United States Court of Appeals
For the First Circuit
No. 02-2516
UNITED STATES OF AMERICA,
Appellee,
v.
UMESH PATEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Douglas S. Brooks, with whom Thomas M. Hoopes and Kelly, Libby
& Hoopes, P.C. were on brief, for appellant.
William C. Brown, with whom Michael J. Sullivan, United States
Attorney, was on brief, for appellee.
May 27, 2004
HOWARD, Circuit Judge. On January 17, 2001, Umesh Patel
was indicted for setting fire to his business and then attempting
to collect insurance proceeds for the resulting damage. On May 17,
2002, following a fourteen-day jury trial, Patel was convicted on
one count of arson, see 18 U.S.C. § 844(i), two counts of mail
fraud, see 18 U.S.C. § 1341, and one count of using fire to commit
mail fraud, see 18 U.S.C. § 844(h)(1). Patel was sentenced to 204
months of imprisonment: 84 months to run concurrently for arson and
mail fraud and 120 months to run consecutively for using fire to
commit mail fraud.1 On appeal, Patel argues that there was
insufficient evidence of arson and that his sentence violated the
Double Jeopardy Clause of the Fifth Amendment. We affirm.
SUFFICIENCY OF THE EVIDENCE
Patel claims that there was insufficient evidence that he
committed arson. See Fed. R. Crim. P. 29. In evaluating this
claim:
[W]e must determine whether the evidence,
taken in the light most favorable to the
government--a perspective that requires us
to draw every reasonable inference and to
resolve credibility conflicts in a manner
consistent with the verdict--would permit
a rational trier of fact to find each
element of the crime[] charged beyond a
reasonable doubt. The government can meet
this burden by either direct or
circumstantial evidence, or by any
combination of the two. Moreover, the
1
Patel was also sentenced to 5 years of supervised release
and ordered to pay restitution and a special assessment.
-2-
government need not disprove every
hypothesis consistent with the defendant's
innocence; rather, it is enough that a
rational jury could look objectively at the
proof and supportably conclude beyond a
reasonable doubt that the defendant's guilt
has been established.
United States v. Santana, 175 F.3d 57, 62 (1st Cir. 1999)(internal
quotations and citations omitted).
Arson requires proof that the defendant (1) maliciously
damaged or destroyed (2) by fire or an explosive (3) a building
used in interstate commerce. See 18 U.S.C. § 844(i); United States
v. Ruiz, 105 F.3d 1492, 1499 (1st Cir. 1997). The government
sought to prove that, on February 7, 2000, Patel committed arson by
setting fire to the Crossing Corner Market, a convenience store
that Patel owned and operated in Beverly, Massachusetts. Patel
argues that he is entitled to a judgment of acquittal because the
evidence was insufficient to establish (1) that the fire was set
intentionally and (2) that he was the one who set the fire.
The government introduced ample evidence that the fire
was set intentionally. Two "fire cause" investigators testified
that the fire had been purposely set at two separate locations in
the store. Wayne Miller, a "fire and explosion analyst," testified
that, based on his investigation, the fires began on the main floor
of the store near the beverage coolers and in the basement under
the electrical panels. He further testified that "the fire was
intentionally set using an open flame and readily combustible
-3-
material." Similarly, Michael Hennessy, a fire investigator
certified by the International Association of Arson Investigators
and National Association of Fire Investigators, concluded, based on
his own investigation, that the fire was "incendiary" in nature and
had two independent points of origin on the first floor and in the
basement. He further concluded that the fire was started "by a
human act and an open flame."
To support Miller's and Hennessy's conclusions, the
government presented other testimony confirming that the fire
pattern indicated that separate fires had been set at two locations
in the store. In addition to evidence affirmatively demonstrating
an intentionally lit fire, the government presented testimony
ruling out other possible accidental causes for the fire, including
a malfunction in the electrical and mechanical components present
in the building.
Patel claims that the jury was not entitled to believe
this testimony because the Beverly Fire Department investigator,
Louis Bennett, the first investigator to inspect the scene,
testified that the fire was caused by a malfunction in the
compressor that operated beneath the cooler on the first floor. As
indicated above, other witnesses offered contrary testimony. Where
the jury hears conflicting testimony, it decides which version to
credit. See United States v. O'Brien, 14 F.3d 703, 707 (1st Cir.
