United States Court of Appeals
Fifth Circuit
F I L E D
December 17, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________
m 02-31170
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELIZABETH BOYETT SMITH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 01-CR-348-1-N
_________________________
Before SMITH, BARKSDALE, and CLEMENT, sentence violates the double jeopardy clause of
Circuit Judges. the Fifth Amendment. Finding only harmless
error with respect to one evidentiary issue, we
JERRY E. SMITH, Circuit Judge: affirm.
A jury found Elizabeth Smith guilty of ar- I.
son, mail fraud, conspiracy, witness tampering, The underlying facts have their origin in a
and the use of fire in the commission of a scene familiar to many households: A mother
felony. She raises five claims of trial error and asks her son to perform a simple chore, he re-
contends that the district court misapplied the fuses, and she ends up having to hire one of
sentencing guidelines and that part of her the kids from the neighborhood to do the job
instead. Although ordinarily this would not numerous conversations between themselves
land anyone in federal prison, it is also not the and Smith in which she acknowledged her role
typical mother who would ask her son to set in the conspiracy and cover-up. The govern-
fire to a motel. Smith did just that. Motivated ment prosecuted Smith on the basis of those
by a desire to collect on a $325,000 insurance tapes and the testimony of Booty, Turnley, and
policy, she asked her son, Johnathon Williams, Spencer Smith. A jury returned a verdict of
to set fire to a motel she owned. When he guilty on all seven counts.1
refused, Smith turned to Josh Booty, a family
friend, and offered to buy him a truck if he II.
would burn down the motel. Smith claims a new trial is warranted by the
jury’s potential exposure to extrinsic evidence.
Acting under Smith’s direction, Booty bor- At the beginning of the trial, the government
rowed a truck from Williams’s roommate, An- provided jurors with a binder containing tran-
thony Turnley, and drove to the motel, where scripts of the surveillance tapes it planned to
he used a set of keys given to him by Smith to introduce into evidence. One of those tran-
enter the unoccupied motel, spread gasoline in scripts, detailing a statement Williams made to
several of its bedrooms, and set them (and the ATF, was for a tape that the government
nearly himself) on fire. Though damaged by did not introduce into evidence. During its
the fire, the motel was not completely de- deliberations, however, the jury sent a note to
stroyed. Smith, meanwhile, created an alibi for the court asking to see a copy of “Johnathon’s
herself by driving to another city with her Statement to ATF,” indicating it at least was
husband, Spencer Smith. She later made state- aware of the existence of the extrinsic evi-
ments to the FBI, the insurance company, and dence.
the grand jury accusing, among others, the fire
chief, mayor, and former police chief of setting The court refused the request, explaining
the fire. that the tape was not evidence that could be
used in deliberations. At no time did the
It did not take long for these well-laid plans transcript enter the jury room. On this basis,
to go up in smoke. When Booty returned the Smith argues that the verdict is tainted by an
truck to Turnley that night, he was carrying a exposure to improper evidence and that the
revolver, his eyebrows were singed, and he district court abused its discretion in denying
“reeked like a barn fire.” Startled by Booty’s her motion for a new trial without questioning
appearance, Turnley asked Booty what he had the jurors on their exposure to the transcript.
used the truck for, and was told about the fire
and Smith’s role in planning it.
The next day, after Turnley found the gas 1
The seven counts are (1) conspiracy to commit
cans Booty had left in the bed of his truck, arson and mail fraud, in violation of 18 U.S.C. §
Turnley’s father called the fire department and 371; (2) arson, in violation of 18 U.S.C. § 844(i);
turned over the cans as evidence. That started (3) mail fraud, in violation of 18 U.S.C. § 1341;
an investigation in which Turnley and Booty (4) use of fire to commit a felony, in violation of 18
cooperated with the Bureau of Alcohol, To- U.S.C. § 844(h); and (5)-(7) three counts of
bacco and Firearms (“ATF”) by tape recording witness tampering, in violation of 18 U.S.C.
1512(b).
