United States v. Gardner, Ruby

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2193

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUBY GARDNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 97 CR 20054--Michael P. McCuskey, Judge.

Argued January 12, 2000--Decided May 3, 2000

Before POSNER, Chief Judge, and COFFEY and RIPPLE,

Circuit Judges.

RIPPLE, Circuit Judge. On April 23, 1995, a fire

occurred at the offices of Gardner Trucking, Inc.

Thereafter, Ruby Gardner was charged with arson

in violation of 18 U.S.C. sec.sec. 844(i) and 2

(Count I), mail fraud in violation of 18 U.S.C.

sec.sec. 1341 and 2 (Counts II and III), and

using fire to commit a federal felony in

violation of 18 U.S.C. sec. 844(h) (Count IV).

Although she pleaded not guilty, a jury found her

guilty on all four counts. The district court

sentenced her to 33 months imprisonment for each

of Counts I, II and III, to be served

concurrently, and to 60 months imprisonment for

Count IV, to be served consecutively to the 33-

month term. Ms. Gardner appeals. She claims that

there was insufficient evidence to convict her,

that the district court abused its discretion in

allowing the expert testimony of Dr. John DeHaan,

and that the sentencing scheme under 18 U.S.C.

sec. 844(h), as applied, does not reflect the

intent of Congress and is also violative of the

Eighth Amendment. For the reasons set forth in

the following opinion, we affirm the judgment of

the district court.

I

BACKGROUND

A.

1.

Ms. Gardner was part owner, president, and

director of Gardner Trucking. Among her duties,

she handled the financial aspects of the

corporation. Gardner Trucking experienced

financial difficulties prior to the fire on April

23, 1995. For example, the company was often late

paying its rent. Its drivers experienced

difficulties being paid, obtaining money to

purchase fuel, and having the company repair

their trucks. Revenues at the beginning of 1995

were less than half the revenues from the same

time frame in 1994. The company wrote an

increasing number of checks without sufficient

funds and told several creditors that it was

experiencing financial problems.

Also, at the beginning of 1995, the Internal

Revenue Service ("IRS") informed Ms. Gardner

that, because of an outstanding tax lien, it

would attempt to attach the company’s assets.

Consequently, on March 30, it required her to

produce corporate records to determine if any

funds were available for collection. Meanwhile,

around March 28, the company received a notice of

intent to cancel insurance policies on its trucks

based on overdue policy payments. By the week of

April 21, Gardner Trucking was not paying its

drivers or its clerical employees.

According to the testimony at trial, at the time

of the fire, Gardner Trucking owed $136,000 with

just over $10,000 in cash accounts. It had

several debts that were past due or in arrears

and tax liens from both the Illinois Department

of Revenue and the IRS.

Approximately two weeks prior to the fire, Ms.

Gardner called Turner Risk Management seeking an

insurance premium quote for Gardner Trucking’s

office property. Seven days before the fire, she

asked her brother-in-law, an independent

insurance agent for Funk Insurance Agency, to

write a commercial insurance policy for Gardner

Trucking. Five days before the fire, the agency

issued a 30-day insurance binder on behalf of

American States Insurance Company to Gardener

Trucking with a contents replacement cost policy

limit of $106,200. Prior to receiving this

insurance policy, Gardner Trucking had not been

insured since October 7, 1994; its previous

policy had been canceled because of its failure

to pay its premiums.

2.

Shortly after 3 p.m. on Sunday, April 23, 1995,

Jerry and Judith Livingston were driving to their

house, which was located about 60 feet from the

building where Gardner Trucking was situated,

when a car cut them off. Both Jerry and Judith

Livingston testified that the car was driven by

Ms. Gardner and that it had the license number

LGM 439. The car and license plate were both

registered to Ms. Gardner. After driving in front

of the Livingstons, the car turned into Gardner

Trucking and parked. Jerry Livingston testified

that, at this time, no smoke or fire could be

seen at Gardner Trucking.

About 20 to 30 minutes after the Livingstons

arrived home, a neighbor arrived to tell them

that Gardner Trucking was aflame. Jerry

Livingston went outside and saw heavy black smoke

rising from the building. The Livingstons noticed

Ms. Gardner sitting in her car across the street.