1994) ("[A] jury can freely choose to credit particular testimony
-4-
while discounting other testimony that arguably points in a
different direction."). There were several reasons that the jury
could have decided not to credit Bennett's testimony. First,
Bennett testified that his conclusions were only "preliminary."
Second, he admitted that he did not fully inspect the compressor.
Third, there was other testimony that he did not do "a thorough
job" investigating the scene. Fourth, he stated that subsequent
information showing that the compressor may not have been the cause
of the fire opened an "avenue beyond [his] level of expertise."
Finally, at one point during the investigation, he changed his
opinion from the "possibility of an accidental [fire] to the
possibility of an incendiary suspicion."2 In short, while
reasonable people perhaps could have credited Bennett's testimony,
we do not sit "as a thirteenth juror who may set aside a verdict
because we [may] have reached a different result." Ruiz, 105 F.3d
at 1502 (internal quotations and citation omitted).
Patel next argues that, even if someone intentionally set
the fire, there was inadequate proof that it was he. The
2
Patel suggests that the jury was compelled to believe
Bennett's opinion because his investigation occurred before the
investigations by Miller and Hennessy. The government, however,
presented testimony that this time lapse did not affect the
accuracy of the later investigations because the critical evidence
(fire and heat patterns) was not affected by the delay. The jury
was free to consider this testimony in deciding whose testimony to
credit.
-5-
government presented evidence that, even though Patel did not own
the building in which his store was located, he carried a $75,000
insurance policy on the store's contents. The government also
showed that Patel was in dire financial straits on the date of the
fire. In the years prior to the fire, sales at his store had
decreased, and he was relying, to a large degree, on revenues
generated by lottery sales. In 1999, the year before the fire,
lottery sales accounted for 40% of the store's net income. Just
prior to the fire, the Massachusetts Lottery Commission had revoked
Patel's lottery license because of his repeated failure to pay the
Commission. A week before the fire, the Commission deactivated
Patel's lottery machines and sent a representative to Patel's store
to retrieve the instant game scratch tickets. On the date of the
fire, Patel owed the Commission over $40,000.
Besides lottery debt, Patel was suffering other financial
problems. For example, Patel had failed to pay a supplier a $5,500
debt, and this debt had been referred to an attorney for
collection. There was also evidence that Patel had bounced checks
to several other vendors. The month before the fire, Patel had
written over $10,000 in checks for which there were insufficient
funds.
In addition to Patel's financial difficulties, the
government presented evidence that, when the fire began, Patel was
alone in the store. Further, in the days before the fire, Patel
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told several people that he thought that the circuit breakers in
his store were a fire hazard. However, after the fire, he denied
making such statements.
Patel contends that this evidence was insufficient to
convict him of arson because there was no evidence establishing a
direct link between him and the fire. It is true that the evidence
inculpating Patel was largely circumstantial. Circumstantial
evidence "asserts something else from which the trier of fact may
either (i) reasonably infer the truth of the proposition or (ii) at
least reasonably infer an increase in the probability that the
proposition is in fact true." Ruiz, 105 F.3d at 1500 (internal
quotations and citations omitted). A guilty verdict may be based
entirely on circumstantial evidence. See United States v. Scharon,
187 F.3d 17, 21 (1st Cir. 1999); United States v. Andujar, 49 F.3d
16, 20 (1st Cir. 1995); United States v. Batista-Polanco, 927 F.2d
14, 17 (1st Cir. 1991).
Here, the circumstantial evidence was sufficient for the
jury to conclude that Patel set the fire. As discussed above,
there was ample evidence that the fire was set intentionally.
Further, the evidence showed that (1) Patel was alone at the time
of the fire, giving him an opportunity to commit the crime, and (2)
he had substantial financial troubles, providing him with a motive.
In addition, Patel's pre-fire warnings that there might be an
electrical fire in his store could have been interpreted as an
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attempt to cover-up the crime by offering a false explanation for
the fire. Taken together, this evidence could lead a reasonable
jury to conclude that Patel had set the fire.3
Recently, the Eighth Circuit rejected a similar
sufficiency challenge. In United States v. Schnapp, 322 F.3d 564,
566 (8th Cir. 2003), the defendant's parents owned a convenience
store that the defendant managed. The store, which was covered by
fire insurance, was suffering financial difficulties. See id. at
567-68. The defendant was alone in the store just before the fire
began and there was evidence that the fire was set intentionally.
