hold them up." This is a

further manifestation of seriousness.

There are also repeated and specific solicitations by Caldwell

of Axley and Axley's arsonist. Caldwell held forth at length in

soliciting the commission of the offense, and also made express

protestations of seriousness in soliciting the commission of the

offense.

7
 Caldwell made inquiries as to the experience of Axley's

proposed arsonist. And it appears that Caldwell believed that the

proposed arsonist had experience in successfully burning down

buildings.

Additionally, Caldwell made preparations for the commission of

the offense by bringing a floor plan and discussing the placement

of water heaters and potential combustibles. Finally, Caldwell

expressed his total disregard for the life of the caretaker of the

funeral home. The evidence shows manifestations of considerable

seriousness regarding Caldwell's intent to solicit.

In an argument Caldwell briefly mentions within this issue

(and explores in more detail in his constructive amendment issue),

Caldwell contends that the evidence was insufficient because he did

not solicit Axley to actually set the fire. The evidence shows,

however, that Caldwell solicited both Axley and the proposed

arsonist. Caldwell proposed that Axley have the important role of

arranging the scheme and acting as a buffer to distance himself

from the person setting the fire. Caldwell solicited Axley to make

all of the arrangements with the proposed arsonist and to pass

along the compensation for setting the fire. Caldwell proposed

compensating both Axley and the arsonist. Viewing the evidence in

the light most favorable to the verdict, there is sufficient

evidence to show that Caldwell made a serious effort to solicit

another person (both Axley and Axley's proposed arsonist) to engage

in conduct in violation of Title 18.

8
 2. Interstate Commerce Connection

Caldwell also argues that the Government failed to prove the

interstate commerce element of § 844(i), that the funeral home was

being used in interstate commerce or in an activity affecting

interstate commerce. The Government introduced invoices into

evidence showing that from December 13, 1995 to February 1996, the

funeral home purchased caskets that were manufactured outside of

California. Additionally, the caretaker of the funeral home

testified that he had worked there since December of 1995,5 and

that during that time bodies had been shipped to and from places

such as Detroit, Washington, D.C., and Guadalajara, Mexico. Viewed

in the light most favorable to the verdict, this evidence is

sufficient to satisfy the interstate commerce element of § 844(i).6

B. CONSTRUCTIVE AMENDMENT OF INDICTMENT/VARIANCE

"The Fifth Amendment guarantees that a criminal defendant will

be tried only on charges alleged in a grand jury indictment."

United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991), cert.

denied, 503 U.S. 939, 112 S. Ct. 1480 (1992). "The indictment

5
He also testified that he worked at the funeral home for a brief
time during the summer of 1995.
6
The indictment alleges that Caldwell solicited Axley to commit
arson "on or about between September, 1995 and February 7, 1996."
Caldwell contends that there is no evidence that the funeral home
was in operation prior to December 12, 1995. Caldwell apparently
concedes the evidence was sufficient for the remaining period of
time. We are aware of no authority (and Caldwell cites none) that
requires the Government to prove that the business or property in
question was involved in interstate commerce every day of the
period alleged in the indictment. Moreover, the earliest date
Caldwell proposed to commit the arson was December 1995.

9
cannot be `broadened or altered' except by the grand jury." Id.

(citations omitted). "A constructive amendment of the indictment

occurs when the Government changes its theory during trial so as to

urge the jury to convict on a basis broader than that charged in

the indictment." United States v. Salvatore, 110 F.3d 1131, 1145

(5th Cir. 1997) (citation and internal quotation marks omitted).

A constructive amendment can also occur if "the trial court

`through its instructions and facts it permits in evidence, allows

proof of an essential element of a crime on an alternative basis

permitted by the statute but not charged in the indictment.'" Id.

(quoting United States v. Slovacek, 867 F.2d 842, 847 (5th Cir.),

cert. denied, 490 U.S. 1094, 109 S.Ct. 2441 (1989)). The

determinative question is whether the jury was allowed to convict

the defendant based "upon a set of facts distinctly different from

that set forth in the indictment." United States v. Chandler, 858

F.2d 254, 257 (5th Cir. 1988) (citation and internal quotation

marks omitted). Constructive amendments are reversible per se

because the defendant may have been convicted on a basis not

alleged in the indictment. United States v. Young, 730 F.2d 221,

223 (5th Cir. 1984).

