United States v. Nam Tan Nguyen

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-7224
Summary Calendar
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,
Cross-Appellant,

versus

NAM TAN NGUYEN,

Defendant-Appellant,
Cross-Appellee.

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Appeals from the United States District Court for the
Southern District of Mississippi
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(August 2, 1994)

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Nam Tan Nguyen (Nguyen) was convicted of

one count of using fire to commit a felony, in violation of 18

U.S.C. § 844(h)(1), and of one count of attempting to destroy a

building by fire, in violation of 18 U.S.C. § 844(i). On appeal,

Nguyen argues that the evidence is insufficient to support his

convictions. Nguyen also contends that the district court

committed reversible error in (1) failing to dismiss an allegedly

multiplicitous third count of which he was ultimately acquitted,
(2) denying his motion for a mistrial, and (3) giving an Allen

charge after the jury had revealed its numerical division. The

government cross-appeals, asserting that the district court erred

by refusing to sentence Nguyen for one of the counts on which he

was convicted. We affirm in part and vacate and remand in part.

Facts and Proceedings Below

In 1988, Nguyen opened a store in Biloxi, Mississippi, which

provided for rental video tapes dubbed into the Vietnamese

language. On January 19, 1990, Nguyen's store was destroyed by

arson. On July 7, 1992, a grand jury handed down a three-count

indictment charging Nguyen with (1) knowingly and unlawfully using

fire to commit a felony, to wit: mail fraud, which may be

prosecuted in a court of the United States, in violation of 18

U.S.C. § 844(h)(1) (Count One); (2) maliciously damaging and

destroying and attempting to destroy a building used in interstate

commerce, in violation of 18 U.S.C. § 844(i) (Count Two); and (3)

for the purpose of attempting to execute a scheme and artifice to

defraud, and by means of fraud to obtain money through the use of

the United States Postal Service, knowingly caused to be deposited

in the mail a proof of loss form, in violation of 18 U.S.C. § 1341

(Count Three).

On March 23, 1993, Nguyen filed a motion in the trial court

asserting that Counts One and Three were multiplicitous and

requesting that the court dismiss Count One or, in the alternative,

require the government to elect between Count One and Count Three.

The court denied the motion on the first day of trial, March 29,

1993. On April 1, 1993, a jury found Nguyen guilty on Counts One

2
and Two, but acquitted him on Count Three. The district court

sentenced Nguyen to a term of imprisonment of sixty months on Count

One, followed by a three-year term of supervised release. The

court, however, declined to impose a sentence for Nguyen's

conviction on Count Two.

Nguyen now appeals his convictions; the government cross-

appeals the district court's refusal to impose sentence on Count

Two.

Discussion

I. Sufficiency of the Evidence

In reviewing challenges to sufficiency of the evidence, this

Court views the evidence in the light most favorable to the verdict

and affirms if a rational trier of fact could have found that the

government proved all essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 99 S.Ct. 2781, 2786

(1979); see also United States v. Ruiz, 987 F.2d 243, 249 (5th

Cir.), cert. denied, 114 S.Ct. 163 (1993). All credibility

determinations and reasonable inferences are to be resolved in

favor of the jury's verdict. Ruiz, 987 F.2d at 249. Where two or

more counts are tried at the same time and the offense charged in

one count is the predicate act charged in a second count, acquittal

on the predicate count does not preclude a conviction on the second

count if a rational jury could have found the defendant guilty of

the predicate act. See United States v. Munoz-Fabela, 896 F.2d

908, 911 (5th Cir.), cert. denied, 111 S.Ct. 76 (1990) (concluding

that "it is only the fact of the offense, and not a conviction,

that is needed to establish the required predicate"). Indeed, a

3
not guilty verdict on one count does not establish any facts

favorable to the defense for the purpose of determining the

sufficiency of the evidence on the counts of conviction (except if

convictionSQas opposed to commissionSQof an acquitted count is an

element of a count of conviction). See United States v. Powell,

105 S.Ct. 471 (1984); United States v. Thomas, 12 F.3d 1350, 1362-

63 (5th Cir. 1994); United States v. Ruiz, 986 F.2d 905, 911 (5th

Cir. 1993).