See id. at 566-67. The court concluded that these facts supported
the conviction because the evidence showed that someone had
committed arson and that the defendant had "the opportunity and
means to commit the crime." Id. at 573.
The Seventh Circuit reached a similar conclusion in
United States v. Lundy, 809 F.2d 392 (7th Cir. 1987). In Lundy,
the defendant also owned a convenience store, covered by fire
insurance, that was suffering financially. See id. at 393-94.
Prior to the fire, the defendant moved several empty boxes to the
3
Patel argues that he should have been found not guilty
because he presented evidence that an unknown intruder started the
fire after entering the store through a hole in the basement wall.
Putting aside the conflicting evidence on whether this hole
existed on the date of the fire and whether it provided access to
the outside of the building, the evidence "need not exclude every
hypothesis of innocence" to sustain a conviction. United States v.
Scantleberry-Frank, 158 F.3d 612, 616 (1st Cir. 1998) (quoting
Batista-Polanco, 927 F.2d at 17).
-8-
rear of the store, a practice that the defendant previously had
called a fire hazard. See id. at 394. On the date of the fire,
the defendant was alone in the store for a half hour before the
fire was reported. See id. Investigators later concluded that the
fire "was incendiary in nature." Id. The court determined that
there was sufficient evidence to uphold the arson conviction
because the government presented evidence "of [the defendant's]
motive to set the fire, his plan . . . , his opportunity to carry
out the plan, and evidence that [the store] did not burn
accidentally." Id. at 396. Similar to Schnapp and Lundy, the
government presented evidence of Patel's motive and opportunity,
that he attempted a cover-up, and that the fire was set
intentionally. This evidence is sufficient to sustain Patel's
conviction.
DOUBLE JEOPARDY
Patel contends that his sentence for violating 18 U.S.C.
§ 844(i) (arson), 18 U.S.C. § 1341 (mail fraud), and 18 U.S.C. §
844(h)(1) (using fire to commit a felony) must be vacated because
it contains multiple punishments for the same offense in violation
of the Double Jeopardy Clause, U.S. Const. amend. V. Patel claims
that his sentence is unlawful because "once the jury found him
guilty of arson and mail fraud all of the elements of the use of
fire count were met." This argument was not raised below and
therefore will be considered only for plain error. See United
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States v. LiCausi, 167 F.3d 36, 46 (1st Cir. 1999) (citing United
States v. Kayne, 90 F.3d 7, 10 (1st Cir. 1996)).
As relevant here, the Double Jeopardy Clause protects
against multiple punishments for the same offense. See United
States v. Rivera Martinez, 931 F.2d 148, 152 (1st Cir. 1991). The
Clause, however, "does no more than prevent the sentencing court
from prescribing greater punishment than the legislature intended."
Missouri v. Hunter, 459 U.S. 359, 365 (1983). The limited effect
of the Double Jeopardy Clause on multiple punishment claims derives
from "the principle that the power to define criminal offenses and
prescribe punishments . . . belongs solely to the legislature."
United States v. Handford, 39 F.3d 731, 735 (7th Cir. 1994). As a
result, if the legislature decides to impose multiple punishments
for the same offense, it may do so. See Garrett v. United States,
471 U.S. 773, 779 (1985). Thus, determining the permissibility of
imposing multiple punishments for one course of conduct is a matter
of discerning the legislature's intent. See Albernaz v. United
States, 450 U.S. 333, 344 (1981).
Often, however, this intent will not be apparent. In
such cases, the Blockburger test is employed to determine whether
the legislature intended to authorize multiple punishments. See
United States v. Blockburger, 284 U.S. 299 (1932); Catala Fonfrias
v. United States, 951 F.2d 423, 425-26 (1st Cir. 1991). Under
Blockburger, "where the same act or transaction constitutes a
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violation of two (or more) distinct statutory provisions, the test
to be applied to determine whether there are two (or more) offenses
or only one is whether each provision requires proof of an
additional fact which the other does not." Blockburger, 284 U.S.
at 304. It must be emphasized, however, that for multiple
punishment claims, Blockburger merely provides a default rule of
statutory construction and should be employed only in the absence
of a clear indication of legislative intent. See Rivera Martinez,
931 F.2d at 154-55 (citing Hunter, 459 U.S. at 367).
Patel relies exclusively on Blockburger in framing his
argument. Were we to reflexively apply Blockburger to this case,
Patel's claim might well have some merit. Mail fraud and using
fire to commit mail fraud appear to fail Blockburger's separate
offense test because every element of mail fraud is an element of
using fire to commit mail fraud. See Whalen v. United States, 445
U.S. 684, 693-94 (1980) (holding that rape and a "killing committed
in the course of a rape" are the same offense under Blockburger
because the killing charge requires proof of all the elements of
the rape charge and therefore, in the absence of a contrary
legislative intent, separate punishments are impermissible).