2
We review only for abuse of discretion a explained by the fact that the transcripts in the
court’s handling of complaints of outside in- jurors’ binders were separated and identified
fluence on the jury. United States v. Sylvester, by tabs, one of which was visibly labeled
143 F.3d 923, 931 (5th Cir. 1998). “In grant- “Johnathon’s Statement 2.” Moreover, on
ing a broad discretion to the trial judge, we multiple occasions, trial testimony refers to the
acknowledge and underscore the obvious, that fact that Williams spoke with ATF agents. As
the trial judge is in the best position to evalu- a result, the mere fact that the jury was aware
ate accurately the potential impact of the com- of the existence of the transcript does not
plained-of outside influence.” United States v. prove that any individual juror read, or was
Ramos, 71 F.3d 1150, 1153-54 (5th Cir.1995). exposed to, the contents of the transcript.
The initial presumption that the jury is impar-
tial can be overcome by evidence that an In addition, there is no reason to believe
extrinsic factual matter affected deliberations. that the jury had meaningful exposure to the
United States v. Kelley, 140 F.3d 596, 608 evidence contained in the transcript. In deny-
(5th Cir. 1998). ing a new trial, the court detailed the proce-
dures it had used to limit the jury’s access to
The district court did not err in denying the transcripts:
Smith’s motion without first questioning the
jurors on their exposure to the transcript. A The jury was never afforded the opportu-
district court is not required to conduct a nity to turn to that transcription . . . and
“full-blown evidentiary hearing in every in- read only the transcript of the statements
stance in which an outside influence is brought which were contemporaneously played into
to bear upon a petit jury.” Ramos, 71 F.3d at evidence, and through the earphones pro-
1153. Rather, the court “must balance the vided each juror. The jurors were instruct-
probable harm resulting from the emphasis ed to pick up their books at the beginning
such action would place upon the misconduct of a recording, to turn to the appropriately
and the disruption involved in conducting a tabbed transcript and to read along. At the
hearing against the likely extent and gravity of end of each recording, the jurors placed
the prejudice generated by the misconduct.” their books of transcripts down beside their
Id.; United States v. Bernard, 299 F.3d 467, seats as instructed at the outset, and turned
476-77 (5th Cir. 2002), cert. denied, 123 S. their attention to evidence emanating from
Ct. 2572, and cert. denied, 123 S. Ct. 2572 the witness stand.
(2003). The court is not required to conduct
an investigation into claims of exposure that Smith does not dispute these facts and instead
are merely speculative. Kelley, 140 F.3d at suggests only one possible opportunity by
608. which a juror could have seen and read Wil-
liams’s statement. This is mere speculation
There is scant evidence that the jury was that does not trigger the requirement of a
exposed to the contents of the transcript. The broader investigation.2 Id.
jury was aware at least of the existence of the
transcript; otherwise, it could not have known
specifically to request a copy of “Johnathon’s 2
Needless to say, the government’s practice of
Statement to ATF.” This much, however, is handing out intended exhibits en masse before in-
(continued...)
3
Because Smith has shown that the jurors cases like the present one, in which the defen-
were at least minimally exposed to the tran- dant can do no more than show that the jury
script, inasmuch as they knew the statement improperly learned of the existence of a tran-
was in their binders, we must consider whether script, but nothing of its contents. Given such
that exposure had a prejudicial effect on the a de minimis intrusion on the jury, it is not an
verdict. Smith argues that it is the govern- abuse of discretion for the district court to re-
ment’s burden to prove that the exposure was quire some evidence of a prejudicial effect be-
harmless. Although this was once the law of fore burdening the government with a require-
the circuit, see, e.g., United States v. Luffred, ment that it prove the intrusion harmless.