Firefighters arrived and forced their way into

the building. The volunteer fire chief, Don

Madlem, arrived at the fire at approximately 4:12

p.m. and talked with Ms. Gardner. According to

Madlem, she appeared excited and concerned about

the fire but not hysterical or crying. In fact,

he stated that she spoke with a normal,

conversational tone.

That same night, Illinois State Fire Marshal

Investigator Donald Tankersley arrived to examine

the scene of the fire. He observed that the

heaviest fire damage had occurred in Ms.

Gardner’s office and in the adjoining office and

concluded that the fire had originated in those

two rooms. The center floor area of Ms. Gardner’s

office was burned out, which indicated intense

fire at the floor level. The detection dog

alerted in this area and at several places in the

adjoining office, which indicated the possibility

that an ignitable liquid was present. The dog did

not alert in any place other than Ms. Gardner’s

office and the adjoining office. Tankersley

opined, based on the findings and the data

collected at the scene, that the fire was set

intentionally.

Insurance investigator Stephen Briggs examined

the scene of the fire three days later. According

to Briggs, the heat and burn patterns were

consistent with an accelerant being used in the

fire and with two separate areas of origin for

the fire. The doors were locked throughout the

duration of the fire, and no forcible entry,

other than that of the firefighters, was evident.

Based on his personal examination of the wiring

of the entire building, Briggs determined that

the source of the fire was not the electrical

system. Although Briggs’ written report of his

investigation did not state explicitly that he

ruled out the electrical system as the cause of

the fire, at trial he testified to that effect.

Briggs concluded, at trial, that the fire

originated at floor level, that a large quantity

of liquid accelerant had been used in Ms.

Gardner’s office and in the adjoining office, and

that the two fires were set intentionally.

As part of the investigation, samples from the

scene of the fire were sent to Bri-Mar

International Laboratories for analysis. Samples

from Ms. Gardner’s office and from the adjoining

office contained a Class 2 accelerant; Class 2

accelerants include gasolines and camping fuels.

The Government retained Dr. John DeHaan, an

expert in investigating the cause and origin of

fires, to review the evidence from the fire. He

reviewed 120 photographs and the three reports

from the investigators of the fire scene./1 He

also conducted personal interviews with people

who were at the scene to learn additional details

about the fire. According to the testimony at

trial, experts in the field of fire cause and

origin investigation commonly rely on

photographs, videotapes, diagrams, sketches,

interview reports, and personal interviews with

persons present at the scene to formulate an

opinion. In Dr. DeHaan’s opinion, the data he

received was sufficient to make a proper analysis

of this particular fire.

Dr. DeHaan opined that two separate origins of

the fire existed, that faulty electrical wiring

was not the ignition source, and that the burn

pattern and the damage were consistent with the

use and presence of an accelerant.

3.

Around June 26 or 27, Ms. Gardner sent, through

the United Parcel Service, proof of loss to

Gardner Trucking’s insurer. Then, on July 12, she

sent the insurer, through United States Mail,

additional documents relating to her insurance

claim. These two acts formed the basis for the

two counts of mail fraud. They also were the

basis for the charge of using fire to commit a

felony because the Government argued that Ms.

Gardner had used fire to commit the underlying

felony of mail fraud.

B.

1.

At trial, defense counsel cross-examined

Tankersley about the possibility that electrical

wiring had caused the fire, and Tankersley

conceded that he had not investigated the

electrical system at all but had ruled out the

electrical system as a possible source of the

fire based only on reports of other scene

investigators. Briggs testified that he had ruled

out the electrical system as the cause of the

fire by examining the wiring of the entire

building, but defense counsel, on cross-

examination, attempted to impeach Briggs’ method

of investigation and noted that Briggs’ written

report did not state explicitly that he had ruled

out an electrical cause of the fire.