However, Patel has entirely ignored the threshold question for
reaching the Blockburger analysis in the first place, namely, what
was Congress' intent in enacting the using fire statute. This is
where his argument falters.
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Congress intended the using fire statute to enhance the
penalty for those who use fire while committing another federal
felony and to authorize multiple punishments in such cases. The
statute reads:
Whoever . . . uses fire . . . 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 . . .
[T]he term of imprisonment imposed under this
subsection [shall not] run concurrently with
any other term of imprisonment.
18 U.S.C. § 844(h)(1) (emphasis supplied). 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. If further
support were needed, the legislative history reinforces this
intent. The legislative record states that the proposed law makes
it an "additional offense" to use fire in connection with a felony
and provides for "a sentence in addition to the sentence for the
predicate offense." H.R. Rep. No. 678, 97th Cong., 2d Sess.,
reprinted in 1982 U.S.S.C.A.N. 2631, 2633 (legislative history to
the Anti-Arson Act of 1982, Pub. L. 97-298).4 As the statute's
text and legislative history express, Congress meant to punish
4
The legislative history also indicates that Congress
specifically intended to punish those who use fire to commit
insurance fraud. See id. at 2632 ("Fire is used extensively not
only for the criminal purposes of extortion, terrorism and revenge,
but to conceal other crimes such as homicide and for fraud against
insurance companies.").
-12-
using fire to commit a felony and the predicate felony
cumulatively.5 See Blacharski v. United States, 215 F.3d 792, 794-
95 (7th Cir. 2000); United States v. Stewart, 65 F.3d 918, 928
(11th Cir. 1995); United States v. Shriver, 838 F.2d 980, 982 (8th
Cir. 1988).
Because Congress explicitly authorized cumulative
punishments for the predicate felony and using fire to commit the
predicate felony, there was no Double Jeopardy violation in
sentencing Patel for both mail fraud and using fire to commit mail
fraud, even though these constitute the "same offense" under
Blockburger. See Shriver, 838 F.2d at 982; Musone v. United
States, 113 F. Supp. 2d 255, 261 (D.R.I. 2000), aff'd, No. 00-2482,
2001 WL 1388915 (1st Cir. Oct. 3, 2001). Patel claims that he is
nevertheless entitled to relief because he was also convicted of
arson.
Neither the text nor the legislative history of the using
fire statute reveals whether Congress intended it to apply where
the defendant is also charged with arson. However, there is no
Double Jeopardy bar to imposing multiple punishments for arson and
5
There is, however, an important exception. See infra at 15-
16. Arson cannot be charged as the predicate felony because arson
and "using fire to commit arson" is a redundancy for which Congress
did not intend to authorize cumulative punishments. See United
States v. Chaney, 559 F.2d 1094, 1096 (7th Cir. 1977) (holding that
arson cannot be the predicate felony for purposes of the using fire
statute because arson always requires the use of fire and Congress
did not intend the using fire statute to increase the penalty for
every arson committed).
-13-
using fire to commit mail fraud because these are separate offenses
under Blockburger. Arson requires proof that a defendant, through
the use of 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. Therefore,
the addition of the arson conviction does not make Patel's
resulting sentence an impermissible cumulative punishment because
his punishments were imposed for different offenses.6 See United
States v. Smith, 354 F.3d 390, 399 (5th Cir. 2003), cert. denied,
2004 WL 316514 (U.S. Mar. 22, 2004); United States v. Gardner, 211
F.3d 1049, 1056-57 (7th Cir. 2000); United States v. Zendeli, 180
F.3d 879, 886 (7th Cir. 1997); United States v. Nguyen, 28 F.3d
477, 485 (5th Cir. 1994); United States v. Karlic, 997 F.2d 564,
571 (9th Cir. 1993); United States v. Fiore, 821 F.2d 127, 130-31
(2d Cir. 1987).
