IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2009
No. 07-40615 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
CURTIS RAY SEVERNS,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Curtis Ray Severns was convicted and sentenced for mail fraud, wire
fraud, arson, use of fire to commit mail fraud, and use of fire to commit wire
fraud arising out of a conflagration that destroyed his business and his
subsequent attempt to collect insurance proceeds. Severns contends on appeal
that (1) he is entitled to a new trial because the Government failed to disclose
exculpatory evidence and because he has discovered new evidence; (2) there is
insufficient evidence to support the jury’s finding that a firefighter suffered
injury while responding to the fire; (3) the Double Jeopardy Clause of the Fifth
Amendment has been violated because of consecutive sentences for the same
conduct; and (4) there was a single fire, and 18 U.S.C. § 844(h) does not permit
No. 07-40615
convictions for both using fire to commit mail fraud and using fire to commit
wire fraud. Severns prevails on only the latter issue. We agree that only one
conviction and sentence enhancement for use of fire to commit a felony can be
sustained when a single fire was the basis for the enhancement. We vacate and
remand to the district court for resentencing after the Government has elected
the convictions on which to base sentences.
I
Shortly after 10:30 one evening, a fire erupted at a gun store owned by
Lone Star Guns, Inc. Severns was the president and sole shareholder of Lone
Star Guns.
Authorities were alerted when the movement of heat from the fire
triggered a motion detector that was part of the Lone Star Gun’s burglar-alarm
system. Severns told police that he was the last person to leave the building
that night. He maintains that he left at 10:30 p.m. after activating the alarm
system and locking the premises. However, credit-card receipts indicate that
Severns was at a gas station three miles from the store, approximately a five-
minute drive, at 10:58 p.m. The alarm signal from the gun store was
transmitted at 10:53 p.m.
At the time of the fire, Severns had debts related to Lone Star Guns
totaling $183,668. Severns had obtained insurance for the corporation with
coverage limits of $250,000 for loss of business personal property, $60,000 for the
loss of personal property of others, and $40,000 for business interruption.
Severns filed a claim after the fire, and the insuring company determined there
had been a total loss resulting in damage equal to or in excess of the coverage
limits.
Fire investigators with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) and the Plano Fire Department determined that the fire was
2
No. 07-40615
intentionally set, and Severns was charged with seventeen counts: Counts 1–5
(mail fraud in violation of 18 U.S.C. § 1341); Counts 6–14 (wire fraud in violation
of 18 U.S.C. § 1343); Count 15 (arson resulting in personal injury in violation of
18 U.S.C. § 844(i) based on a firefighter’s injury); Count 16 (use of fire to commit
mail fraud in violation of 18 U.S.C. § 844(h)); and Count 17 (use of fire to commit
wire fraud in violation of 18 U.S.C. § 844(h)).
At trial, one of the principal issues was whether the fire was intentionally
set. The prosecution called a number of expert witnesses who testified that the
fire must have been arson because it had three points of origin—a workbench on
the east side of the store, an island workbench at the center of the store, and a
U-shaped area formed by shelves to the north of the central island. The defense
contended that the fire started accidentally from an electrical malfunction near
the east workbench and that either exploding aerosol cans or burning “fall-down”
material from the ceiling spread flames to the other two locations. Both sides
called expert witnesses who provided conflicting testimony as to the ability of
aerosol cans to communicate a fire to separate areas of an enclosed room and the
possibility that aerosol cans found in the debris after the fire at Lone Star Gun
could have been the cause of two of the points of origin.
At the end of the trial, the jury convicted Severns on all counts. The
district court granted a post-verdict judgment of acquittal on Count 13, one of
the charges of wire fraud.
Approximately two weeks after Severns’s trial ended, a copy of an ATF
training video depicting aerosol cans exploding during a house fire and igniting
a blaze in another area was posted to a professional-fire-investigation forum on
the Internet. In the video, the ATF started a fire in the kitchen of a home by
placing a box on a stove. The cabinets above the stove were filled with aerosol
cans and other combustible items. After the fire had burned for several minutes,
the video shows an explosion that projects fire to other areas of the room. Two
3
No. 07-40615
of those satellite fires continued to burn after the initial explosion. Minutes
after those ignitions, another explosion occurred that sent an aerosol can flying
away from the fire and bouncing around the room. Kelton Thornton, an ATF
Supervisor who worked on the prosecution team in Severns’s case, was present
at the filming of the video.
Severns’s attorney discovered the ATF training video and filed a motion
for a new trial. He argued that the video should have been disclosed to him by
the prosecution because it was material to the outcome of Severns’s case. He
also argued that since trial, he had discovered the manual for Lone Star Gun’s
alarm system and that it supported Severns’s contention that he could not have
set the alarm after starting the fire because the motion detector would have
detected the heat and would not have allowed the system to arm. The district
court denied Severns’s motion.
The court subsequently sentenced Severns to 324 months of imprisonment,
consisting of concurrent terms of 57 months on Counts 1-12 and 14 (mail and
wire fraud), a concurrent term of 84 months on Count 15 (arson resulting in
personal injury), a consecutive term of 120 months on Count 16 (use of fire to
commit mail fraud) and consecutive to that, a term of 120 months on Count 17
(use of fire to commit wire fraud). Severns was also ordered to pay $1,600 in
assessments ($100 for each of his sixteen convictions), and $462,602.47 in
restitution. Severns has pursued this appeal.
II
The first issue we address is whether the prosecution violated Brady v.