Caldwell contends that the Government's closing argument and

the jury charge constructively amended the indictment. The

indictment charged that:

On or about between September, 1995 and February 7, 1996,
. . . [Caldwell] . . . with intent that Walter Axley
engage in conduct constituting a felony . . . did
solicit, command, induce an endeavor to persuade Walter

10
 Axley to engage in such conduct, that is, to maliciously
damage and destroy and attempt to damage and destroy by
means of fire, a building . . . used in or in an
activity affecting interstate commerce in violation of
[18 U.S.C.] Section 844(i) and 2, all in violation of [18
U.S.C.] Section 373.

Caldwell argues that "[t]he Government made no effort to prove

that [he] ever intended for Axley to personally commit arson as

specifically charged in the [i]ndictment. Instead, it simply

argued that the jury could convict based on a finding that

`Caldwell got Walt Axley to find someone to burn that funeral

home.'" Caldwell asserts that this argument was consistent with

the charge given by the court.7 Contrary to Caldwell's assertion,

the jury charge is nearly identical to the charge in the

indictment.8 More importantly, we do not believe that the jury was

allowed to convict Caldwell on a factual basis that effectively

7
We note that Caldwell failed to object at the time of this jury
argument. The Government does not argue that this claim should be
reviewed only for plain error. See United States v. Reyes, 102
F.2d 1361, 1365 (5th Cir. 1996) (reversal not required under plain
error standard even though this Court found the indictment had been
constructively amended). Perhaps this is because Caldwell did
raise the issue of constructive amendment in his motion for
judgment of acquittal filed after the verdict. In any event,
because we conclude that there was no constructive amendment, we
need not reach the question whether the issue was raised in a
timely manner in the district court.
8
In pertinent part, the indictment charges:

That, as described in the indictment, the defendant
solicited, commanded, induced or endeavored to persuade
Walter Axley to engage in conduct constituting a felony
that has as an element the use of physical force against
the person or property of another in violation of the
laws of the United States, that is: the malicious damage
or destruction by fire of a building or other property
used in or affecting interstate commerce "arson."

11
modified an essential element of the crime charged.

Caldwell nevertheless contends that although the indictment

charged him with soliciting Axley to commit arson, the evidence at

trial demonstrated that he solicited Axley to find a third party to

commit arson. Under either scenario, however, Caldwell was

soliciting Axley to commit arson.9 In other words, the jury was

not allowed to convict him "upon a set of facts distinctly

9
Relying on two Fifth Circuit cases, Caldwell argues that
because the phrase "that is" is used in the indictment, it must be
construed as charging him with soliciting Axley, and only Axley, to
actually commit arson. United States v. Adams, 778 F.2d 1117 (5th
Cir. 1985); United States v. Salinas, 654 F.2d 319 (5th Cir. 1981),
overruled on other grounds by United States v. Adamson, 700 F.2d
953 (5th Cir.), cert. denied, 464 U.S. 833, 104 S.Ct. 116 (1983).
We find both cases inapposite. In Salinas, the indictment charged
that the defendant aided and abetted Lewis Woodul, who was
president of the bank, in the misapplication of bank funds in
connection with a particular loan. At trial, however, the evidence
showed that another bank officer had approved that loan, and Woodul
had nothing to do with that loan. The court charged that jury that
it could convict Salinas if it found that he had aided and abetted
any officer, director, or employee of the bank. We found this to
be a constructive amendment of the indictment, explaining that
Salinas was charged with aiding and abetting Woodul and that once
it was shown that Woodul was not involved, "it begins to look like
[Salinas] was convicted of a crime different from that of which he
was accused." Id. at 325. Unlike Salinas, Caldwell was charged
with and convicted of the same crime, e.g., soliciting Axley.

In Adams, the defendant was charged with furnishing false
identification to a licensed firearms dealer in connection with a
handgun purchase. The indictment specifically alleged that the
driver's license was false in that it represented that the
defendant was named Ernest Cole rather than his legal name, Ernest
Adams. At trial, over objection, the Government presented evidence
showing that the address on his driver's license was also false.
Also over objection, the court's charge to the jury allowed it to
convict Adams based on the false statement as to his residence.
This Court held that the evidence and instructions constructively
amended the indictment. In Caldwell's case, however, the
indictment and jury instructions charged the same offense--no
elements of the offense were modified.