6
For similar reasons arson is not the same offense as mail
fraud; arson requires the setting of a fire, while mail fraud
requires the use of the mails to defraud. Therefore, cumulative
punishments for arson and mail fraud are also permissible.
-14-
In support of his claim, Patel relies on United States v.
Corona, 108 F.3d 565, 573-75 (5th Cir. 1997). Corona, however, is
distinguishable. In Corona, the defendants were convicted of
arson, conspiracy to commit arson, and using fire to commit
conspiracy to commit arson. See id. at 571. The overt act for the
conspiracy was setting the fire underlying the arson count. See
id. at 573. The court held that, consistent with Double Jeopardy
principles, cumulative punishments could not be imposed because the
essence of each of the three counts was the same, i.e. arson. See
id. For support, the court relied on Chaney, which had held that
arson could not be the predicate felony for a conviction under the
using fire statute because arson and "using fire to commit arson"
are the "same offense" (every arson requires the use of fire), and
Congress did not intend the using fire statute to enhance the
punishment for all arsons. See id. at 573; supra at n.5. The
Corona court determined that, where the act furthering the arson
conspiracy is setting the fire underlying the arson, charging
conspiracy as the predicate felony is just another way of charging
arson as the predicate felony.7 See id. The court declined to
7
The Corona court recognized that, if the overt act
furthering the conspiracy to commit arson was not the setting of
the fire underlying the arson charge, it could be possible for
arson conspiracy to serve as the predicate felony for the using
fire statute. See id. at 573-74. By way of example, the court
suggested that if the defendants had set a fire to communicate via
smoke signal about the arson conspiracy, the Double Jeopardy
problem could be obviated. See id.
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countenance this prosecutorial "sleight of hand" to avoid the rule
that a using fire conviction cannot be predicated on arson as the
underlying felony. Id.
Here, the predicate felony for the using fire offense is
mail fraud, not arson (as in Chaney) or conspiracy to commit arson
(as in Corona). The purpose of the using fire statute is to
enhance penalties for crimes that do not require but may involve
the use of fire. That is exactly the situation here. Mail fraud
is a felony that is typically completed without using fire;
however, Congress has determined that, where the defendant uses
fire to commit mail fraud, the defendant has committed a more
serious offense. Thus, unlike Corona, in which the government,
through "creative pleading" and contrary to congressional intent,
sought to employ the using fire statute to enhance the punishment
for arson, 108 F.3d at 574, the government charged Patel with
violating the using fire statute in the way that Congress intended
--to provide additional punishment for using fire in the commission
of a felony in which the use of fire is not an element of the
offense. See Smith, 354 F.3d at 399-400 (distinguishing Corona on
a similar basis).
Despite the dispositive differences between Corona and
this case, Patel seizes on the Corona court's statement that "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
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the other offenses" 108 F.3d at 572, to make an interesting and
novel argument that the using fire conviction is duplicative. In
essence, he claims that combining the elements of mail fraud and
arson satisfies all of the elements of the using fire offense.
Even if this mode of Blockburger analysis were
appropriate in this case, it likely would not assist Patel because
the using fire offense required the government to prove an
additional element not encompassed by combining the elements of
arson and mail fraud. Arson required proof that Patel set fire to
a building; mail fraud required proof that Patel used the mails to
further a scheme to defraud; and using fire to commit a felony
required proof that Patel 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: Patel 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 connecting 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.8
8
We have noted earlier that a conviction for arson requires
proof of an element not required for a use of fire conviction.
See supra at 14.
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Patel's argument has some surface appeal because the
government's case against him arose from one course of conduct and
therefore the facts presented to convict Patel of arson and mail
fraud were the same facts presented to establish the using fire
violation. However, we generally do not conduct a Blockburger
analysis by considering the facts of the case at hand. See United
States v. Lanoue, 137 F.3d 656, 662 (1st Cir. 1998) (citing United
States v. Dixon, 509 U.S. 668, 712 (1993)). As the Corona court
stated, "[d]etermining whether statutory offenses are separate for
double jeopardy purposes involves parsing the statutes apart from
the facts of any particular case." 108 F.3d at 572. Because the
using fire statute requires proof of an element in addition to
those required to prove arson and mail fraud (i.e., the arson fire
was set by the defendant to commit the mail fraud), Patel's
argument arguably fails.