Maryland1 by failing to disclose the ATF video and whether the district court
erred in denying Severns’s motion for a new trial. This court reviews the denial
1
373 U.S. 83 (1963).
4
No. 07-40615
of a motion for a new trial for abuse of discretion.2 However, where the motion
for a new trial is based on an alleged Brady violation, the Brady determination
is “inevitably a contextual inquiry, involving questions of both law and fact.”3
While we examine the Brady question de novo, “we must proceed with deference
to the factual findings underlying the district court’s decision.”4
When a motion for a new trial based on newly discovered evidence raises
a claim under Brady, the defendant must demonstrate that (1) the prosecution
suppressed evidence; (2) the evidence was favorable to him; and (3) the evidence
was material either to guilt or punishment.5 The Government has a “duty to
learn of any favorable evidence known to the others acting on the government’s
behalf in the case, including the police.”6 Evidence is material if there is “a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”7 “A ‘reasonable probability’
is a probability sufficient to undermine confidence in the outcome.”8
2
United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004).
3
United States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004).
4
Id.
5
United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002) (citing Brady, 373 U.S. at
87).
6
Titsworth v. Dretke, 401 F.3d 301, 306 (5th Cir. 2005) (quoting Kyles v. Whitley, 514
U.S. 419, 437 (1995)).
7
Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985) (opinion of BLACKMUN, J.) and citing Bagley, 473 U.S. at 685 (WHITE, J.,
concurring in part and concurring in judgment)).
8
Ritchie, 480 U.S. at 57 (quoting Bagley, 473 U.S. at 682 (opinion of BLACKMUN, J.) and
citing Bagley, 473 U.S. at 685 (WHITE, J., concurring in part and concurring in judgment)).
5
No. 07-40615
A
Severns argues that the prosecutor’s failure to disclose the existence of the
ATF training video depicting the exploding aerosol cans violated the duty
explicated in Brady. The Government contends that its duty to disclose does not
extend to evidence not known by the prosecution team at the time of trial and
that no one on the prosecution team was aware of the existence of the ATF video.
However, Kelton Thornton, an ATF Supervisor present at the creation of the
ATF video, was part of the team that prosecuted Severns. By his own admission,
Thornton “supervised the fire investigation scene as well as the arson
investigation that was conducted following the [Lone Star Guns] fire,” and he
“was present when the test fire shown in [the ATF] video was conducted.” The
Government’s argument in this regard is not well-taken.
B
The Government asserts that the failure to disclose the ATF video should
not result in a new trial because there was no “reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different.”9 We agree.
At trial, one of the Goverenment’s experts, Steven Steele, testified that he
was able to rule out the aerosol cans as the method for fire communication based
on the location of the cans and his interpretation of the burn patterns. He
testified that the blazes in each of the three ignition areas had burned for
“approximately the same amount of time,” whereas the aerosol cans must have
exploded late in the fire, because they were found on top of the debris pile.
According to Steele, this discrepancy in timing eliminated the possibility that the
cans could have caused the other two fires. None of the defense’s experts
disputed this testimony, nor did they present alternate theories explaining the
9
Bagley, 473 U.S. at 682.
6
No. 07-40615
timing discrepancy. The video provides no evidence refuting Steele’s testimony
on this point.
Another Government witness, John DeHaan, testified that most of the
aerosol cans were found under the east workbench next to a large barrel of
bluing salts and that a can exploding “under [the east workbench] would not be
expected to move any distance at all” because “that drum is sitting right there
and blocking its travel.” Again, the defense neither disputed this testimony at
trial nor provided any alternate theories as to how aerosol cans could have
avoided such obstacles, and the video does not explain how a can could have
done so either.
The Government asserts that had the ATF video been shown at trial,
Steele would have been able to explain why the aerosol cans could not have
accounted for the three origins in the Lone Star Guns fire. In an affidavit after
trial, Steele stated that the aerosol cans in the Lone Star Guns fire were “at or
near floor level and there were numerous obstructions between the area where
these cans exploded and the other two areas of origin.” According to Steele, one
of the areas of fire origin (the U-shaped area) “was in a corner behind an
approximately 6 foot tall desk/bookshelf” and “was not in direct line of sight”
from the origin containing the aerosol cans. The third fire origin was in a “four
side[d] bin that had a work bench and ceiling[-]high shelf between it and the
exploding aerosol cans.”
At trial, one of Severns’s experts, Michael Smith, testified that the fire in
the U-shaped area could have started if an exploding can hit the ceiling and the
flame plumed out from there to reach the area. Another defense witness, Gerald
Hurst, testified that burning fall-down material from the ceiling was likely the
cause of the fire in the U-shaped area. However, this testimony fails to account
for Steele’s testimony regarding the timing of the fire and DeHaan’s testimony
and photographic evidence regarding the barrel blocking the cans.
7
No. 07-40615
Severns has been unable to provide a coherent explanation for how the
cans could have started two of the three fires in any of his briefs or evidence
since the trial. He has not met his burden of showing that there is a reasonable
probability of a different outcome.
Severns asserts that the ATF video shows that Steele gave false testimony
with respect to the ability of aerosol cans to explode generally, and where false
testimony is alleged, a less stringent standard applies. There has been no
showing that the expert knowingly gave incorrect testimony. In any event, even
if false testimony is presented, a new trial is not warranted unless there is a
reasonable likelihood that the false testimony could have affected the jury’s
determination.10 For the same reasons that the failure to disclose the ATF video
fails to meet the Brady standard when there has been no false testimony,
Severns cannot prevail. He has not presented evidence or even a logical theory
as to how the aerosol cans in this particular case could have surmounted
physical obstacles between one point of the fire’s origin and the other two. There
is no reasonable likelihood that the jury’s decision after a new trial would be
different.
