United States v. Severns

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.

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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”).

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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.

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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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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.

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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