In any event, we need not conclusively resolve these
legal issues at this juncture since Patel did not raise them in the
district court. Whatever merit Patel's "combination" argument may
have, the emergent law concerning "combination" double jeopardy
claims was neither "clear" nor "obvious" and therefore Patel cannot
establish plain error. See United States v. Marino, 277 F.3d 11,
32 (1st Cir. 2002). Accordingly, the sentence that the district
court imposed does not constitute reversible error.
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CONCLUSION
For the reasons set forth above, we affirm the conviction
and sentence.
Concurring opinion follows.
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LYNCH, Circuit Judge (concurring in part and concurring
in the judgment). I join the analysis of the majority in rejecting
Patel's claim that the evidence was insufficient to convict. As to
the double jeopardy claim, I join in the judgment. Because this
claim was not raised below, our review is only for plain error.
Patel must concede that if the mail fraud conviction is
compared one-on-one with the 18 U.S.C. § 844(h)(1) (using fire to
commit a felony) conviction, then there is no double jeopardy issue
because Congress intended an enhanced sentence. He also must
concede that if his arson conviction alone is compared one-on-one
with the § 844(h)(1) conviction, then there is no double jeopardy
problem because the elements are different. However, Patel's claim
raises an interesting issue not addressed directly by this court or
the United States Supreme Court. His argument is that when the
elements of the arson conviction and the elements of the mail fraud
conviction are combined together and then compared with the
elements of the § 844(h)(1) conviction, the Blockburger test is not
met. Cf. Blockburger v. United States, 284 U.S. 299, 304 (1932).
For each of the arson and mail fraud convictions Patel
received concurrent 84 month (seven year) sentences with mandatory
special assessments. It was the conviction for using fire to
commit a felony under § 844(h)(1) that added another ten years to
the sentence. Necessarily then, there is a second prong to Patel's
argument: that the Double Jeopardy Clause having been violated,
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the case should be remanded to the district court where, he argues,
it is the court, and not the prosecutor, which should have the
choice as to which of the duplicative convictions to vacate.
Because the district court judge considered this case an extreme
example of overcharging by the government that produced a sentence
that was inherently unfair and excessive, it is fairly clear that
the district court would choose to vacate the § 844(h)(1)
conviction.
On the threshold question -- whether there is any double
jeopardy violation -- we first ask whether there are indications
that Congress intended, via § 844(h)(1), to add a ten-year sentence
where someone has been convicted of arson and convicted of a
different felony that forms the underlying basis for the §
844(h)(1) conviction. See Missouri v. Hunter, 459 U.S. 359, 368-69
(1983). As the majority notes, there is no legislative history on
this point, and one cannot say with certainty that Congress did or
did not intend to add a ten-year sentence in these combination
circumstances.
We then revert to the Blockburger test. That test is
usually applied to only two offenses, to compare the elements of
the one with the elements of the other. Here, Patel asks us to
engage in a Blockburger comparison of three offenses. I see no
reason in theory why his proposed test -- that each offense must
contain an element not contained in the sum of the elements of the
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other offenses -- should not apply. See United States v. Corona,
108 F.3d 565, 572 (5th Cir. 1997); see also United States v. Davis,
793 F.2d 246, 248 (10th Cir. 1986). Corona is the only case
involving a Blockburger comparison of a combination of elements,
from offense A and offense B, with the elements of an offense C
that uses offense B as its underlying felony predicate. As the
majority correctly points out, Corona is distinguishable based on
the different crimes charged in that case. But the "combination"
claim raised by Patel is not obviously without merit.
The intuitive appeal of Patel's claim lies in the fact
that the same "fire" was used to prove both the arson offense and
the § 844(h)(1) offense. If the fire used to prove the arson had
been different from the fire used to perpetrate the underlying
felony in the § 844(h)(1) conviction, then the situation would be
different. The majority reasons that, even assuming that under
Blockburger each offense must contain an element not contained in
the sum of the elements of the other two offenses, Patel's argument
still most likely fails because the § 844(h)(1) offense does
require proof of an additional element not contained in the sum of
the elements of arson and mail fraud: namely, that Patel used fire
in order to commit the mail fraud. That response to Patel's
combination claim is entirely sensible.