12
different from that set forth in the indictment." Chandler,

supra. Therefore, no constructive amendment of the indictment

occurred.

Caldwell's argument is more akin to a claim of variance

between the proof and the indictment. "A variance occurs where the

evidence proves facts different from those alleged in the

indictment, but does not modify an essential element of the charged

offense." Salvatore, 110 F.3d at 1145. We review a variance claim

for harmless error and will reverse only upon a showing that the

variance prejudiced the defendant's substantial rights. In making

this determination of prejudice, "[t]he concerns underlying our

cases on variance are to ensure that the indictment notifies a

defendant adequately to permit him to prepare his defense, and does

not leave the defendant vulnerable to a later prosecution because

of failure to define the offense with particularity." United

States v. Dean, 59 F.3d 1479, 1491 (5th Cir. 1995), cert. denied,

__ U.S. __, 116 S.Ct. 748 (1996).

Because Caldwell cannot show that his substantial rights were

prejudiced, we assume without deciding that the proof adduced at

trial constituted a variance. The record makes clear that, as

early as the pretrial detention hearing, he was aware that the

Government's theory of the case was that he solicited Axley to hire

a third party to commit the arson. Caldwell cannot now claim that

the indictment failed to give him sufficient notice to adequately

prepare his defense. Additionally, Caldwell does not argue, nor do

13
we believe that the offense was defined with such a lack of

particularity as to leave him vulnerable to a later prosecution.

Under these circumstances, we find the error, if any, harmless.

C. GOVERNMENT'S USE OF FALSE TESTIMONY

Caldwell argues that the Government improperly elicited false

testimony from Axley. To obtain reversal, Caldwell must show: (1)

the challenged testimony was actually false; (2) the testimony was

material; and (3) the Government knew that it was false. United

States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993), cert. denied,

513 U.S. 830, 115 S.Ct. 102 (1994).

In support of his argument, Caldwell points to Axley's

testimony at trial that Caldwell initiated the discussion regarding

arson during their first meeting on the airplane. Caldwell

compares this testimony with the testimony of Agent Duncan, who

stated under oath prior to trial that Axley informed him that arson

was not discussed until a subsequent meeting.

While Caldwell has shown conflicting testimony as to one

detail, he falls short of showing that Axley's testimony was false.

Even assuming the testimony was false and the Government had

knowledge of it, Caldwell has failed to show that the testimony was

material. He argues that the testimony was material because it

portrayed him as the initiator of the discussions of arson, and it

prevented him from presenting an otherwise viable entrapment

defense. These arguments are entirely without merit.

Caldwell has never denied that he brought up the subject of

14
burning the funeral home in his conversations with Axley. During

the pretrial hearing, Caldwell took the stand, and the district

court inquired whether Caldwell was going to testify that it was

Axley that "came up with the idea of burning down the place."

Caldwell responded "No, sir, I'm not going to tell you that."

Caldwell further admitted that he "did come to [Axley]. And I

asked [Axley,] but that was the only time in a moment and that was

the only time. There was no reason." In light of these

admissions, Caldwell is precluded from showing that the complained

of testimony was material, and thus, this claim fails.

D. ADMISSION OF HEARSAY

Caldwell argues that the district court erred in allowing

certain hearsay testimony. Specifically, Axley testified regarding

what other prosecution witnesses had told him about Caldwell. This

Court reviews evidentiary error for abuse of discretion. United

States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996).

On cross examination, Axley admitted that he was strongly

biased against Caldwell, that he desired to have Caldwell

convicted, and that he had expressed these sentiments in front of

several prosecution witnesses prior to trial. Defense counsel also

inquired whether Axley and another prosecution witness agreed that

they "need[ed] to get this guy [Caldwell]." Axley responded "I

wouldn't have said it if he hadn't said what he said to me." On

redirect, the Government asked Axley to testify regarding the

reasons the other witnesses reported for their "predisposition

15
against Mr. Caldwell." Caldwell objected that the statements were

inflammatory, hearsay, not probative, and highly prejudicial. The

court overruled his objections, stating that Caldwell had "opened

the door to this."