III
Severns contends that the ATF video and the alarm operation manual
qualify as newly discovered evidence and that the district court erred in denying
his motion for a new trial based on this newly discovered evidence. “We review
[the] district court’s denial of a motion for a new trial based on newly discovered
evidence for abuse of discretion.”11 Such motions are disfavored and reviewed
10
See Moody v. Johnson, 139 F.3d 477, 484 (5th Cir. 1998) (“[I]f false evidence is
presented by the prosecution at trial, a new trial is warranted only if the false testimony could
have, in any reasonable likelihood, affected the jury’s determination.”).
11
United States v. Erwin, 277 F.3d 727, 731 (5th Cir. 2001).
8
No. 07-40615
with great caution.12 To obtain a new trial, a “defendant must prove: (1) the
evidence is newly discovered and was unknown to the defendant at the time of
trial; (2) the failure to detect the evidence was not due to a lack of diligence by
the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the
evidence is material; and (5) the evidence if introduced at a new trial would
probably produce an acquittal.”13
For the reasons considered above, the ATF video does not meet the
requirements for a new trial based on newly discovered evidence. The alarm
operation manual also fails to meet the newly discovered evidence requirement
because the manual had been available on a publicly accessible Internet site for
over ten years. Severns’s failure to discover this evidence was due to his own
lack of diligence. We cannot say that the district court abused its discretion in
denying Severns’s motion for a new trial based on newly discovered evidence.
IV
Count 15 of the indictment alleged that Severns damaged and destroyed
a building and other real and personal property by means of fire, “which resulted
in personal injury to a public safety officer performing duties, a violation of [18
U.S.C.] Section[] 844(i).” The jury found Severns guilty as charged. The jury
also answered “yes” to a question inquiring if it found “beyond a reasonable
doubt that the fire at Lone Star Guns, Inc., resulted in personal injury to any
person, including a public safety officer performing duties as a direct or
proximate result of the fire.” These findings resulted in a minimum seven-year
12
Id.
13
United States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004).
9
No. 07-40615
sentence for arson rather than a five-year minimum sentence.14 Severns
contends the evidence was insufficient to support the personal injury findings.
Because Severns properly preserved his sufficiency-of-the-evidence issue
by moving for a judgment of acquittal at trial, we review de novo.15 We will
affirm the district court if a reasonable trier of fact could conclude that the
“elements of the offense were established beyond a reasonable doubt, viewing the
evidence in the light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict.”16
At trial, Captain Toby Peacock of the Plano Fire Department testified that
while fighting the fire at Lone Star Guns, he aggravated an old injury to his
back, which caused him considerable pain and discomfort. He related that
during “fire overhaul,” which means searching for hidden fire or embers inside
walls, closets, above the ceiling, or other places where fire may be hidden after
the main blaze has been extinguished, he did something that aggravated a spot
in his back and caused pain between his shoulders. His air tank aggravated it
more, and he related that he subsequently sought treatment from a physician,
received two injections in his back, and recovered in two or three months.
Neither Severns nor the Government has provided us with any case law
or other guidance in construing what is meant by “personal injury” in § 844(i) or
any other federal statute. We will therefore give that term its commonly
understood meaning.
Severns contends that aggravating a previous injury does not constitute
“personal injury” under § 844(i). However, he again cites no authority for such
14
See 18 U.S.C. § 844(i) (providing for a mandatory minimum seven-year sentence for
damage or destruction of a building by means of fire “if personal injury results to any person,
including any public safety officer performing duties as a direct or proximate result of conduct
prohibited by this subsection”).
15
See United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).
16
Id.
10
No. 07-40615
a proposition, and we see no reason why aggravation of an old injury would not
be a “personal injury” within the meaning of the statute.
Severns argues that the Government failed to present any medical
evidence as to the cause or extent of Captain Peacock’s injury. Captain
Peacock’s testimony that he sustained an injury, its nature, and his description
of the medical treatment he received for it was adequate for the jury reasonably
to conclude that an injury occurred. The injury was not extensive, but it would
be a compensable personal injury in a civil action, although the compensation
might be relatively minimal.
Severns asserts that the Government had the burden of showing that it
was foreseeable that a firefighter wearing his normal breathing equipment in
the course of fighting the fire “would somehow be injured by wearing that
equipment at this fire.” Section 844(i) requires only that “personal injury results
to any person, including any public safety officer performing duties as a direct
or proximate result of conduct prohibited by this subsection.” Captain Peacock
did not explain in great detail how his injury occurred, but he did testify that it
occurred as a result of his firefighting activities and that the equipment on his
back exacerbated the pain. His injury was a direct and proximate result of the
arson. There was sufficient evidence to support the jury’s verdict regarding
personal injury to a firefighter.
V
Severns contends that he has received consecutive sentences punishing
him for the same conduct in violation of the Double Jeopardy Clause of the Fifth
Amendment.17 He maintains that his sentence for use of fire to commit mail
fraud punishes him for the same conduct as his sentences for arson and mail
17
U.S. CONST. amend. V (“nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb”).