Nguyen was convicted of violating 18 U.S.C. § 844(i) and 18

U.S.C. § 844(h)(1). We review the evidence supporting each

conviction separately.

A. Section 844(i)

To convict a defendant of violating 18 U.S.C. § 844(i), the

government must prove that he: (1) maliciously damaged or

destroyed a building or personal property, (2) by means of fire,

and (3) the building or personal property was being used in

activity affecting interstate commerce. See United States v.

Triplett, 922 F.2d 1174, 1177 (5th Cir.), cert denied, 111 S.Ct.

2245 (1991).

At trial, the government presented evidence that established

that the business operated by Nguyen in the building in question

was involved in interstate commerce, purchasing and renting

videotapes from California. Sufficiency of the evidence as to the

interstate commerce element of section 844(i) is not challenged.

An ATF financial auditor testified that his review of Nguyen's

financial records indicated that in December 1989, one month before

the fire, the business was in "total financial collapse." Linh Vu,

4
Nguyen's insurance agent, testified that on the day before the

fire, January 18, 1990, Nguyen went to the insurance agency to make

an outstanding premium payment and questioned Vu about the extent

of the fire insurance coverage on Nguyen's store.

The government also presented testimony from Charry Kent, an

employee of a poolhall located next to Nguyen's, that between 4:00

and 6:00 p.m. on January 18, 1990, Nguyen removed VCRs and boxes

containing new clothing from his store. She further testified that

she saw Nguyen put the merchandise in his car and drive away; he

later returned, loaded more boxes into his car, and drove away.

Kent saw Nguyen reload his car and remove boxes a total of three or

four times, after which she saw him enter the store and remain

there. Kent also testified that at approximately 7:00 p.m., she

entered Nguyen's store and "it looked bare." The owner of the

poolhall, Muoi Lai, also testified that when she entered Nguyen's

business on the evening of January 18, 1990, the store "seemed

empty."

On January 19, 1990, Nguyen's store was destroyed by fire.

Although Nguyen's store was equipped with a fire alarm, no alarm

sounded on the night of the fire. The government presented

testimony from Riley Sanders, a former employee of ATS security

systems who installed the alarm system in Nguyen's store, that

Nguyen was the only person given the code to arm or deactivate the

system.1 Sanders also testified that had the alarm been turned on,

it would have detected the fire and notified the Biloxi Fire

1
Nguyen confirmed that he was the only person who knew the
alarm code.

5
Department.

Nguyen stipulated that the fire was the result of arson.

Rodger Shanks (Shanks), an arson investigator for the ATF,

testified that the fire appeared to be an arson for profit. Shanks

also testified that there had been no forced entry into the store,

and that the doors of the store were closed and locked at the time

the fire began.

Based on the evidence outlined above, a rational jury could

determine beyond a reasonable doubt that Nguyen intentionally

started the fire that burned his store, and that the store's

operation affected interstate commerce. Our review of the record,

therefore, indicates that sufficient evidence exists to affirm

Nguyen's conviction for arson, in violation of 18 U.S.C. §

844(h)(1).

B. Section 844(h)(1)

To secure a conviction under section 844(h)(1), the government

must prove that the defendant (1) used fire (2) to commit a "felony

which may be prosecuted in a court of the United States." 18

U.S.C. § 844(h)(1). In order to find the evidence sufficient for

a conviction under section 844(h)(1), we must be satisfied with the

evidence of the underlying felony, in this case mail fraud under 18

U.S.C. § 1341. To establish the essential elements of section 1341

mail fraud, the government must show that the defendant (1) used a

scheme to defraud, (2) which involved a use of the mails, (3) and

that the mails were used for the purpose of executing the scheme.

United States v. Pazos, 1994 WL 260997, *5 (5th Cir. 1994) (citing

United States v. Kent, 608 F.2d 542, 545 (5th Cir. 1979), cert.

6
denied, 100 S.Ct. 2153 (1980)). Since we have already concluded

that the government presented ample evidence of Nguyen's arson, the

only question is whether the evidence is sufficient to establish

that Nguyen committed mail fraud under section 1341.

