Opinion
CRIMINAL ACTION NO. 01-348, SECTION "N"
September 9, 2002
ORDER AND REASONS
Following her convictions of conspiracy to commit arson and mail fraud, arson, mail fraud, use of fire to commit a federal felony and three obstruction of justice counts, the defendant Elizabeth Boyett Smith ("Smith") filed a motion for judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure [Rec. Doc. No. 62], and an alternative motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure [Rec. Doc. No. 60]. Smith also filed a supplemental memorandum in support of her motion for judgment of acquittal. The Government filed an opposition memorandum addressing both of the defendant's motion. The motions were the subject of an oral hearing conducted on Wednesday, September 4, 2002, following which the motions were deemed submitted for decision. For the following reasons the defendant's motions are DENIED.
I. BACKGROUND
On June 14, 2002, after a week long trial, the jury convicted Smith of all seven counts of a superceding indictment. Counts I through III charged (1) conspiracy to commit arson and mail fraud in violation of 18 U.S.C. § 371, (2) arson in violation of 18 U.S.C. § 844(I), and (3) mail fraud in violation of 18 U.S.C. § 1341. Count 4 charged aiding and abetting use of fire in connection with the federal felonies ( i.e., mail fraud and conspiracy), all in violation of 18 U.S.C. § 844(h) and 2. Counts V, VI and VII each charged the defendant with obstruction of justice with respect to various cooperating witnesses, including co-conspirator Josh Booty ("Booty"), all in violation of 18 U.S.C. § 1512(b)(3).
See Superceding Indictment for Conspiracy, Arson, Mail Fraud, Use of Fire to Commit a Federal Felony and Witness Tampering filed May 16, 2002 [Rec. Doc. No. 23].
The corroborated testimony of Smith's co-conspirator Josh Booty ("Booty") and covertly recorded conversations between Smith and Booty, as well as Smith and others, established that, in January 2001, Smith asked Booty to set the Rusty Pelican Motel ablaze. In return, he was promised a new truck. Booty admittedly set the fire both on account of the promise of a new truck, and so that Smith would not prevail upon her own son, Johnathon Williams, to do so. Booty testified that he believed he could better handle the pressure than Smith's son.
Booty testified that he had many discussions with Smith planning the scheme, and that Smith's trip to Memphis on January 23, 2001, the day of the arson, was an attempt to create an alibi for herself. According to Booty, just before she left, Smith gave Booty a ring of keys to the Rusty Pelican Motel. Later that evening, Booty traveled to Grand Isle in a truck he had borrowed from a friend Anthony Turnley ("Turnley"), parked the truck, watched for awhile, then poured gasoline inside the premises, set the blaze and departed the scene of the fire to return to Baton Rouge. Booty's hair was singed in the blaze, but he managed the drive back to Baton Rouge, and returned Turnley's truck late that evening. He confessed his deeds that night to Turnley, and many of the specifics regarding the criminal conspiracy.
Evidence adduced at trial included proof of loss statements mailed by Smith to her property insurer Audubon Insurance Group, utilizing the United States Postal Service. In addition to the testimony of Booty, recorded conversations of Smith and Booty, and of Smith and Anthony Turnley, provided damning evidence of her attempt to corruptly persuade witnesses not to cooperate with the Government's investigation of the arson.
During the course of the week long trial, the Government offered various covertly recorded conversations into evidence, physical evidence of the gas cans, and also provided the jury with transcripts of those recordings, which they utilized only to follow along while the corresponding recorded conversations were being played. This Court closely monitored the jury, as they turned pages in unison, while the various recorded conversations admitted into evidence were played at various intervals during the trial. Johnathon Williams' recorded statement to the ATF, a transcript of which was contained in the jurors' notebooks, was never played. The jury was never afforded the opportunity to turn to that transcription in the tabbed binders provided to theminders, and read only the transcript of the statements which were contemporaneously played into evidence, and through the earphones provided each juror. The jurors were instructed to pick up their books at the beginning of a recording, to turn to the appropriately tabbed transcript and to read along. At the end of each tape recording, the jurors placed their books of transcripts down beside their seats as instructed at the outset, and turned their attention to evidence emanating from the witness stand. Johnathon Williams' recorded statement made to the ATF, a transcript of which was contained in the jurors' notebooks, was never played at trial, and the jury was never afforded the opportunity to turn to that statement in the notebook. Because Johnathon Williams' statement to the ATF was not admitted into evidence, it was not included in the evidence that went to the jury room.