911 F.2d 1011, 1014 (5th Cir. 1990), it is no
longer the case that any intrusion on the jury, The district court did not abuse its discre-
no matter how slight, creates a rebuttable pre- tion in finding that Smith was unable to make
sumption of prejudice to the defendant. In a colorable showing of prejudice. Unlike the
Sylvester, 143 F.3d at 932-34, we recognized situation in Luffred, 911 F.2d at 1015, on
that Smith v. Phillips, 455 U.S. 209 (1982), which Smith heavily relies, the transcript of
and United States v. Olano, 507 U.S. 725 Williams’s statement did not make it into the
(1993), undermined the presumption of pre- jury room and could not have been referenced
judice.3 Consistent with our longstanding rule during deliberations. In addition, the evidence
that a district court is entitled to discretion in in Williams’s statement was largely cumulative
investigating and resolving charges of jury of testimony that was properly before the
tampering, we held in Sylvester, 143 F.3d at jury.4 Smith is not entitled to a new trial on
934, that “only when the court determines that this ground.
prejudice is likely should the government be
required to prove its absence.” III.
Smith raises two challenges to the evidence.
To exercise this discretion properly, a dis- She argues first that the district court commit-
trict court must examine the complained-of in- ted reversible error by overruling an objection
trusion on the jury and determine whether it is to the government’s cross-examination of
of a nature and degree that is likely to have a Spencer Smith. We review evidentiary rulings
prejudicial effect. In some cases, the intrusion for abuse of discretion. United States v.
will be as serious as that in Remmer v. United Sprick, 233 F.3d 845, 852 (5th Cir. 2000).
States, 347 U.S. 227 (1954), in which the Even if we find error, rulings are subject to the
Court held that an attempt to bribe a jury fore- harmless error balancing test. United States v.
man was presumptively prejudicial to the de- Parker, 133 F.3d 322, 328 n.3 (5th Cir. 1998);
fendant. At the other end of the spectrum are United States v. Pace, 10 F.3d 1106, 1116
(5th Cir. 1993).
2
(...continued)
troducing them into evidence is risky.
4
Williams’s statement was relevant only to cor-
3
One court of appeals has reached the same roborate Booty’s claim that the fires were set at
conclusion. See United States v. Williams-Davis, Smith’s behest, and this was sufficiently done by
90 F.3d 490, 496-97 (D.C. Cir. 1996); but see Williams’s confirmation, in a separate audiotape
United States v. Dutkel, 192 F.3d 893, 896 (9th and transcript admitted into evidence, that Smith
Cir. 1999). had first asked him to set the fires.
4
During cross-examination, the govern- error is also rendered harmless beyond a rea-
ment’s attorney asked Spencer Smith: “Are sonable doubt by the overwhelming evidence
you aware that two weeks ago, your wife of defendant’s complicity in the arson, conspir-
called Keisha and Meredith [and] asked if they acy, and subsequent cover-up. Much of the
would testify today that Josh Booty was at evidence comes in the form of her own tape-
Kristenwood on January 23rd, as late as 8:00 recorded statements and therefore is highly
o’clock?” Spencer Smith responded: “Yes.” reliable.7
Because the question was asked in this form,
it was impossible for the jury to determine Smith’s remaining evidentiary issue is also
whether Spencer Smith was testifying solely without merit. She contends that one of the
that the phone call occurred, or whether he al- government’s experts offered an opinion that
so was confirming the government’s allegation exceeded the pre-trial disclosure mandated by
that the purpose of the call was to affect FED. R. CRIM. P. 16(a)(1)(G) and that the dis-
testimony. The defendant properly objected trict court should have remedied this violation
on the ground that this compound question as- by striking the offending testimony. A district
sumed facts not in evidence, and the objection court’s remedies for alleged discovery
should have been sustained.5 violations are reviewed for abuse of discretion.
United States v. Katz, 178 F.3d 368, 369 (5th
Nevertheless, the error was made harmless Cir. 1999).
by subsequent questioning. Spencer Smith in-
dicated in response to one question that he The expert, ATF agent Daniel Hebert, tes-
was aware his wife had made the calls, and in tified that it was more likely that several plastic
response to another that he thought she was water jugs discovered near the motel had been
merely “trying to get some answers.”6 The
6
(...continued)
5
One prominent treatise explains the rule eous, for Smith’s solicitation of perjury is itself a
against asking questions that assume facts not in verbal act, not hearsay. See, e.g., United States v.
evidence: “A common vice is for the examiner to Villareal, 764 F.2d 1048, 1050 n.2 (5th Cir.
couch [a] question so that it assumes as true mat- 1985); Morgan v. State, 741 So. 2d 246, 257
ters to which the witness has not testified, and (Miss. 1999). Spencer Smith’s testimony was,
which are disputed between the parties . . . . therefore, competent evidence.