The facts relevant to whether Nguyen committed mail fraud are

as follows. First, as noted above, on January 18, 1994, Nguyen

questioned his insurance agent about the extent of his fire

insurance coverage. After the fire, Nguyen's insurance carrier,

CIGNA, mailed him a sworn proof of loss form. Nguyen mailed the

form back to CIGNA, claiming an inventory loss of $93,377.

Thereafter, CIGNA investigated Nguyen's claim and determined the

inventory loss to be approximately $33,400.

From these facts, a reasonable jury could have concluded

rationally that Nguyen used the mails to execute a scheme to

defraud CIGNA by burning his store to collect the proceeds of his

fire insurance and using the mail to file a proof of loss statement

that was inflated by almost $60,000. And, although the jury in

this case acquitted Nguyen on the count charging a violation of

section 1341, the evidence was sufficient to support a conviction

for mail fraud. See Ruiz, 986 F.2d at 911. Because Nguyen used

fire to commit the mail fraud, we conclude that the evidence was

sufficient to support Nguyen's conviction for the use of fire to

commit a federal felony under 18 U.S.C. § 844(h)(1).

II. Multiplicity

Next, Nguyen argues that the district court erred in denying

his pre-trial motion to require the government to elect between

Count One and Count Three. Nguyen contends that indictment was

7
multiplicitous because the "allegations of the indictment related

to the charged behavior in Counts Two and Three include all of the

acts and conduct alleged in Count One."

"Multiplicity" is charging a single offense in more than one

count in an indictment. "The chief danger raised by a

multiplicitous indictment is the possibility that the defendant

will receive more than one sentence for a single offense." United

States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.), cert. denied, 106

S.Ct. 81 (1985). The test for determining whether the same act or

transaction constitutes two offenses or only one is whether

conviction under each statutory provision requires proof of an

additional fact which the other does not. United States v. Free,

574 F.2d 1221, 1224 (5th Cir.), cert. denied, 99 S.Ct. 209 (1978).

Moreover, "'[w]hether a continuous transaction results in the

commission of but a single offense or separate offenses . . . is

determined by whether separate and distinct prohibited acts, made

punishable by law, have been committed.'" United States v. Shaid,

730 F.2d 225, 231 (5th Cir.), cert. denied, 105 S.Ct. 151 (1984)

(quoting Bins v. United States, 331 F.2d 390, 393 (5th Cir.), cert.

denied, 85 S.Ct. 149 (1964)). "An offense is separate and distinct

when conviction under one count requires proof of an additional

fact that the other count does not require." United States v.

Guzman, 781 F.2d 428, 432 (5th Cir.) (per curiam), cert. denied,

106 S.Ct. 1798 (1986) (citations omitted). We review issues of

multiplicity de novo. See, e.g., United States v. Brechtel, 997

F.2d 1108, 1112 (5th Cir.) (per curiam), cert. denied, 114 S.Ct.

605 (1993).

8
 Nguyen's multiplicity argument appears to be that the elements

of the offenses charged in Counts Two and Three are the essential

elements of the offense charged in Count One. However, even

assuming arguendo that the district court erred in denying Nguyen's

motion to elect between Counts One and Three, because Nguyen was

acquitted on Count Three, no harm resulted. The danger of a

multiplicitous indictmentSQi.e., that the defendant will receive

more than one sentence for a single offenseSQwas eliminated by the

jury in this case. Swaim, 757 F.2d at 1537. Moreover, the counts

under which Nguyen was convicted were separate and distinct because

"conviction under one count requires proof of an additional fact

that the other count does not require." See Guzman, 781 F.2d at

432. Section 844(h)(1) requires proof of the commission of any

felony (in this case mail fraud) "which may be prosecuted in a

court of the United States," something not required by Section

844(i). Section 844(i) requires proof that the damaged building

was involved in interstate commerce, something not required by

Section 844(h)(1). See United States v. Fiore, 821 F.2d 127, 130-

31 (2d Cir. 1987). Hence, we conclude that the district court did

not commit reversible error in denying Nguyen's claim of

multiplicity.