Ms. Gardner made a motion in limine to exclude

the testimony of Dr. DeHaan, which the court

denied. She renewed this motion after Briggs’

testimony and claimed that Dr. DeHaan’s proposed

testimony was cumulative and was lacking in

direct knowledge. The district court again denied

the motion and ruled that, based on the cross-

examination of the Government’s other expert

witnesses, the testimony was still unclear

whether a potential electrical cause of the fire

had been properly examined. Dr. DeHaan proceeded

to testify at trial that electrical wiring

problems had not caused the fire, that an

accelerant had been used and, thus, that the fire

was set intentionally.

2.

The jury found Ms. Gardner guilty of all four

charges in the indictment. At sentencing, the

district court determined that Ms. Gardner’s

offense level was 20 and that her criminal

history was Category I. Therefore, the district

court found that her guideline sentencing range

was 33 to 45 months on the arson and mail fraud

counts and that she faced a mandatory minimum of

60 additional months to be served consecutively

for using fire to commit a felony. The court

sentenced her to 93 months imprisonment: 33

months for the arson count and for the two mail

fraud counts, to be served concurrently, and 60

months for the final count of using fire to

commit a felony, to be served consecutively.

II

DISCUSSION

A.

We first address Ms. Gardner’s claim that her

conviction is based on insufficient evidence.

When reviewing an insufficiency of the evidence

claim, we must accept the evidence in the light

most favorable to the prosecution. See United

States v. Szarwark, 168 F.3d 993, 995 (7th Cir.

1999); United States v. O’Brien, 119 F.3d 523,

532 (7th Cir. 1997); United States v. Dunigan,

884 F.2d 1010, 1013 (7th Cir. 1989). Also, "[o]ur

inquiry is limited to a determination of whether

any rational trier of fact could have found the

elements of the offense charged beyond a

reasonable doubt." Dunigan, 884 F.2d at 1013. We

shall "’overturn a verdict only when the record

contains no evidence, regardless of how it is

weighed, from which the jury could find guilt

beyond a reasonable doubt.’" Szarwark, 168 F.3d

at 995 (quoting United States v. Moore, 115 F.3d

1348, 1363 (7th Cir. 1997)).

The statutory provision for arson states in

pertinent part: "Whoever maliciously damages or

destroys, or attempts to damage or destroy, by

means of fire or an explosive, any building"

shall be fined and/or imprisoned. 18 U.S.C. sec.

844(i). Ms. Gardner submits that there was

insufficient evidence to prove that she had a

motive to burn Gardner Trucking. Noting that its

obligation is to prove intent, not motive,/2 the

Government counters that it presented

circumstantial evidence to establish that Ms.

Gardner had the requisite intent. That evidence,

if credited by the jury, would indeed have shown

that she had the necessary intent. Specifically,

the Government introduced evidence of her

corporation’s financial condition. In addition,

the evidence showed that she was seen near the

building soon before the fire started, that she

did not appear upset after learning of the fire,

and that the fire had been set intentionally. On

the basis of this evidence, a rational jury was

entitled to conclude that Ms. Gardner had the

requisite state of mind for arson and that she

did, in fact, burn Gardner Trucking.

Ms. Gardner also urges us to determine that

there was insufficient evidence to find that one

of the witnesses who saw her on the scene, Jerry

Livingston, was credible. Our review of a jury’s

credibility determination entails the utmost

deference. See Dunigan, 884 F.2d at 1013. "[I]t

is not our role, when reviewing the sufficiency

of the evidence, to second-guess a jury’s

credibility determinations." United States v.

McGee, 189 F.3d 626, 630 (7th Cir. 1999). As we

have stated, "’absent extraordinary

circumstances,’ this court will not reevaluate

the testimony of a witness to determine his or

her motives or other possible measures of

reliability." Dunigan, 884 F.2d at 1013 (quoting

United States v. Garner, 837 F.2d 1404, 1423 (7th

Cir. 1987)). The testimony that Ms. Gardner

questions was heard by the jury. The jury is the

fact-finder and, thus, is the body responsible

for weighing credibility. Because Ms. Gardner has

not shown us any reason, other than slight

contradictions in Livingston’s testimony, to

reverse the credibility determination of the

jury, we hold that her sufficiency of the

evidence claim must fail.

B.

Ms. Gardner next questions the district court’s

decision to allow the expert testimony of Dr.

DeHaan. She submits that his testimony did not

have a reliable basis and that it was cumulative.