[W]hether the witness is friendly or hostile, the
7
answer can be misleading. If the witness answers At oral argument, Smith argued for the first
the question without separating out the assumption, time that this question also improperly introduced
it is impossible to determine whether the evidence of a prior bad act of the defendant, in vio-
assumption was ignored or affirmed.” MCCOR- lation of FED R. EVID. 404(b). Because Smith did
MICK ON EVIDENCE § 7 (5th ed. 1999). not object on this basis at trial, our review is only
for plain error. United States v. Duffaut, 314 F.3d
6
Smith mistakenly asserts that the improper 203, 209 (5th Cir. 2002); FED. R. EVID. 103(d).
questioning denied her the right to cross-examine a Insofar as the question focuses on Smith’s attempts
person with personal knowledge of the contents of further to cover up the crime, the district court
the phone call, and thus rises to the level of a would not have plainly erred in concluding that the
constitutional violation. This contention is erron- question sought evidence relating to the pending
(continued...) conspiracy charge and not to a prior bad act.
5
planted as evidence than used in the arson, IV.
because they were in too good a condition to Smith challenges the district court’s
have been sitting outside during the three conclusion that the motel is a “dwelling”
months before their discovery. The jugs also within the meaning of U.S.S.G. §
still smelled faintly of gasoline, which Hebert 2K1.4(a)(1)(B). She apparently concedes that
testified was unlikely to be the case if they had the motel would be a dwelling while occupied,
last contained gasoline at the time of the arson. but argues that it ceased to be a dwelling
during the three-month seasonal vacancy
during which the arson took place. An
This evidence was relevant to prove interpretation of the sentencing guidelines is a
Smith’s role in the conspiracy. In April 2001, question of law that we review de novo.
she contacted Hebert, claiming to have United States v. Sanders, 343 F.3d 511, 520
“discovered” the jugs in the grass behind the (5th Cir. 2003).
motel. She did not realize, at that time, that
the ATF had already tape recorded numerous In a matter of first impression in this circuit,
conversations in which she castigated Booty we agree with the government and several of
for leaving the gas cans used in the arson in our sister circuits that a hotel room counts as
Turnley’s truck. In those tapes, Smith blamed a “dwelling” within the meaning of §
herself for not telling Booty to throw the cans 2K1.4(a)(1)(B), regardless of whether it is
into the swamp. The government argued that occupied at the time of the crime.9 Black’s
she planted the water jugs at the scene, in- Law Dictionary defines a dwelling in
criminating herself in the conspiracy. connection with the crime of arson as, in
relevant part, “an enclosed space, permanent
Characterizing Hebert’s testimony as an ex- or temporary, in which human beings usually
pert opinion on gasoline dissipation rates, de- stay, lodge, or reside.”10 A motel room easily
fense counsel objected and asked that the fits this definition.
testimony be struck. Rather than grant that
request, the court interrupted the examination The only question, therefore, is whether the
of Hebert to permit a voir dire inquiry into the nature of the motel as a dwelling changed dur-
basis of the witness’s opinion. This eliminated ing its three-month seasonal vacancy. Smith,
the risk of surprise and allowed defense coun-
sel to obtain Hebert’s admission that he could
9
not say, with any specificity, when the gas cans See United States v. Ray, 245 F.3d 1256,
were placed at the scene. The district court’s 1257 (11th Cir. 2001); United States v. McClen-
remedy therefore was no abuse of discretion.8 ton, 53 F.3d 584, 587 (3d Cir. 1995); see also
United States v. Barker, 208 F.3d 215 (table),
2000 U.S. App. LEXIS 3666, at *5-*7 (6th Cir.
Mar. 7, 2000) (unpublished) (holding that it was
not plain error to conclude that an occupied motel
8
Two other issues raised by Smith are merit- is a dwelling for purposes of the sentencing guide-
less. Contrary to her claims, the government did lines).
not misstate the evidence in its closing argument.