III. Denial of the Motion for Mistrial

Nguyen contends that the district court erred in denying his

motion for a mistrial after one of the government's witnesses made

an allegedly prejudicial statement. During direct examination, ATF

Agent Shanks testified about a threatening letter which had been

provided to him by the Biloxi Police Department. The letter had

9
been delivered to the Biloxi Police Department by Nguyen, who

claimed to have received it in April 1989. Shanks was given a copy

of the letter on January 12, 1990. During cross-examination,

Nguyen's counsel questioned Shanks about why he was shown the

letter before the fire:

"Q [Nguyen's counsel]: So you had started this
investigation before there was a fire?

A [Shanks]: No. This was in regards to another
investigation.

Q: What was that investigation?

A: It was another man who had a fire, and it was
believed that possibly Nam NguyenSQNam Nguyen was a
suspect at that time in that fire.

After Shanks' response indicating that Nguyen had been a suspect in

another arson investigation, Nguyen's counsel moved for a mistrial.

The trial court addressed the issue outside of the presence of the

jury and denied the motion. The court concluded that Shanks'

answer was simply a "candid response to a direct question [Nguyen's

counsel] asked him." The court then brought the jury back into the

courtroom and instructed them as follows:

"Ladies and gentlemen of the jury, your responsibilities
in this case will be to determine whether the government
proves to you by credible evidence beyond a reasonable
doubt that the defendant did that with which he is
charged as having done in the indictment of this case.
We're not trying any other incident at any other time.
And, consequently, the last response that the defendant
in this case, Mr. Nam Nguyen, was a suspect in another
arson case will be disregarded by you.

"But in fairness, let me say that in your absence, I went
inSQwent over with this witness the situation regarding
the other case, and it involved a fire with a competitor
of this defendant that occurred more than some [sic] year
before this one did. And even though they were
investigating every lead, there was no credible
evidenceSQthe Court cannot find really any basis for even

10
 thinking seriously that the defendant in this case was
involved in the other case. It was just simply a matter
of pursuing every lead. I say that in theSQon the
possibility that even though I've told you to disregard
that statementSQit's not really relevant. You shouldn't
consider it. In case you might have thought that
indicated something, I'm telling you it should not
because there was really no basis for feeling that he was
guilty of another arson."

Without waiving his objection to the denial of his motion for

mistrial, Nguyen stated that he had no objection to the court's

instruction.

A prejudicial remark may be rendered harmless by curative

instructions to the jury. United States v. Lichenstein, 610 F.2d

1272 (5th Cir.), cert. denied, 100 S.Ct. 2991 (1980). We also give

considerable weight to the trial judge's assessment of the

prejudicial effect of the remark. United States v. Blevins, 555

F.2d 1236 (5th Cir.), cert. denied, 98 S.Ct. 733 (1978). In the

instant case, assuming that Shanks' statement was prejudicial, the

district court "issued a prompt and strong curative instruction to

the jury." United States v. Nickerson, 669 F.2d 1016, 1020 (5th

Cir. Unit B 1982). The court believed that this instruction cured

the error. In our review of the record, we are unable to conclude

that the court was incorrect. We also note, as did the district

court, that the defense essentially brought the matter on itself.

We hold that the district court did not err by denying Nguyen's

motion for mistrial.

IV. Allen Charge

Nguyen's final argument on appeal is that the district court

erred in giving an Allen charge after the jurors had revealed their

numerical division. See Allen v. United States, 164 U.S. 492

11
(1896). On the final day of trial, after the jury deliberated for

approximately four hours, the court advised the parties that it had

received a note from the jury stating that they were hung. The

court also informed the parties that the note revealed the

numerical division of the jury.2 The court sealed the jurors' note

and inquired whether either party objected to the giving of a

modified Allen charge; neither party objected.3 The court then

recalled the jury and gave the Fifth Circuit Pattern Allen charge.4

2
During its main charge to the jury, the court had instructed
"Bear in mind that you are never to reveal to any person, not
even to the Court, how the jury stands numerically or otherwise
on any count of the indictment until after you have reached a
unanimous verdict."
3
Defense counsel responded to the court's inquiry by stating:
"No objections from the defense, Your Honor, and no additional
instructions requested."
4
The court charged the jury as follows:

"Members of the jury, I received your note. I'm
going to ask that you continue your deliberations in an
effort to agree upon a verdict and dispose of this
case. And I have a few additional comments I would
like for you to consider as you do so. This is an
important case. The trial has been expensive in time,
effort and money to both the defense and the
prosecution. If you should fail to agree on a verdict,
the case is left open and it must be tried again.
Obviously, another trial would only serve to increase
the cost to both sides. There is no reason to believe
that the case can be tried again by either side better
or more exhaustively than it was tried before you. Any
future jury must be selected in the same manner and
from the same source as you were chosen. There is no
reason to believe that the case could ever be submitted
to 12 men and women more conscientious, more impartial
or more competent to decide it or that more or clearer
evidence could be produced.