11
No. 07-40615
fraud. Severns asserts that once mail fraud and arson have been proven, use of
fire to commit mail fraud has been proven. He makes the same argument
regarding punishment for arson, wire fraud, and use of fire to commit wire
fraud. As we consider in more detail below, the ultimate question we must
answer is whether Congress expressed a clear intent to permit punishment
cumulatively (consecutively) for arson, for another felony offense, and for “use”
of the arson fire in committing that other offense. We review this question of
law de novo.18
A
The Supreme Court has explained that “[t]he Double Jeopardy Clause is
cast explicitly in terms of being ‘twice put in jeopardy,’”19 and that Court has
“consistently interpreted [the Double Jeopardy Clause] ‘to protect an individual
from being subjected to the hazards of trial and possible conviction more than
once for an alleged offense.’”20 “With respect to cumulative sentences imposed
in a single trial,” the Supreme Court has held that “the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.”21 One of the Court’s seminal
decisions in this area, Blockburger v. United States, stated that “[t]he 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.”22 The Supreme Court has subsequently explained that
18
United States v. Smith, 354 F.3d 390, 398 (5th Cir. 2003).
19
Missouri v. Hunter, 459 U.S. 359, 365 (1983).
20
Id. (quoting Burks v. United States, 437 U.S. 1, 11 (1978)) (internal quotations
omitted).
21
Id. at 366.
22
284 U.S. 299, 304 (1932).
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No. 07-40615
“‘[t]he assumption underlying [this] rule is that Congress ordinarily does not
intend to punish the same offense under two different statutes.’”23 It follows that
“‘where two statutory provisions proscribe the “same offense,” they are construed
not to authorize cumulative punishments in the absence of a clear indication of
contrary legislative intent.’”24 The Supreme Court made clear in Missouri v.
Hunter that the Blockburger inquiry as to whether two statutes proscribe the
same conduct is a rule of statutory construction utilized when the legislative
body’s intent is not clear.25 When a state or federal “legislature specifically
authorizes cumulative punishment under two statutes, regardless of whether
those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task
of statutory construction is at an end and the prosecutor may seek and the trial
court or jury may impose cumulative punishment under such statutes in a single
trial.”26
B
The statute primarily at issue is 18 U.S.C. § 844(h), which provides for an
enhanced sentence when fire or explosives are used to commit a felony. The
Government contends that § 844(h) specifically authorizes cumulative
punishment for the same conduct. That subsection provides, in pertinent part:
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
23
Hunter, 459 U.S. at 366 (quoting Whalen v. United States, 445 U.S. 684, 691 (1980)).
24
Id. (quoting Whalen, 445 U.S. at 691-92).
25
Id. at 368.
26
Id. at 368-69 ; see also United States v. Corona, 108 F.3d 565, 572 (5th Cir. 1997)
(“When multiple punishments are at issue, our inquiry focuses on whether Congress intended
for the defendant’s actions to be subject to the punishment received. If statutory language
authorizes the punishment, there can be no double jeopardy violation.”).
13
No. 07-40615
subsection [shall not] run concurrently with any other
term of imprisonment including that imposed for the
felony in which the explosive was used or carried.27
Our court has interpreted and applied § 844(h) in prior decisions. As an
initial matter, we have held that although the statute refers to “the explosive . . .
used or carried” in providing for a consecutive period of imprisonment, this
reference was intended to include of the use of fire.28 Congress has stated clearly
and directly that an additional ten-year term of imprisonment should be
imposed, to run consecutively, if a conviction is obtained for the use of fire under
§ 844(h). We held in United States v. Creech that sentences for both mail fraud
under 18 U.S.C. § 1341 and use of fire during the commission of mail fraud
based on § 844(h) did not violate the Double Jeopardy Clause.29
Our court has also concluded that § 844(h) authorizes convictions and
cumulative sentences for conspiracy to commit arson and use of fire to commit
a felony even “when the use of fire charge is based upon the conspiracy to
commit arson.”30 We reasoned in Riggio that “[t]he conspiracy statute is aimed
at punishing persons acting in concert to commit an offense,” while “[a]rson and
the use of fire statutes are aimed at punishing those who make criminal use of
fire.”31 We noted that the elements of proof for conspiracy to commit arson and
use of fire to commit conspiracy to commit arson differed because “[c]onspiracy
to commit arson does not require that the individual defendant actually use
27
18 U.S.C. § 844(h) (emphasis added).
28
United States v. Creech, 408 F.3d 264, 272-73 (5th Cir. 2005) (agreeing with other
circuit courts that Congress intended to treat the use of fire and use of explosives
interchangeably).
29
Id. at 273; see also United States v. Fiore, 821 F.2d 127, 130-31 (2d Cir. 1987).
30
United States v. Riggio, 70 F.3d 336, 338 (5th Cir. 1995) (“We conclude that
conspiracy to commit arson may serve as the predicate felony for a use of fire charge.”).
31
Id.
14
No. 07-40615
fire.”32 However, we indicated in dicta that we did not perceive any
congressional intent to impose an additional ten-year term of imprisonment
when the predicate felony for use of fire is an arson conviction under 18 U.S.C.