Shortly after retiring to deliberate, the jury sent a note to the Court requesting, inter alia, Johnathon Williams' statement to the ATF. Because the recorded statement was not played or in evidence, the transcript was could not be provided to the jury, and thus was not provided to the jury. The Court responded to the jury question in writing that the statement was not an exhibit, and thus was not available for consideration as evidence in the case. Thereafter, the jury returned its verdict finding the defendant guilty on all counts.
The Jury also requested the Government's time line, a demonstrative poster exhibit, in the same note. It, too, was not provided to the jury because it was not admitted into evidence.
See Minutes of the Jury Trial dated Friday, June 14, 2002 and attachments [Rec. Doc. No. 54].
See Jury Verdict Form [attached to Rec. Doc. No. 54].
II. ANALYSIS A. Motion for Judgment of Acquittal
Smith challenges the sufficiency of the evidence supporting her convictions for conspiracy and use of fire to commit a federal felony, filing a Motion for Judgment of Acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. When the district court rules on a motion for judgment of acquittal challenging the sufficiency of the evidence, the court must determine whether the relevant evidence, viewed in a light most favorable to the Government, could be accepted by a reasonable-minded jury as adequate and sufficient to support the conclusions of the defendant's guilt beyond a reasonable doubt. Essentially, the district court must consider whether "a rational trier of fact could have found that the evidence established the essential elements of the crime beyond a reasonable doubt." That same test applies whether the evidence is direct or circumstantial; all reasonable inferences which tend to support the Government's case must be accepted. Any conflicts in the evidence must be resolved in the Government's favor. See Burns, 597 F.2d 939, 941 (5th Cir. 1979).Once the Government's evidence had passed the test of legal sufficiency, a trial judge is without authority to enter a judgment of acquittal simply because he may think that course would be most consonant with the interest of justice. United States v. Brown, 587 F.2d 187, 190-91 (5th Cir. 1979). Moreover, the jury is entitled to believe a witness unless that testimony is so incredible that it defies physical laws. United States v. Martinez, 151 F.3d 384, 389 (5th Cir. 1998) ( citing United States v. Lerma, 657 F.2d 786, 789 (5th Cir. 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279 (1982)). The evidence need not exclude every reasonable hypothesis of innocence. Id. ( citing United States v. Leed, 981 F.2d 202, 205 (5th Cir. 1993), cert. denied, 508 U.S. 975, 113 S.Ct. 2971 (1993)); see also United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997) (noting that the jury's assessment of credibility is entitled to deference). In United States v. Morgan, 117 F.3d 849 (5th Cir. 1997), the Fifth Circuit noted that "[c]redibility issues are for the finder of fact and do not undermine the sufficiency of the evidence." Id. at 854 n. 2 (internal citations omitted); see also United States v. Garcia, 242 F.3d at 596 (noting that on a motion for acquittal the role of the court "does not extend to weighing the evidence or assessing the credibility of witnesses").
Applying the tests outlined above and considering the principles relative to the deference owed the jury's assessment of credibility, the Court can only conclude that the evidence presented by the Govermnent is sufficient to support the guilty verdict on each and every charge beyond a reasonable doubt. The evidence adduced in support of the obstruction of justice counts also firmly supports conviction on the conspiracy, arson, and use of fire counts.