"If a substantial majority of your number are for
a conviction, each dissenting juror ought to consider
whether a doubt in his own mind is a reasonable one
since it appears to make no effective impression upon

12
Within an hour after the court gave the modified Allen charge, the

jury returned their verdict.

Because Nguyen failed to object toSQindeed affirmatively

acquiesced inSQthe court's giving of the modified Allen charge, we

review his belated complaint for plain error only.

The charge given by the district court is essentially the same

as the charge this Court has repeatedly upheld, approving both its

language and its use. United States v. Gordon, 780 F.2d 1165, 1177

(5th Cir. 1986) (multiple citations omitted). We have also stated

the minds of the others. On the other hand, if a
majority or even a lesser number of you are for
acquittal, the other jurors ought seriously to ask
themselves again most thoughtfully whether they do not
have a reason to doubt the correctness of the judgment
which is not shared by several of their fellow jurors
and whether they should distrust the weight and
sufficiency of evidence which fails to convince several
of their fellow jurors beyond a reasonable doubt.

"Remember at all times that no juror is expected
to yield a conscientious conviction he or she may have
as to the weight or effect of the evidence. But
remember also, after full deliberation and
consideration of the evidence in the case, it is your
duty to agree upon a verdict if you can do so without
surrendering your conscientious convictions. You must
also remember that if the evidence in the case fails to
establish guilt beyond a reasonable doubt, the accused
should have a unanimous verdict of not guilty.

"You may be as leisurely in your deliberations as
the occasion may require and should take all the time
that you may feel is necessary. I will ask now that
you retire once again to continue your deliberations
with these additional comments in mind to be applied,
of course, in conjunction with all instructions I have
previously given to you. I remind you again that you
have to read all the instructions that I have
previously given you and this instruction all together.
You're not to single out any one. And I would also
remind you that I specifically directed that you
wouldn't reveal your divisionSQnumerical division if
there is one at any time, not even to the Court."

13
that the trial court "is vested with broad discretion to evaluate

whether an Allen charge is likely to coerce a jury into returning

a verdict it would not otherwise return." Id. (citing United

States v. Nichols, 750 F.2d 1260, 1266 (5th Cir. 1985)). Moreover,

"[t]he fact that the jury contrary to the instructions of the court

volunteered to the court the extent of their division and which way

they stood is no reason why the court should be precluded from

giving an otherwise proper Allen charge." Sanders v. United

States, 415 F.2d 621, 631-32 (5th Cir. 1969), cert denied, 90 S.Ct.

1096 (1970) (citation omitted).

Here, the court concluded that the charge was appropriate, and

neither party objected to the court's conclusion. In the context

of this case, we discern no evidence of a coercive atmosphere

sufficient to justify reversal. The trial court's instructions,

taken as a whole, did not place undue pressure on the jurors. The

district court reminded the jurors that the modified Allen charge

formed only a small part of the total body of instructions, the

rest of which Nguyen does not challenge. And, although the court

stressed the importance of reaching a verdict in its final charge,

it tempered the remarks with reminders that each juror should

remain true to his own conscience. Hence, we find no plain error

in the court's giving of the modified Allen charge.

V. Refusal to Sentence

In its cross-appeal, the government argues that the district

court erred in failing to impose a sentence on Nguyen for his

conviction on Count Two. As noted by Nguyen's presentence

investigation report, Nguyen's offense level and criminal history

14
category dictate a Sentencing Guideline range of thirty-three to

forty-one months for his conviction on Count Two, with a statutory

maximum sentence of ten years. 18 U.S.C. § 844(i). Conviction on

Count One carries with it a statutory minimum sentence of five

years consecutive to "any other term of imprisonment." 18 U.S.C.