For either of these reasons, Ms. Gardner claims,

this court should conclude that the district

court abused its discretion in allowing Dr.

DeHaan to testify.

1.

Ms. Gardner argues first that the Government did

not have a reliable basis for admitting the

expert testimony of Dr. DeHaan. Federal Rule of

Evidence 702 sets forth when an expert’s

testimony may be admitted:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to

understand the evidence or to determine a fact in

issue, a witness qualified as an expert by

knowledge, skill, experience, training, or

education, may testify thereto in the form of an

opinion or otherwise.

Fed. R. Evid. 702.

Before the district court may allow expert

testimony into evidence, the submitting party

must show that the testimony has a reliable

basis. Rule 703 of the Federal Rules of Evidence

explains:

The facts or data in the particular case upon

which an expert bases an opinion or inference may

be those perceived by or made known to the expert

at or before the hearing. If of a type reasonably

relied upon by experts in the particular field in

forming opinions or inferences upon the subject,

the facts or data need not be admissible in

evidence.

Fed. R. Evid. 703. Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993),

clarifies that an expert may testify after the

trial judge determines that "the expert is

proposing to testify to (1) scientific knowledge

that (2) will assist the trier of fact to

understand or determine a fact in issue." Id. at

592.

Here, Dr. DeHaan testified about the cause and

origin of the fire, which helped the jury

determine whether the fire was caused by arson.

Thus, Dr. DeHaan’s testimony meets the

requirements of Rule 702. We also believe that

the requirements of Rule 703 and the Supreme

Court’s holding in Daubert have been met. Dr.

DeHaan’s reliance on reports, photographs, and

third-party observations, which may not have been

admissible into evidence, served as a reliable

basis for his testimony because these materials

are facts or data "of a type reasonably relied

upon by experts" in the field of fire cause and

origin. See United States v. Lundy, 809 F.2d 392,

395 (7th Cir. 1987); United States v. Lawson, 653

F.2d 299, 302 (7th Cir. 1981); see also In re

James Wilson Assocs., 965 F.2d 160, 172-73 (7th

Cir. 1992).

In Lundy, this court allowed hearsay and third-

party observations to be used by an expert of

arson investigation in forming his opinion. See

809 F.2d at 394-95. Similarly, in Lawson, we

allowed a psychiatrist testifying as an expert to

rely on staff reports, interviews with other

doctors, and background information from the

Marine Corps and United States Attorney’s Office

to form the basis of his opinion. See 653 F.2d at

302. In both cases, we allowed these materials to

form the basis for the expert’s testimony because

they were of a type reasonably relied on by

experts in the field. Similarly, the Sixth

Circuit, in United States v. Ashworth, 836 F.2d

260 (6th Cir. 1988), recognized that photographs

are standard materials used by arson

investigators. See id. at 264.

Here, Dr. DeHaan and the other experts called to

the witness stand testified that photographs and

reports are the type of materials usually relied

on in arson investigation to form an opinion

about the cause of the fire. The district court

was entitled to credit that testimony and to

conclude that the materials that Dr. DeHaan used

as the basis for his testimony were of a type

reasonably relied on by experts in his field and,

thus, were an appropriate basis for his expert

opinion.

2.

Ms. Gardner argues next that Dr. DeHaan’s

testimony was cumulative and therefore

prejudicial. Rule 403 of the Federal Rules of

Evidence states:

Although relevant, evidence may be excluded if

its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.

Fed. R. Evid. 403. "The court’s admission of

evidence under Rule 403 of the Federal Rules of

Evidence is entitled to special deference. ’Only

in an extreme case are appellate judges competent

to second-guess the judgment of the person on the

spot, the trial judge.’" United States v.

Bradley, 145 F.3d 889, 892 (7th Cir. 1998)

(quoting United States v. Crockett, 979 F.2d

1204, 1211 (7th Cir. 1992)). Determining whether

testimony is cumulative rests within the sound

discretion of the district court. See United

States v. Kizeart, 102 F.3d 320, 325 (7th Cir.

1996).