The defendant urges several other grounds in support of her motion for judgment of acquittal, which do not pertain to the issue of sufficiency of the evidence in the traditional sense, to wit: (1) Smith alleges a Napue violation ( i.e., the Government suborned perjurious testimony of Josh Booty); and (2) because aiding and abetting should not apply to use of fire to commit a federal felony, she was wrongly convicted of a violation of 18 U.S.C. § 844(h). To the extent that the foregoing allegations refer to the sufficiency of the evidence to justify a guilty verdict, the Court finds that they are without merit. The Court further finds that for reasons detailed hereinafter in connection with the defendant's motion for new trial, the indictment properly charged the crime of aiding and abetting in connection with the use of fire count.
In summary, the court finds that considering all of the arguments of counsel and applying the standard a district court must follow in deciding a motion for judgment of acquittal, the defendant's motion is without merit, and Smith's Rule 29(c) motion is therefore denied.
B. Motion for New Trial
In the alternative, the defendant filed a motion for new trial under Fed.R.Crim.P. 33. Rule 33 provides that "on a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." Fed.R.Crim.P. 33. However, motions for new trial "are not favored and are granted with great caution." United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977). "The remedy of a new trial is rarely used; it is warranted `only where there would be a miscarriage of justice' or `where the evidence preponderates heavily against the verdict.'" United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997) ( quoting United States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996)), cert. denied, 523 U.S. 1078, 118 S.Ct. 1525 (1998). Smith asserts that she is entitled to a new trial based on (1) the jury's exposure to the extraneous material of the Johnathon Williams' transcribed statement to the ATF; (2) Josh Booty's perjured testimony; and (3) insufficiency of the evidence on the use of fire and conspiracy counts.
1. Extrinsic Factual Matter
Generally, the district court is limited in its ability to inquire about a jury's deliberations. Federal Rule of Evidence 606(b) forbids a juror from testifying about the deliberative process. Rule 606(b) provides that:
Upon inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Fed.R.Evid. 606(b). The Fifth Circuit has noted that: "the rule separately bars juror testimony regarding at least four topics: (1) the method of arguments or the jury's deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mind set or emotions of any juror during deliberations, and (4) the testifying juror's own mental process during the deliberations. United States v. Ortiz, 942 F.2d 903, 913 (5th Cir.), cert. denied, 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992); see also United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995); Llewellyn v. Stynchcombe, 609 F.2d 194, 196 (5th Cir. 1980) (noting that inquiries that seek to probe the mental processes of jurors are impermissible); United States v. Howard, 506 F.2d 865, 868 (5th Cir. 1975)("Well-established case law forbids the eliciting of juror testimony regarding the jury's mental processes, or the influences that any particular evidence had upon the jury's conclusion.").
In any trial there is initially the presumption of jury impartiality. United States v. O'Keefe, 722 F.2d 1175, 1179 (5th Cir. 1983); accord United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). This presumption, however, may be attacked and prejudice shown by evidence that some extrinsic factual matter tainted the jury's deliberations. See United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995) ( citing O'Keefe, 722 F.2d at 1179)).
When a "colorable showing of extrinsic influence appears, a court must investigate the asserted impropriety." Ruggiero, 56 F.3d at 652 ( quoting Winkle, 587 F.2d at 714)); accord United States v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993), cert. denied, 511 U.S. 1023, 114 S.Ct. 1410, 128 L.Ed.2d 82 (1994). When extrinsic evidence is introduced to the jury room, unless there is no reasonable possibility that the jury's verdict was influenced by the material that improperly came before it, a defendant is entitled to a new trial. Ruggiero, 56 F.3d at 652; Sanchez-Sotelo, 8 F.3d at 212. This rule creates a rebuttable presumption of prejudice to the defendant, and the government has the burden of proving the harmlessness of the breach. Ruggiero, 56 F.3d at 652 ( citing United States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990)).