§ 844(i),33 when we noted that the facts in Riggio were “different from the
situation in which the defendant is convicted of arson” and the arson is the
underlying offense for the use of fire conviction and sentencing enhancement.34
Were we writing on a clean slate, we might consider congressional intent
in more detail to determine whether Congress expressed an intent to allow the
sentencing enhancement in § 844(h)(1) to apply to all underlying felonies,
including arson as the predicate felony. First, the language of § 844(h)(1) applies
to all felonies. It does not exclude arson. Second, the subsection immediately
following § 844(h), which is § 844(i), criminalizes arson and attempted arson. It
could be argued that Congress would have made some cross-reference in either
§ 844(h)(1) or § 844(i) if it intended arson to be excluded from the sentencing
enhancement for “any felony.” It is also difficult to understand why Congress
would intend for conspiracy to commit arson to be a permissible predicate
offense for the ten-year enhancement for use of fire but not the actual act of
arson. Additionally, the legislative history of § 844(h)(1) at least suggests that
arson to defraud an insurance company comes within the intended ambit of the
“use of fire” enhancement. In explaining the rationale for the enhancement, it
is stated that “[f]ire is used extensively not only for the criminal purposes of
32
Id.; see also id. n.11 (“Conspiracy to commit arson requires that two or more
individuals plan to use fire in maliciously destroying or damaging a building used in interstate
commerce . . . . The actual use of fire is not a requirement of [18 U.S.C. § 844(i)].”).
33
18 U.S.C. § 844(i) (“Whoever maliciously damages or destroys, or attempts to damage
or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal
property used in interstate or foreign commerce or in any activity affecting interstate or foreign
commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined
under this title, or both. . . .”)
34
Riggio, 70 F.3d at 338 n.10.
15
No. 07-40615
extortion, terrorism and revenge, but to conceal other crimes such as homicide,
and for fraud against insurance companies.”35 On the other hand, it can be
argued somewhat persuasively that Congress did not intend to authorize the
enhancements in § 844(h) in addition to the minimum sentences set forth for
convictions under § 844(i). This would mean that neither arson nor conspiracy
to commit arson could serve as predicate offenses under § 844(i). But, our
inquiry in this regard is foreclosed because this court’s precedent indicates that
congressional intent is, at a minimum, unclear.
We held in United States v. Corona that we agreed with the Seventh
Circuit’s assessment of § 844(h) with regard to arson.36 We saw “no indication
from Congress that every arson should be subject to the [sentencing]
enhancement set out in § 844(h)(1).”37 We nevertheless recognized that if
sentences were imposed only for arson and the use of fire to commit conspiracy
to commit arson, Congressional intent was clear that these consecutive
punishments were permissible.38 But the defendant in Corona was convicted of
and received separate sentences for arson, conspiracy to commit arson, and
using fire to commit conspiracy to commit arson.39 We said that if the predicate
offense for use of fire had been arson, rather than conspiracy to commit arson,
there would have been an “obvious double jeopardy violation” because both arson
35
H.R. REP. No. 97-678, as reprinted in 1982 U.S.C.C.A.N. 2631, 2632 (legislative
history to the Anti-Arson Act of 1982, Pub.L. No. 97-298).
36
108 F.3d 565, 572 (5th Cir. 1997) (citing United States v. Chaney, 559 F.2d 1094,
1095-96 (7th Cir. 1977)).
37
Id.; see also United States v. Konopka, 409 F.3d 837, 839 (7th Cir. 2005) (concluding
that the “policy of section 844(h) is . . . embodied . . . in the arson statute, so that the
government’s position amounts to arguing that in enacting that section Congress intended to
increase the sentence for arson by 10 years. There is no indication of such intention.”).
38
Corona, 108 F.3d at 573.
39
Id., at 567-68.
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No. 07-40615
and use of fire to commit arson would punish for burning buildings with an effect
on interstate commerce.40 However, the predicate offense was conspiracy to
commit arson, and we implicitly, if not explicitly, observed that § 844(h) was
inconclusive as to whether Congress intended to punish separately arson,
conspiracy to commit arson, and use of fire to commit conspiracy to commit
arson. We accordingly applied the statutory construction rule in Blockburger
and concluded that “[o]nce the jury has found the defendants guilty of arson and
conspiracy to commit arson, it has found them guilty of using fire as part of that
conspiracy,”41 at least when the overt act of the conspiracy was setting a fire. No
other findings were necessary to establish the use-of-fire offense. We held that
“the government may choose to dismiss any of the three counts,” but it could not
seek convictions and sentences under all three.42 We expressly held that there
could be “multiple punishments” for any combination of two of the three counts:
(1) use of fire to commit conspiracy to commit arson under § 844(h)(1), and
conspiracy to commit arson under 18 U.S.C. § 371; or (2) arson under § 844(i),
and conspiracy to commit arson under § 371; or (3) arson under § 844(i), and use
of fire to commit conspiracy to commit arson.43 In each of these combinations,
one offense contained an element that the other did not.44 But when the third
offense was added to the mix, that was no longer the case.
We applied a similar analysis in United States v. Smith, but the outcome
was different due to the differing elements of each of the three offenses at
40
Id. at 572.
41
Id., at 573.
42
Id. at 574.
43
Id. at 574-75.
44
Id. at 575.
17
No. 07-40615
issue.45 The defendant challenged her sentences for arson under § 844(i),
conspiracy to commit arson and mail fraud under 18 U.S.C. § 371,46 and use of
fire to commit a conspiracy to commit mail fraud and arson under § 844(h)(1).47
We held that each of these counts required proof of an element not required by
the other two.48 Arson required use of fire to destroy a building or other
property, conspiracy to commit arson required an agreement to use fire, and use
of fire to commit mail fraud required that someone was defrauded through the
mails.49 We observed, however, that if the use of fire count had been limited to
use of fire to commit conspiracy to commit arson, and there had been an
acquittal on the mail fraud count, there would have been a double jeopardy
violation, as there had been in Corona.50 The sentences would have rested on
arson, conspiracy to commit arson, and use of fire to commit conspiracy to
commit arson. The latter had no elements different from the combined elements
of the other convictions when the overt act of the conspiracy was arson.