We are not persuaded by the Government's argument that

Caldwell "opened the door" to the challenged testimony. See United

States v. Gibson, 363 F.2d 146, 148 (5th Cir. 1966) (explaining

that "[p]roper cross-examination on the Agent's knowledge of the

affair did not open the gates to an avalanche of hearsay testimony

on what might have been said by other unidentified parties"). In

any event, in light of the direct evidence of Caldwell's

solicitation preserved in the recorded conversations, we fail to

see how the evidence of the other witnesses' predisposition against

Caldwell could have had a substantial impact on the jury's verdict.

Thus, any error is harmless. Dickey, 102 F.3d at 163.

E. UNANIMITY INSTRUCTION

Caldwell contends that the district court erred in refusing to

give a requested unanimity instruction to the jury. Caldwell

objected to the court's failure to instruct the jurors that, to

find him guilty, they must unanimously agree on at least one act

that constituted solicitation. This Court presumes a district

court has abused its discretion if it refuses to charge on a

defense theory for which there is an evidentiary foundation and

which, if believed by the jury, would be legally sufficient to

render the accused innocent. United States v. Correa-Ventura, 6

16
F.3d 1070, 1076 (5th Cir. 1993). The following three-part test is

used for determining reversible error: if the instruction (1) was

substantially correct; (2) was not substantially covered in the

charge delivered to the jury; and (3) concerned an important issue

so that the failure to give it seriously impaired the defendant's

ability to present a given defense. Id.

Here, the court gave a general unanimity instruction to the

jury.10 "In the routine case, a general unanimity instruction will

ensure that the jury is unanimous on the factual basis for a

conviction, even where an indictment alleges numerous factual bases

for criminal liability." United States v. Holley, 942 F.2d 916,

926 (5th Cir. 1991) (citation omitted). "However, such an

instruction will be inadequate to protect the defendant's

constitutional right to a unanimous verdict where there exists a

genuine risk that the jury is confused or that a conviction may

occur as the result of different jurors concluding that a defendant

committed different acts." Id. (citation omitted) (internal

quotation marks omitted).

Caldwell asserts that the primary evidence of solicitation

consisted of numerous statements he made during his several

conversations with Axley between September 1995 and February 7,

1996. He further asserts that the Government made no effort to

identify the statements that would constitute a solicitation, and

10
"Any verdict must represent the considered judgment of each
juror. To return a verdict, each juror must agree to the verdict.
In other words, your verdict must be unanimous."

17
the term was not defined for the jury.

In United States v. Correa-Ventura, we explained that there

are two levels of unanimity: "unanimity as to verdict and

unanimity as to the critical facts necessary to support that

verdict." 6 F.3d at 1078. On one hand, unanimity is more than a

conclusory agreement that the defendant has violated the statute.

Id. On the other, courts have acknowledged "the concern that

demanding total factual concurrence on each detail of the crime's

commission is not warranted and will make it impossible for the

government to obtain a conviction." Id. We observed that the

Supreme Court has time and again recognized that "different jurors

may be persuaded by different pieces of evidence, even when they

agree upon the bottom line. Plainly there is no general

requirement that the jury reach agreement on the preliminary

factual issues which underlie the verdict." Id. (citing McKoy v.

North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 1237 (1990)

(Blackmun, J. concurring)).

In Correa-Ventura, the appellant argued that the court erred

by not requiring the jurors to unanimously agree on which of the

weapons seized from his residence was used in commission of the

drug trafficking offense in violation of 18 U.S.C. § 924(c). We

opined that that case was distinguishable from a case in which

there could be a difference among jurors as to which of the

statutorily enumerated means was used to commit the same crime.

E.g., United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977)

18
(defendant charged with violating statute that prohibited six

different acts: receiving, concealing, storing, bartering,

selling, or disposing of a stolen vehicle moving in interstate

commerce).

Correa-Ventura did not involve an election between statutory

means, instead, it was purely a question of unanimity, i.e.,

"whether the firearm component of the crime require[d] factual

concurrence." 6 F.3d at 1080. "We conclude[d] that factual

concurrence must be viewed on a case-by-case basis to address the

concerns discussed above and to insure that the purposes of

unanimity are satisfied." Id. at 1082. This Court instructed

that:

Statutory language and construction, legislative intent,
historical treatment of the crime by the courts,
duplicity concerns with respect to defining the offense,
and the likelihood of jury confusion in light of the
specific facts presented are all necessary inquiries to
be addressed before a trial judge can ascertain whether
he must instruct the jury to concur in predicate facts as
well as in result.