§ 844(h)(1). The court refused to sentence Nguyen for Count Two

because the court concluded that neither Congress nor the

Sentencing Commission intended that a defendant be consecutively

sentenced where conviction for two separate counts was based on the

same illegal conduct. Our review of this matter is de novo.

United States v. Thomas, 963 F.2d 63, 64 (5th Cir. 1992).

Congress is free to prescribe multiple punishments for the

same conduct. Albernaz v. United States, 101 S.Ct. 1137, 1145

(1981). To determine whether Congress intended that two statutory

offenses be punished cumulatively, we apply the test set forth in

Blockburger v. United States, 52 S.Ct. 180, 182 (1932): The

applicable rule is that where the same act or transaction

constitutes a violation of two distinct statutory provisions, the

test to be applied to determine whether there are two offenses or

only one is whether each provision requires proof of a fact which

the other does not. See Albernaz, 101 S.Ct. at 1141; Whalen v.

United States, 100 S.Ct. 1432, 1437 (1980). "'If each [offense]

requires proof of a fact that the other does not, the Blockburger

test is satisfied, notwithstanding a substantial overlap in the

proof offered to establish the crimes.'" Brown v. Ohio, 97 S.Ct.

2221, 2226 (1977) (quoting Iannelli v. United States, 95 S.Ct.

1284, 1293 n. 17 (1975)).

15
 The two statutes under which Nguyen was sentenced satisfy the

Blockburger test. As noted in part II, supra, section 844(h)

requires proof of the commission of a separate "felony which may be

prosecuted in a court of the United States" (in this case, mail

fraud), an element not required by section 844(i). Section 844(i)

requires proof of damaging or attempting to damage "property used

in interstate or foreign commerce or in any activity affecting

interstate or foreign commerce," an element not required by section

844(h). Finally, nothing in the legislative history of section 844

discloses an intent contrary to the Blockburger presumption. See

Albernaz, 101 S.Ct. at 1143; United States v. Karlic, 997 F.2d 564,

571 (9th Cir. 1993); United States v. Fiore, 821 F.2d 127, 131-32

(2nd Cir. 1987). Thus, Nguyen's consecutive sentences under these

sections did not constitute double jeopardy.

Our conclusion is in accord with the Second Circuit's decision

in Fiore, in which the defendant burned down his business in an

attempt to commit mail fraud against his insurance company.

Applying the Blockburger test, the appeals court held that the

indictment charging violations of sections 844(h) and (i) was not

multiplicitous because Congress intended to authorize multiple

punishments. Fiore, 821 F.2d at 130-31. Hence, the district court

erred in refusing to sentence Nguyen for his conviction on Count

Two. We therefore remand to the district court for resentencing in

accordance with this opinion.

Nguyen argues, however, that United States v. Chaney, 559 F.2d

1094, 1096 (7th Cir. 1977), suggests a different result. In that

case, the court held that an indictment charging violations of

16
sections 844(h) and (i) was multiplicitous under the Blockburger

test. We find Chaney factually inapposite. The defendant in

Chaney was also charged with violations of sections 844(h) and (i);

however, the predicate "felony" for the section 844(h) offense was

the section 844(i) offense itself. As the court noted, "the

charges in both counts are identical." Id. (emphasis added). In

Chaney, "the evidence necessary to prove the offense charged under

Count I [18 U.S.C. § 844(i)] would prove the offense charged under

Count III [18 U.S.C. § 844(h)(1)], and vice versa." Id. In the

instant case, by contrast, Nguyen was charged with a felony

violation of 18 U.S.C. § 1341, mail fraud. Proof of the commission

of that felony was required for the section 844(h) offense but not

for the section 844(i) offense. The Blockburger test is therefore

satisfied.

Conclusion

For the reasons stated above, we reject Nguyen's arguments on

appeal and AFFIRM his conviction. With regard to Nguyen's

sentence, we conclude that the district court erred in refusing to

sentence Nguyen for violation of 18 U.S.C. § 844(i); accordingly,

we VACATE his sentence and REMAND for resentencing consistent

herewith.

17