In Smith the defendant was also convicted of and sentenced for mail
fraud.51 However, the defendant did not challenge that sentence, so our court
45
354 F.3d 390, 399-400 (5th Cir. 2003)
46
Id. at 399.
47
Id. at 399, 400 n.13.
48
Id. at 399 (“Each of these offenses contains a unique fact not required by the other
offense . . . .”).
49
Id.
50
Id. at 400; see also id. at 400 n.14 (“We note, however, that the government took an
unnecessary risk in combining the conspiracies into a single count, because there was the
possibility 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.”).
51
See id. (noting that “the use-of-fire count is adequately supported by the felony of mail
fraud, even if not by the conspiracy.”).
18
No. 07-40615
had no occasion to consider whether sentences for arson, mail fraud, and use of
fire to commit mail fraud violated the Double Jeopardy Clause, which is one of
the combinations of sentences that Severns challenges.
From our precedent, several guideposts emerge. Congress has clearly
expressed an intent to permit consecutive punishment for predicate offenses
such as mail or wire fraud and use of fire to commit mail or wire fraud,52 so there
is no double jeopardy violation when those are the only offenses punished. It is
unnecessary to perform a Blockburger analysis in reaching that conclusion.
However, it is unclear whether Congress intended for the enhancement in
§ 844(h) to apply to every arson offense.53 Accordingly, when sentences include
punishment for arson and use of fire to commit a felony, the Blockburger test
applies. Our precedent also tells us that there are combinations of punishment
for arson and use of fire to commit a felony that pass the Blockburger test,
including sentences for both arson and use of fire to commit conspiracy to
commit arson.54
In the present case, Severns has been punished in two combinations that
he contends fail the Blockburger inquiry: (1) arson, mail fraud, and use of fire to
commit mail fraud, and (2) arson, wire fraud, and use of fire to commit wire
fraud. The double jeopardy analysis regarding each of these sentence groupings
is the same. We begin with mail fraud.
C
52
18 U.S.C. § 844(h) (“Whoever . . . uses fire . . . to commit any felony . . . 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 including that imposed for the felony in
which the explosive was used or carried.”).
53
See Corona, 108 F.3d at 572.
54
Id. at 574-75; United States v. Riggio, 70 F.3d 336, 338 (5th Cir. 1995).
19
No. 07-40615
One of the first questions we must answer is whether, in performing a
Blockburger analysis, we compare the elements of arson in § 844(i) to the
elements of the “us[ing] fire . . . to commit any felony” or instead, to the elements
of “us[ing] fire . . . to commit” the specific predicate felony at issue, in this case,
mail fraud. The differing approaches can lead to differing outcomes.
In applying Blockburger, the Fourth Circuit seems to have looked beyond
the elements of the particular predicate offense actually charged and concluded
that the arson offense described in § 844(i) does not punish the same conduct as
the use of fire under § 844(h)(1).55 Focusing “‘on the elements of the crimes and
not the similarity of the underlying facts,’”56 that court reasoned that arson
required proof of damage to a building by means of fire while “a ‘use’ of fire
under § 844(h)(1) need not result in damage or destruction of property to violate
the statute,” citing a decision that involved intimidation by use of a burning
cross.57 The predicate offense for which the defendant in Martin was sentenced
was mail fraud, not intimidation by use of a burning cross.58 The Martin
decision could be read as looking broadly, beyond the actual predicate offense,
to “any felony,” in comparing the elements of arson and use of fire.59
We conclude that Supreme Court precedent requires us to consider only
the elements of use of fire and the particular predicate offense at issue rather
than any possible use of fire to commit any conceivable felony. In Illinois v.
Vitale,60 the Supreme Court examined the analysis it had undertaken in Harris
55
United States v. Martin, 523 F.3d 281, 292 (4th Cir. 2008).
56
Id. (quoting United States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2007)).
57
Id. (citing United States v. Wildes, 120 F.3d 468, 470 (4th Cir. 1997)).
58
Id. at 287.
59
Id. at 292.
60
447 U.S. 410, 420 (1980).
20
No. 07-40615
v. Oklahoma,61 explaining that the felony-murder statute under consideration
“on its face did not require proof of a robbery to establish felony murder; other
felonies could underlie a felony-murder prosecution. But for the purposes of the
Double Jeopardy Clause, we did not consider the crime generally described as
felony murder as a separate offense distinct from its various elements.”62
Instead, the Court “treated a killing in the course of a robbery as itself a
separate statutory offense.”63 Similarly, in Whalen v. United States, rape was
one of six predicate offenses listed in a statute proscribing felony murder, and
the Supreme Court held that it would consider the elements of rape in
performing the Blockburger analysis, not the elements of robbery or kidnaping
or arson, which were among the offenses listed as predicates for felony murder.64
D
Our court has held that the Blockburger “inquiry focuses on the statutory
elements of the offenses, not on their application to the facts of the specific case
before the court.”65 Our application of Blockburger in United States v. Corona66
does not require a different methodology. As discussed above, the defendants in
Corona received separate sentences for arson, conspiracy to commit arson, and
using fire to commit conspiracy to commit arson,67 and our court hypothesized
a very unlikely means of using fire to commit conspiracy to commit arson (by
61
433 U.S. 682 (1977).
62
Vitale, 447 U.S. at 420 (internal citation omitted).