Id. When examining the above factors, the court must consider

precisely what conduct the statute is intended to punish and deter.

Id. In that case, we determined that a specific unanimity

instruction was not required to determine the identity of the

firearm.

Like Correa-Ventura, the instant case does not involve an

election between statutory means, but instead the question is

whether factual concurrence is required in regard to what

particular act(s) constituted solicitation. In other words, if

19
some jurors believed that certain statements or acts constituted

the offense of solicitation of arson and other jurors believed that

different statements or acts constituted solicitation, does that

disagreement indicate a reasonable doubt that Caldwell committed

the offense of solicitation of arson? See Correa-Ventura, 6 F.3d

at 1082-83.

The statute in question, 18 U.S.C. § 373 provides that:

Whoever, with intent that another person engage in
conduct constituting a felony that has an element the
use, attempted use, or threatened use of physical force
against property or against the person of another in
violation of the laws of the United States, and under
circumstances strongly corroborative of that intent,
solicits, commands, induces, or otherwise endeavors to
persuade such other person to engage in such conduct,
shall be imprisoned not more than one-half the maximum
term of imprisonment . . . prescribed for the punishment
of the crime solicited . . . .

The plain language of § 373 does not indicate a requirement of

unanimity regarding what particular statements or acts constitute

solicitation. As the Government asserts, the focus of the offense

is persuading one to commit that offense, and persuasion of another

could certainly include acts and statements occurring over a period

of time.

Indeed, the legislative history of § 373 gives the following

examples of strongly corroborative circumstances that are probative

of intent: "the fact that the defendant repeatedly solicited the

commission of the offense, held forth at length in soliciting the

commission of the offense, or made express protestations of

seriousness in soliciting the commission of the offense." United

20
States v. Gabriel, 810 F.2d 627, 635 (7th Cir. 1987) (quoting

S.Rep. No. 307, 97th Cong., 1st Sess. 183, (1982)) (emphasis

added). This language does not support a conclusion that verdict

specificity regarding the precise act or statement that constituted

solicitation is required. Rather, it counsels the opposite.

In regard to duplicity concerns, "where each instance of

allegedly criminal activity could be a separate offense, courts are

more inclined to require that jurors be unanimous as to which

instance is the basis of liability." Correa-Ventura. That is not

a problem in this case. This case involved only one offense of

solicitation. Caldwell spoke to only one person regarding the

burning of one building. There seems little likelihood of jury

confusion on the facts of this case. We are satisfied that the

district court did not abuse its discretion in refusing to give a

specific unanimity instruction.11

F. OBSTRUCTION OF JUSTICE

Caldwell argues that the district court erred in imposing a

two-level increase in his offense level for obstruction of justice

based on a finding of perjured testimony. U.S.S.G. § 3C1.1. A

district court's finding that a defendant has obstructed justice

11
Caldwell also contends that the court should have instructed the
jurors that they must unanimously agree that the funeral home was
engaged in an activity affecting interstate commerce when the act
of solicitation was committed. As set forth previously, the
earliest date Caldwell proposed for the arson was December of 1995,
and Caldwell does not dispute that the interstate commerce element
was satisfied at that time. Under these circumstances, the
district court did not abuse its discretion in refusing to give
this instruction.

21
under section 3C1.1 is a factual finding and thus, reviewed for

clear error. United States v. Laury, 985 F.2d 1293, 1308 (5th Cir.

1993).

Section 3C1.1 provides that: "[i]f the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution, or

sentencing of the instant offense, increase the offense level by 2

levels."12 If a district court finds that a defendant has committed

perjury at trial, an enhancement is required under section 3C1.1.

United States v. Humphrey, 7 F.3d 1186, 1189 (5th Cir. 1993).

Caldwell asserts that the sentencing court (Judge Maloney),

over his objection and without making any independent findings,

imposed this enhancement based solely on a finding made by Judge

Buchmeyer, who had presided over the pretrial detention hearing,

that he had committed perjury during that proceeding. Caldwell

argues that this was inadequate because "[t]he district court was

required to actually make a finding as to whether Appellant lied

and, if so, whether he lied as to a material matter."

The Supreme Court has opined that "[i]f a defendant objects to

a sentence enhancement resulting from her trial testimony, a

district court must review the evidence and make independent

findings necessary to establish a willful impediment to or

12
The commentary lists committing perjury and providing materially
false information to a judge or magistrate as examples of conduct
to which the enhancement applies. U.S.S.G. § 3C1.1 comment.
(n.3(b) and (f)).