In determining whether the government has successfully rebutted the presumption of prejudice and shown that there is no reasonable possibility that the jury was improperly influenced, the district court is to examine "the content of the extrinsic material, the manner in which it came to the jury's attention, and the weight of the evidence against the defendant." Ruggiero, 56 F.3d at 652-53 ( quoting Luffred, 911 F.2d at 1014)).
The Government contends, and the undersigned agrees, that the Court was and is under no affirmative duty to conduct a factual inquiry regarding any possibility that the jury was exposed to Williams' statement to the ATF. The statement was neither admitted as evidence nor used as an exhibit in the case. The Court sent clear instructions to this effect, the statement at issue never entered the jury room, and thus could not have possibly been considered during deliberations. Smith has made no showing that the jury was likely misled or in any way influenced by Johnathon Williams' statement to the ATF. Whereas the jury may have known, through testimony, of the existence of a statement made by Johnathan Williams to the ATF, the Court took appropriate precautions and vigilantly ensured that no extraneous statements and matters not admitted into evidence were reviewed or previewed by the jury. Moreover, it is undisputed that the statement in question did not go to the jury room.
Assuming without deciding that the defendant made a colorable claim triggering the Court's duty to inquire, and in so doing the Court discovered that one or more of the jurors had perused the Williams' statement to the ATF, the Court finds alternatively that the defendant has failed to make the requisite showing of prejudice. Viewed in a light most favorable to the defendant, Williams' statement to the ATF would tend to exonerate Smith. Williams essentially characterizes his mother's statements to himself and to Josh as not serious and merely joking. Cast in its worst light the statement is inconclusive and non-committal regarding Smith's part in the arson. Suffice it to say, there is no reasonable possibility that the jury's verdict was influenced by this material, assuming the sum and substance of Williams' statement to the ATF improperly came to the attention of one or more of the jurors.
Moreover, the defense surely could have called Williams as a witness and introduced his statement to the ATF, if it chose to do so.
2. Perjurious Testimony
The Supreme Court has held that the presentation of false evidence at trial, as well as the admission of false evidence at trial that, although not solicited, is not corrected, violates a criminal defendant's due process rights, if the reliability of a given witness may be determinative of guilt or innocence. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959); Mooney v. Holohan, 294 U.S. 103 (1935). This is true whether nondisclosure was intentional or through negligence. A Napue violation may occur not only when the prosecuting attorney knows that a witness' testimony is false, but also when another government attorney knows of the false testimony and does nothing to correct it. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766 (1972).
False testimony for these purposes includes testimony that affects only the credibility of a witness. Napue, 79 S.Ct. at 1177; United States v. O'Keefe, 128 F.3d 885, 893 (5th Cir. 1997). Granting a new trial on the basis of a Napue violation is only proper if (1) the statements in question are shown to be actually false; (2) the prosecution knew that they were false; and (3) the statements were material. O'Keefe, 128 F.3d at 893-894.
As to the materiality standard, in Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566 (1995), the Supreme Court defined materiality in terms of a "reasonable probability" of a different outcome. Kyles, 115 S.Ct. at 1566. Such reasonable probability results when nondisclosure places the case in a different light so as to undermine confidence in the verdict. Id.; see also O'Keefe, 128 F.3d at 894. The relevant inquiry examines the challenged evidence collectively, not on an item by item basis. Suffice it say, the conclusion that an error did not contribute to the verdict is tantamount to a finding that the error is unimportant in relation to everything else that the jury considered on the issue in question as revealed by the record. O'Keefe, 128 F.3d at 894. The Fifth Circuit explained:
It is axiomatic that not every lie is material. Along with other circuits, we have limited material lies to those that occur as a part of the prosecution's case. See Hudson v. Blackburn, 601 F.2d 785, 789 (5th Cir. 1979); see also United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991) (applying the same rule). The prosecution has a duty only to "refrain from knowingly presenting perjured testimony and from knowingly failing to disclose `that testimony used to convict a defendant was false.'" Aichele, 941 F.2d at 766.O'Keefe, 128 F.3d at 894. Thus, when the defendant elicits the alleged perjury on cross-examination, which is what occurred in the case at bar, no material falsehood has occurred because the Government has not itself knowingly presented false testimony. See id. Stated another way, materiality inheres when a falsehood results in "a corruption of the truth-seeking function of the trial process." United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397 (1976); see also O'Keefe, 128 F.3d at 894 ( citing United States v. Meinster, 619 F.2d 1041, 1042 (4th Cir. 1980) for the proposition that the purpose underpinning the Supreme Court's decisions in Napue and Giglio, supra, is to ensure that the jury is not misled by any falsehoods).