63
Id.
64
445 U.S. 684, 694 (1980).
65
United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994) (internal citation
omitted).
66
108 F.3d 565 (5th Cir. 1997).
67
Id. at 567.
21
No. 07-40615
using smoke signals or hanging a lantern in a belfry) in determining whether
each offense required proof of an additional fact that the other two did not.68 The
Corona opinion concluded that although there was at least hypothetically a way
in which punishment for each of the three offenses might pass the Blockburger
test, when viewed realistically, it did not.69 Accordingly, notwithstanding its
hypothetical, the court concluded that sentences for arson under § 844(i),
conspiracy to commit arson, and use of fire to commit conspiracy to commit arson
in violation of § 844(h) punished the same conduct.70 We are not convinced that
smoke signals or hanging a lantern would actually be “use of fire” within the
meaning of § 844(h), but in any event, courts must engage in realistic
probabilities, not theoretical possibilities, in determining how statutes might be
violated.71 The smoke or lantern signal hypothesis in Corona is more of a
theoretical possibility than a realistic probability. Moreover, how we apply
Blockburger was explained in our decision in United States v. Singleton,72 as
recognized in Corona,73 and even were there a conflict between the two opinions,
which we do not suggest or resolve, Singleton is controlling as the earlier of the
two decisions.
68
Id. at 573-74.
69
Id.
70
Id.
71
See generally James v. United States, 127 S. Ct. 1586, 1597 (2007) (explaining in a
different but analogous context,“‘[t]o find that a state statute creates a crime outside the
generic definition of a listed crime in a federal statute requires more than the application of
legal imagination to a state statute's language. It requires a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime’” (quoting Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 822, (2007))).
72
16 F.3d 1419, 1422 (5th Cir. 1994) (“[T]he question is not whether this violation of
§ 2119 also constituted a violation of § 924(c), but whether all violations of the former
constitute violations of the latter.”).
73
Corona, 108 F.3d at 572.
22
No. 07-40615
For these reasons, we limit our Blockburger inquiry to comparing the
elements of arson in § 844(i) and mail fraud in § 1341, to the elements of use of
fire to commit mail fraud, a violation of § 844(h)(1), rather than use of fire to
commit any possible felony.
E
In applying Blockburger, we have held that if “there are more than two
statutory provisions at issue, each offense must contain an element not
contained in the sum of the elements of the other offenses.”74 We have explained
that the inquiry entails determining whether all violations of one statute
constitute a violation of the other.75
It is obvious that a conviction for arson does not necessarily establish mail
fraud or use of fire to commit mail fraud. Arson requires no proof of intent to
defraud or use of the mail. Nor does every use-of-fire-to-commit-mail-fraud
violation necessarily establish arson, as that offense is described in § 844(i).
There must be damage or an attempt to damage property in order to commit
arson.76 Property damage is not an element of § 844(h)(1). Under § 844(i), fire
could be used intentionally to inflict personal injuries or death, without any
harm to or attempt to harm property, and the mails could then be used in an
effort to defraud an insurer or others to obtain benefits that would only be
recoverable if the injuries or death were accidental. Examples that come to mind
involve key-man or other life insurance or coverage obtained by professionals,
such as surgeons, athletes or artists, to compensate for lost earnings or earning
capacity due to an accidental injury.
74
Id. (citing United States v. Davis, 793 F.2d 246, 248 (10th Cir. 1986)).
75
Id.; see also United States v. Woodward, 469 U.S. 105, 107 (1985) (examining whether
“every violation of the currency reporting statute necessarily entails a violation of the false
statement law”).
76
See 18 U.S.C. § 844(i).
23
No. 07-40615
The more difficult question is whether convictions for both arson and mail
fraud will always establish use of fire to commit mail fraud without proof of any
additional fact. Tracking 18 U.S.C. § 1341, the Supreme Court has said that the
elements of mail fraud are “use of the mails in furtherance of ‘any scheme or
artifice to defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises.’”77 The elements of arson are
that the defendant “(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.”78 Hewing to the principle
that we consider the elements of the statutes, not the facts of any particular
case, proof of both arson and mail fraud will not necessarily prove use of fire to
commit mail fraud. The missing link is proof of the connection between the
arson and mail fraud, that is, that fire was used to commit mail fraud.
We find support for this conclusion in decisions from at least two other
circuit courts that have upheld sentencing a defendant for arson, mail fraud, and
use of fire to commit mail fraud in the face of claims of double jeopardy
violations.79 In United States v. Patel, the First Circuit’s ultimate holding was
that the law was unclear regarding double jeopardy and the combination of
sentences for arson, mail fraud, and using fire to commit mail fraud, and
accordingly, there was no plain error.80 But the court provided alternative
reasons for its decision. It recognized that Congress clearly intended to punish
cumulatively a predicate felony, other than arson, and using fire to commit that
77
Cleveland v. United States, 531 U.S. 12, 15 (2000).
78
United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994).
79
United States v. Martin, 523 F.3d 281, 284 (4th Cir. 2008); United States v. Patel, 370
F.3d 108, 114 (1st Cir. 2004).
80
Patel, 370 F.3d at 118.