22
obstruction of justice, or an attempt to do the same, under the

perjury definition." United States v. Dunnigan, 507 U.S. 87, 113

S.Ct. 1111, 1117 (1993). "A witness testifying under oath or

affirmation [commits perjury] if she gives false testimony

concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake or

faulty memory." Id. at 1116. When the district court is making

such a finding, the preferable practice is to address each element

of the alleged perjury in a separate and clear finding. Id. at

1117. The finding is sufficient, however, if the court makes a

finding of an obstruction or impediment of justice that encompasses

all of the factual predicates for a finding of perjury. Id.13

In regard to whether the sentencing court actually made an

independent finding, the Government's brief points out that "[t]he

sentencing judge overruled Caldwell's objection to the obstruction

of justice enhancement, stating that he was basing his ruling `on

Judge Buchmeyer's findings after the hearing that the defendant

lied to him in connection with the hearing involved and the facts

13
This Court has affirmed an obstruction of justice enhancement
based on the following findings by a district court:

Obviously if the jury's verdict means anything, then Mr.
Laury did commit perjury when he testified, and I believe
the jury's verdict means exactly what it found. . . .
If the jury had been convinced that Laury had obtained the money as
he indicated, it may have affected the determination of guilt.
Statements made by the defendant were made in an effort to obstruct
or impede the administration of justice during prosecution.

Laury, 985 F.2d at 1309.

23
of this case.'" Relying on United States v. Cabral-Castillo, the

Government asserts that it was permissible for the district court

to adopt the findings of another judge. 35 F.3d 182 (5th Cir.

1984), cert. denied, __ U.S. __, 115 S.Ct. 1157 (1995). In Cabral-

Castillo, the sentencing judge overruled the defendant's

objections, opining that, in regard to "the obstruction of justice

[finding], which has to do with his allegedly false testimony,

there is a finding that was made by another Court on that, and the

Probation Office just reflected that. And I think that's a fact

finding that I'm entitled to rely on." Id. at 186. Because the

sentencing judge adopted the findings of the other judge, we

treated those findings as his own findings. Id.; cf. Laury, 985

F.2d at 1308 n.18 (explaining that when the court adopts the

findings in the presentence report, they are treated as his own

findings). Therefore, in the instant case, we may treat Judge

Buchmeyer's findings as if they were made by the sentencing court.

The next question is whether those findings were sufficient to

indicate that the perjured testimony was "material." The

commentary to § 3C1.1 provides that "`[m]aterial' evidence, fact,

statement, or information, as used in this section, means evidence,

fact, statement, or information that, if believed, would tend to

influence or affect the issue under determination." § 3C1.1,

comment. (n.5).

After hearing Caldwell's testimony at the detention hearing,

Judge Buchmeyer found that:

24
 Caldwell lied repeatedly during his testimony at the
February 13, 1996 hearing. His "explanations" that he
was never serious about burning down the funeral home,
that he "merely" engaged in discussions on the tapes
because he was afraid of the informant, and that he was
a reluctant participant in these discussions, were false.
The defendant was not credible, and this Court rejects
his testimony.

Apparently neither the sentencing court nor Judge Buchmeyer

expressly found that Caldwell's false testimony was material.

Nevertheless, this Court has upheld an implicit finding of

materiality when it determined that the testimony was designed to

substantially affect the outcome of the case. Cabral-Castillo, 35

F.3d at 187.

Here, it is clear that Caldwell's testimony at the pretrial

detention hearing was designed to substantially affect the outcome

of that proceeding. The two issues at the hearing were (1) whether

probable cause existed to find that Caldwell committed the offense

of solicitation to commit arson and (2) whether the Government

presented clear and convincing evidence that no conditions of

release will reasonably assure the safety of other persons and the

community. If Judge Buchmeyer had credited Caldwell's testimony

that he was not serious about the arson, the outcome of the

proceeding presumably would have been different. Although the

district court's findings could have been more detailed, after

reviewing the record, we conclude that it is clear that the court

found the testimony material. See United States v. Como, 53 F.3d

87, 91 (5th Cir. 1995), cert. denied, __ U.S. __, 116 S.Ct. 714

(1996).

25
AFFIRMED.

26