10
In addition, insofar as we have found Smith’s other See BLACK’S LAW DICTIONARY 524 (7th ed.
allegations of error to be lacking, she was not 1999) (quoting 5 AM. JUR. 2D Arson and Related
prejudiced by an accumulation of harmless errors. Offenses § 13, at 789 (1995)).
6
relying on United States v. Jackson, 22 F.3d did not err in concluding that the motel was a
583 (5th Cir. 1994), argues that § 2K1.4(a)- dwelling within the meaning of § 2K1.4(a)-
(1)(B) should not apply here, because Booty (1)(B).
knew the motel was unoccupied and that the
arson posed correspondingly little risk of dan- V.
ger to an inhabitant. In Jackson, we refused to Smith contends her sentence violates the
apply a portion of the sentencing guidelines double jeopardy clause of the Fifth
that defines burglary of a dwelling as a “crime Amendment. This is a question of law, so we
of violence,” on the ground that the burglary review it de novo. United States v.
took place in a building that had been vacant Kimbrough, 69 F.3d 723, 728 (5th Cir. 1995).
for seven years. “Logically, whether by
vacancy, physical deterioration, altered use, or When a defendant challenges multiple pun-
otherwise, a point in time exists at which a ishments for the same conductSSrather than
dwelling loses its character as a residence and multiple prosecutionsSSour double jeopardy
becomes a ‘mere’ building.” Jackson, 22 F.3d analysis turns on whether Congress has
at 585. authorized the result at issue. If Congress has
enacted statutes that separately punish the
There is, however, a marked difference be- same conduct, there is no double jeopardy
tween the seven-year abandonment of the violation. Missouri v. Hunter, 459 U.S. 359,
building in Jackson and the three-month 368-69 (1983); United States v. Prestenbach,
seasonal vacancy of the motel. Whatever the 230 F.3d 780, 782 n.9 (5th Cir. 2000). Where
“point in time” at which a building’s core na- that inquiry proves inconclusive, we disregard
ture is altered, it was not reached in just three intent and determine “whether conviction
months, particularly in light of the fact that the under each statutory provision requires proof
motel would again be occupied by visitors in of an additional fact which the other does not.”
the near future. Moreover, unlike the United States v. Corona, 108 F.3d 565, 572
circumstance in Jackson, our interpretation of (5th Cir. 1997) (quoting United States v. Ngu-
“dwelling” in § 2K1.4(a)(1)(B) does not re- yen, 28 F.3d 477, 482 (5th Cir.1994)). Where
quire us to find that the arson posed a punishment is assessed under three or more
substantial risk of death or serious bodily statutory provisions, each offense must require
injury to another.11 Rather, the guideline may proof of a fact that is not part of the sum of
be applied either if there is a risk of serious the elements necessary to prove the other two
injury or if the arson involved the destruction offenses. Id.; see also Blockburger v. United
of a dwelling. Accordingly, the district court States, 284 U.S. 299 (1932).
Smith relies on Corona to challenge her
11 concurrent sentences for (1) arson under 18
In Jackson, the court observed that “the idea
that ‘whenever a private residence is broken into,
U.S.C. § 844(i); (2) conspiracy to commit
there is always a substantial risk that force will be arson and mail fraud under 18 U.S.C. § 371;
used’” is a critical element of the conclusion that and (3) use of fire to commit a felony under 18
the burglary of a home is a “crime of violence” U.S.C. § 844(h)(1). In Corona, 108 F.3d at
within the meaning of U.S.S.G. § 4B1.2(a)(2). 573, we held that the Double Jeopardy Clause
Jackson, 22 F.3d at 585 (quoting United States v. was violated by a sentence issued under the
Flores, 875 F.2d 1110, 1113 (5th Cir.1989)).