24
No. 07-40615
predicate felony, which in Patel was mail fraud.81 The First Circuit then
concluded that “[n]either 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,” so that court proceeded with a Blockburger analysis.82
The differences between arson and mail fraud were readily apparent. With
regard to the use of fire offense, the court concluded that “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.”83
In Patel, the First Circuit examined our decision in Corona84 at some
length, distinguishing it on the basis that the defendant in Corona was punished
for arson, conspiracy to commit arson, and using fire to commit conspiracy to
commit arson, and Corona had concluded that “Congress did not intend the
using fire statute to enhance the punishment for all arsons.”85 “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. . . . The court declined to
countenance this prosecutorial ‘sleight of hand’ to avoid the rule that a using fire
conviction cannot be predicated on arson as the underlying felony.”86 In
distinguishing Corona from the convictions at issue in Patel, the First Circuit
reiterated its conclusion that “to gain the use of fire conviction the government
had to convince the jury of an additional element not required for either arson
81
Id. at 115.
82
Id. at 116.
83
Id.
84
108 F.3d 565 (5th Cir. 1997).
85
Patel, 370 F.3d at 116.
86
Id. at 116-17 (internal footnote and citation omitted).
25
No. 07-40615
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.”87 We agree with this analysis of both Corona and the
elements of use of fire to commit mail fraud.
The Fourth Circuit similarly held in United States v. Martin that separate,
consecutive sentences for arson, mail fraud, and use of fire to commit mail fraud
did not violate the Double Jeopardy Clause.88 The Fourth Circuit first
recognized, as we and Patel have done, that Congress expressly authorized
separate punishment for mail fraud and use of fire to commit mail fraud.89 The
Fourth Circuit also concluded, as has our court, that the language of 18 U.S.C.
§ 844(h) and § 844(i) was “inconclusive” regarding cumulative punishment for
arson and use of fire.90 The Fourth Circuit applied Blockburger and decided that
the arson offense described in § 844(i) does not punish the same conduct as the
use of fire under § 844(h)(1).91 The court focused “‘on the elements of the crimes
and not the similarity of the underlying facts.’”92 It explained that arson
required proof of damage to a building by means of fire while “a ‘use’ of fire
under § 844(h)(1) need not result in damage or destruction of property to violate
the statute,” citing a decision that involved intimidation by use of a burning
cross, as we have discussed above.93 The Fourth Circuit distinguished our
decision in Corona, and as an additional basis for its conclusion, the court quoted
87
Id. at 117.
88
523 F.3d 281, 291-93 (4th Cir. 2008).
89
Id. at 291.
90
Id. at 292.
91
Id.
92
Id. (quoting United States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2007)).
93
Id. (citing United States v. Wildes, 120 F.3d 468, 470 (4th Cir. 1997)).
26
No. 07-40615
and embraced Patel’s rationale that “‘using fire to commit mail fraud required
the government to connect the arson to the mail fraud.’”94 Again, as already
noted, we agree with this latter rationale.
Because proof of arson and mail fraud would not establish use of fire to
commit mail fraud in every case, Severns may be sentenced for arson, mail
fraud, and use of fire to commit mail fraud. This analysis is equally applicable
to Severns’s convictions for arson, wire fraud, and use of fire to commit wire
fraud. However, as we explain below, the Government cannot maintain the two
separate convictions and sentences for use of fire in the present case.
VI
The final challenge to Severns’s sentence is that because only one fire
incident occurred, only one conviction can result under 18 U.S.C. § 844(h)(1).
Consequently, he contends, the Government must elect between the conviction
for use of fire to commit mail fraud (Count 16) and use of fire to commit wire
fraud (Count 17), and the district court erred in imposing two, consecutive ten-
year sentences for these convictions. Severns asserts that this court’s precedent,
including United States v. Walters95 and United States v. Phipps,96 construing
and applying 18 U.S.C. § 924(c), regarding use of a firearm, support his position.
The Government states in its brief that this “argument may be well taken.” We
agree.
The question is one of statutory construction, and our decisions regarding
the sentencing enhancements under 18 U.S.C. § 924(c)(1) are instructive if not
dispositive. We have held that the “unit of prosecution” under § 924(c)(1) was
94
Id. at 293.
95
351 F.3d 159, 171-72 (5th Cir. 2003).
96
319 F.3d 177, 184-89 (5th Cir. 2003).
27
No. 07-40615
a single use of a single firearm because § 924(c)(1) criminalized the “use,
carriage, or possession of a firearm during and in relation to a predicate
offense.”97 The text of 18 U.S.C. § 844(h)(1) is similar with respect to the unit of
prosecution. That section criminalizes the “use[] [of] fire or an explosive to
commit any felony which may be prosecuted in a court of the United States.” In
the present case, a fire occurred that damaged and destroyed Lone Star Gun’s
premises. Severns may be prosecuted and punished for use of fire to commit
mail fraud or use of fire to commit wire fraud, but not both.
When, as in this case, the counts are multiplicitous, we remand for the
Government to choose which count to retain.98 The district court should then
vacate the other conviction and resentence Severns.99
* * *
We AFFIRM Severns’s convictions on Counts 1–12 and 14–15, and his
sentences on Counts 1–12, 14, and 15. Because only one sentence enhancement
under § 844(h) may be imposed, we VACATE his sentences on Counts 16 and 17
and REMAND to the district court for resentencing after the Government elects
which of the convictions on Counts 16-17 it will pursue. The district court
should then vacate the conviction on the remaining count.
97
Walters, 351 F.3d at 171 (quoting 18 U.S.C. § 924(c)(1), and discussing Phipps, 319
F.3d at 186).
98
See United States v. Heath, 970 F.2d 1397, 1402 (5th Cir. 1992).
99
Id.
28