But it may not comport with the way in which we are
supposed to separate out the elements of an offense for Blockburger
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purposes. We do not have direct guidance from the Supreme Court on
how to approach this type of combination claim. The government did
have to connect the use of fire in the arson to the mail fraud in
order to gain a conviction under § 844(h)(1). But common sense
suggests that once the government proved the elements of the arson
charge (using fire to burn down a building) and the elements of the
mail fraud charge (which in this case involved an insurance fraud
scheme tied to the very fire in the very building involved in the
arson charge), the connection between the two charges was already
made and thus all of the elements of the § 844(h)(1) offense were
already proven.9
In Corona, Judge Higginbotham noted that, in a
combination case where an offense B is also the felony underlying
the § 844(h)(1) offense, the overlay of § 844(i) and § 844(h)(1)
could well result in a double jeopardy violation if it were
impossible for the § 844(h)(1) underlying felony (offense B) to be
accomplished by a different "fire" from the "fire" used to
accomplish the arson. But because, hypothetically, two different
fires could be involved, the Corona court concluded that the
elements of § 844(i) and § 844(h)(1) were not necessarily the same.
Under one approach to Blockburger, the analysis would end there:
9
Although the arson statute, 18 U.S.C. § 844(i), does not
literally employ the phrase "uses fire," it does employ the phrase
"by means of fire." And this court has determined that the term
"uses" fire in § 844(h)(1) is the equivalent of "by means of" fire.
United States v. Ruiz, 105 F.3d 1492, 1503-04 (1st Cir. 1997).
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because two different fires could be involved in the § 844(i) and
§ 844(h)(1) offenses, the fact that the same fire is involved in
both offenses in a particular case would be irrelevant. Corona
declined to follow such a technical approach to analyzing the
elements of offenses under Blockburger, citing to the rule 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."
Corona, 108 F.3d at 574 (quoting Whalen v. United States, 445 U.S.
684, 693 n.7 (1980)). Instead, the Corona court held that double
jeopardy was violated because there was no evidence that the
defendants had actually used a different fire to carry out the §
844(h)(1) underlying felony from the fire used to perpetrate the
arson.
The majority opinion suggests that sort of fact-based
consideration of the offenses in a Blockburger analysis is
inappropriate. This court has said that under Blockburger one
looks to the elements of each offense rather than to the evidence
used to prove each element. United States v. Lanoue, 137 F.3d 656,
661 (1st Cir. 1998). But even that rule does not preclude, in some
instances, looking at the facts underlying the convictions. After
all, it is also our rule that if a conspiracy offense is "actually
used to establish the 'continuing series of violations' and 'in
concert' requirements needed to show an enterprise under 21 U.S.C.
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§ 848," then double jeopardy bars the § 848 punishment. Stratton
v. United States, 862 F.2d 7, 9 (1st Cir. 1988) (per curiam).
Further, when a statute references several other offenses, as §
844(h)(1) does, with a term as broad as "felony" (and thus does not
set forth language combining the new elements with those of the
specific underlying offenses), there may be some role for the facts
in determining whether there is a Blockburger violation. Cf.
Whalen, 445 U.S. at 708-12 (Rehnquist, J., dissenting) (suggesting
that the Blockburger test may be misdirected when applied to
statutes defining compound and predicate offenses). The law in
this area is not marked by clarity.
The majority's reasoning may be correct, but I am
uncomfortable endorsing it with any certainty. Nevertheless, one
thing that is certain is that there was no "plain" error here.
Going beyond that, even if Patel were correct on his
first argument, it is not at all clear that it would do Patel much
good. As to the second of his arguments, under the case law, the
choice of which of two convictions to vacate where those
convictions carry non-concurrent sentences appears to belong to the
government, not the district court. See United States v. Walters,
351 F.3d 159, 173 (5th Cir. 2003); Corona, 108 F.3d at 574-75;
United States v. Graham, 60 F.3d 463, 469 (8th Cir. 1995).
Although there is some law from other circuits which leaves the
choice of which conviction to vacate to the district court where
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two convictions resulted in concurrent sentences, see, e.g., United
States v. Hebeka, 25 F.3d 287, 291 (6th Cir. 1994); United States
v. Thomas, 810 F.2d 478, 479-80 (5th Cir. 1987), that situation is
obviously different. It is not impossible, if given the choice,
that the government might revisit its charging decision in this
case, which has led to a seventeen-year sentence for a first-time
offender who is the father of three young children. But thus far,
the government has withstood the district judge's entreaties that
it reconsider and has not given any indication it will change its
view. If the choice belongs to the prosecutor, even if Patel were
to prevail on his first argument, that victory would most likely be
pyrrhic.
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