7
same three statutes where the predicate felony both arson and the use of fire to commit mail
in the use of fire count is a conspiracy to com- fraud.12 Each of these offenses contains a
mit arson. Citing Blockburger, we observed unique fact not required by the other offense:
that “[o]nce the jury has found the defendants Arson requires the attempted destruction of a
guilty of arson and conspiracy to commit ar- building, and the use of fire to commit a felony
son, it has found them guilty of using fire as violation of § 1341 requires the use of the
part of that conspiracy.” Id. mails to defraud another. Thus, the common
requirement that fire be used for the § 844-
The government’s first response, that Cor- (h)(1) use-of-fire count and the § 844(i) arson
ona was “limited . . . to its particular facts” by count does not constitute double jeopardy.
a subsequent panel, is totally meritless. Just as
no subsequent panel of this court is free, ab- From this, it also follows that the double
sent intervening Supreme Court decisions, to jeopardy clause is not violated by Smith’s sen-
overrule the decisions of another panel, no tence, because each statute requires proof of
panel is empowered to hold that a prior an element not found in the others. Arson, un-
decision applies only on the limited facts set der § 844(i), requires the use of fire to destroy
forth in that opinion. Moreover, the case cited a building. Conspiracy to commit arson under
by the government, United States v. Nguyen, § 371 requires an agreement to use fire to de-
117 F.3d 796, 797 n.1 (5th Cir. 1997) (per stroy a building. And, finally, the use of fire to
curiam), does not purport to do anything more commit mail fraud under §§ 844(h)(1) and
than distinguish Corona in a case arising out of 1341 requires the use of fire to defraud
different statutes. We are unable to do the someone through the mails. Because the §
same, because Corona and the present dispute 1341 mail fraud charge can be satisfied with or
arise under 18 U.S.C. §§ 371, 844(h)(1), and without the use of fire, and it requires proof of
844(i). facts not required by the other statutes, it does
not violate double jeopardy to punish for ar-
Nevertheless, even under the Blockburger son, conspiring to commit arson, and using fire
analysis employed in Corona, there is no to commit mail fraud.
double jeopardy violation here. The critical
difference between this case and Corona is The only remaining consideration is wheth-
that the superseding indictment charged this er our conclusion is affected by the fact that
defendant with the use of fire to commit mail count 4 of the indictment alleges the use of fire
fraud under 18 U.S.C. § 1341 and use of fire to commit mail fraud and conspiracy because,
in furtherance of the conspiracy to commit under Corona, arguably it would violate
arson and mail fraud under § 371. This cures double jeopardy to punish the defendant for
the double jeopardy problem found in Corona, the use of fire in connection with the con-
because it requires the government to prove an
additional fact, in the use-of-fire count, that is
not an essential element of either the arson or
the conspiracy.
We agree with our sister circuits that it 12
See United States v. Zendeli, 180 F.3d 879,
does not violate double jeopardy to convict of 886 (7th Cir. 1999); United States v. Fiore, 821
F.2d 127, 130-31 (2d Cir. 1987).
8
spiracy.13 The government’s decisions on how
to charge do not taint do not taint the overall
analysis here, however, because the jury found
that Smith committed both underlying felonies,
and the burning of the motel was central to the
government’s arguments for each. Count 1
lists the burning of the motel as one of the
overt acts of the conspiracy, and count 3 lists
the arson as part of the scheme to create a
false insurance claim. As a result, the use-of-
fire count is adequately supported by the
felony of mail fraud, even if not by the
conspiracy.14
AFFIRMED.
13
We say “arguably” only because the govern-
ment made the issue even more complicated by
charging that fire was used to commit a “conspir-
acy to commit mail fraud and arson,” and Corona
does not prohibit a conviction on the use of fire to
commit a mail fraud conspiracy.
14
We note, however, that the government took
an unnecessary risk in combining the conspiracies
into a single count, because there was the possi-
bility that even a technical acquittal on the mail
fraud count would leave it unable to proceed on the
use-of-fire count, and we would be unable to
determine whether the jury found fire was used in
a conspiracy to commit mail fraud or, instead, in a
conspiracy to commit arson.
9