"Evidence is ’cumulative’ when it adds very

little to the probative force of the other

evidence in the case, so that if it were admitted

its contribution to the determination of truth

would be outweighed by its contribution to the

length of the trial, with all the potential for

confusion, as well as prejudice to other

litigants, who must wait longer for their trial,

that a long trial creates." United States v.

Williams, 81 F.3d 1434, 1443 (7th Cir. 1996); see

also Bradley, 145 F.3d at 894 (stating that a

piece of evidence is not cumulative if its

evidentiary value outweighs its contribution to

the length of the trial).

Dr. DeHaan’s testimony was not cumulative

because the Government used it to reply to the

cross-examination of its earlier experts. His

testimony addressed whether the fire had an

electrical source. This evidence was probative

because, if faulty electrical wiring caused the

fire, Ms. Gardner would not be guilty of arson.

On the other hand, if faulty electrical wiring

clearly did not cause the fire, then the

investigators and the jury needed to search for

an alternative source of the fire, such as arson.

During the cross-examinations of the Government’s

other expert witnesses, Tankersley and Briggs,

defense counsel suggested that the fire was not

the result of arson but was caused by an

electrical problem. The cross-examination of

Tankersley demonstrated that he had not

determined personally that the electrical system

was not the cause of the fire but that he had

based his opinion on the conclusions found in the

reports of other scene investigators. The cross-

examination of Briggs questioned his method for

concluding that the electrical wiring did not

cause the fire. It also noted that his written

report lacked a conclusion that ruled out the

electrical system. Because the defense had placed

in question, through cross-examination, the

thoroughness of the other experts’

investigations, the district court certainly did

not abuse its discretion in allowing Dr. DeHaan

to testify on the same issue.

C.

Ms. Gardner submits that applying consecutive

sentence terms for arson and for using fire to

commit a federal felony is unconstitutional on

Double Jeopardy and Eighth Amendment grounds./3

1.

Ms. Gardner first claims, in essence, that the

statute violates the Double Jeopardy Clause of

the Fifth Amendment. She submits that Congress

did not intend to authorize separate and

consecutive punishments for the offense of arson

and for the offense of using fire to commit a

federal felony.

This circuit already has confronted this issue

in United States v. Zendeli, 180 F.3d 879 (7th

Cir. 1999). In that case, we noted that the

judicial task was to determine whether Congress,

in enacting the statute, intended for separate

sections of the statute to authorize the

imposition of separate punishments./4

In Zendeli, because the language, structure, and

legislative history of the statute could yield no

clear answer,/5 we relied on the test enunciated

by the Supreme Court in Blockburger v. United

States, 284 U.S. 299 (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 an additional fact which the

other does not.

Id. at 304./6 In Zendeli, under

indistinguishable circumstances, we held that

each of the two statutory provisions involved

here requires a different element that the other

does not. To prove arson under sec. 844(i), the

Government must show that a defendant damaged or

attempted to damage "property used in interstate

or foreign commerce or in any activity affecting

interstate or foreign commerce." 18 U.S.C. sec.

844(i). To prove that a defendant used fire to

commit a felony under sec. 844(h), the Government

must show that the defendant committed a separate

"felony which may be prosecuted in a court of the

United States." 18 U.S.C. sec. 844(h). Here, that

felony is mail fraud. The Government must have

proven that Ms. Gardner made use of the United

States mail to attempt to defraud the insurance

company./7

A principled adherence, as dictated by the

doctrines of stare decisis and precedent, to our

decision in Zendeli requires that we hold that

Ms. Gardner may be sentenced for arson, for mail

fraud, and for use of fire to commit a federal

felony without violating the Double Jeopardy

Clause of the Fifth Amendment. See Zendeli, 180

F.3d at 886; Nguyen, 28 F.3d at 485.

2.

Finally, Ms. Gardner claims that the statute

violates the Eighth Amendment. However, although

Ms. Gardner sets out the standard for a violation

of the Eighth Amendment, she does not explain why

this statute violates the Eighth Amendment or why

this statute results in excessive punishment.

Furthermore, "the level of punishment to be

imposed for crimes is the business of Congress,

not the courts. Only in very narrow circumstances

has a punishment within statutory limits been

held to violate the Eighth Amendment." United

States v. Farmer, 73 F.3d 836, 840 (8th Cir.

1996).

Conclusion

For the foregoing reasons, we affirm the

judgment of the district court.

AFFIRMED

/1 Dr. DeHaan reviewed the reports from Tankersley,

another fire marshal, and an insurance

investigator.

/2 See United States v. Wilson, 2 F. Supp.2d 1170,

1171 (E.D. Wis. 1998) ("[M]ost crimes require

only proof of an act and an intent to so act.

Motive is usually relegated to the status of

immateriality.").

/3 The statutory provision for arson states as

follows:

(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 .

. . .

18 U.S.C. sec. 844(i). The statute for using fire

to commit a felony states as follows:

(h) Whoever--

(1) uses fire or an explosive to commit any

felony which may be prosecuted in a court of the

United States, or

(2) carries an explosive during the commission

of 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 5 years but not more than 15

years. . . .

18 U.S.C. sec. 844(h).

/4 See Garrett v. United States, 471 U.S. 773, 778

(1985) ("Where the same conduct violates two

statutory provisions, the first step in the

double jeopardy analysis is to determine whether

the legislature--in this case Congress--intended

that each violation be a separate offense."). See

also United States v. Hayward, 6 F.3d 1241, 1245

(7th Cir. 1993) ("A court’s starting point to

determine the intent of Congress is the language

of the statute itself."). If a statute clearly

indicates on its face that Congress intended both

statutory provisions to be applied for the same

conduct, then the statute controls.

If "[t]he provisions are unambiguous on their

face and each authorizes punishment for a

violation of its terms," then Congress intended

punishment under each. Albernaz v. United States,

450 U.S. 333, 336 (1981); 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."); cf. United States v.

Fiore, 821 F.2d 127, 130 (2d Cir. 1987) ("If the

offenses charged are set forth in different

statutes or in distinct sections of a statute,

and each section unambiguously authorizes

punishment for a violation of its terms, it is

ordinarily to be inferred that Congress intended

to authorize punishment under each provision.").

/5 See Zendeli, 180 F.3d at 888 (Ripple, J.,

dubitante) (stating that, for sec. 844, "[t]here

is simply no evidence in this statute, its

structure, or the legislative history that

Congress has authorized consecutive punishments

for arson and for arson in the course of the

commission of another felony"); see also United

States v. Karlic, 997 F.2d 564, 571 (9th Cir.

1993); Fiore, 821 F.2d at 133 (Newman, J.,

concurring); Anti-Arson Act of 1982, Pub. L. No.

97-298, 96 Stat. 1319; H.R. Rep. No. 97-678, at 1

(1982), reprinted in 1982 U.S.C.C.A.N. 2631.

/6 See also Whalen v. United States, 445 U.S. 684,

693-94 (1980); Zendeli, 180 F.3d at 885-86 (7th

Cir. 1999); Corona, 108 F.3d at 572; United

States v. Nguyen, 28 F.3d 477, 485 (5th Cir.

1994); Karlic, 997 F.2d at 570-71; Fiore, 821

F.2d at 130; United States v. Chaney, 559 F.2d

1094, 1096 (7th Cir. 1977).

/7 United States v. Chaney is not controlling. See

Zendeli, 180 F.3d at 887 (Ripple, J., dubitante).

In Chaney, the defendant was charged in Count I

under sec. 844(i) with maliciously attempting to

destroy a structure by means of an explosive and

was charged in Count III under sec. 844(h) with

knowingly using an explosive to commit a felony,

that is, the felony of maliciously attempting to

destroy a structure by means of an explosive. See

Chaney, 559 F.2d at 1096. As this court

discussed, a comparison of the two counts showed

that the charges were identical except for which

statutory provision they were charged under. See

id. "Therefore, the evidence necessary to prove

the offense charged under Count I would prove the

offense charged under Count III, and vice versa."

Id. Therefore, we concluded that, because the

Double Jeopardy analysis asks whether each

statutory provision requires proof of a fact

which the other does not and because each count

would be proved by identical evidence, the two

counts constituted the same offense under the

Double Jeopardy Clause. See id.