As to Smith's Napue claims, the record is uncontroverted that there was no such violation, and thus the Court so holds that no false or misleading testimony was knowingly introduced by the prosecution. The Court also finds that Booty's perjury regarding a collateral (and apparently immaterial) matter was almost immediately detected by the Government, which recalled Booty and fully exposed the extent of his perjured testimony on cross-examination, i.e., denying that he ever stole any funds belonging to Beth Smith, inter alia. Morever, given both defense counsel's knowledge of the existence of a plea bargain agreement and his repeated rigorous efforts to impeach the credibility of the witness, there is no reasonable probability that the perjured testimony could have unfairly affected the jury's verdicts in this case. The multiple means adeptly utilized to impeach the strength of Booty's testimony identifying Smith as the mastermind of the conspiracy who procured his services as the "the torch," were to no avail. Booty's testimony was corroborated in a number of particulars by other cooperating witnesses and by the covertly recorded retrospective conversations of Smith herself ( i.e., telling Booty that he should have pitched the gas cans in the bayou on his way back from Grand Isle that night). In light of the damning tapes (Smith's own words), even the most adept use of the falsehoods, once they emerged and became apparent, did little to sway the powerful effect of the recorded conversations of Smith which the jury listened intently to while reading along with the transcriptions provided by the Government to every audible phrase.
With regard to any suggestion that the Government sponsored perjured testimony of Josh Booty, the record plainly diffuses any such argument. The perjured testimony regarding funds stolen from Beth Smith was responsive to cross-examination by defense counsel. Upon discovering the perjury regarding this extrinsic matter, the Government immediately recalled Booty to correct the record, whereupon Booty confessed to the jury the perjured statements made on cross-examination. The Government exposed the jury to all of the facts regarding the perjured statement, as well as the universe of consequences that could possibly befall Booty on account of his perjury regarding even an immaterial matter. Thereafter, defense counsel was again given total leeway and ably explored the theory of the defense, i.e., that Booty also lied regarding Smith's complicity. Impeachment was also a centerpiece of the defense's closing argument.
There is little question but that the disclosure of the perjured testimony to the defense and the jury prevented those falsehoods from corroding the jury's deliberations; rather such disclosure allowed the jury to fulfill its fact-finding function with a full deck, thus maintaining the integrity of the proceedings such that justice would be served. In any event, Booty's falsehoods were not material as a matter of law because the falsehoods were fully explored before the jury.
3. Sufficiency of the Evidence with respect to the Conspiracy Conviction
This is a case of both direct and circumstantial evidence. It is well-settled that a defendant seeking reversal on the basis insufficient evidence swims upstream, and this case is no exception. If a reasonable jury could conclude that the Government proved each element of the crime charged beyond a reasonable doubt, a reviewing court must affirm the judgment of conviction.
See United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).
Id.
To prove conspiracy in violation of 18 U.S.C. § 371, the Government had to prove three elements beyond a reasonable doubt, to wit: (1) that two or more people together agreed to pursue an unlawful objective; (2) that the defendant knowingly agreed to join the conspiracy; and (3) that one of the members of the conspiracy performed an overt act in furtherance of the conspiracy. The Government need not rely only on direct evidence of a conspiracy; each element may be proven by circumstantial evidence. Once a conspiracy has been established, the Government need only present slight evidence linking the defendant to the conspiracy. However, mere association with participants in criminal activity, without more, cannot serve as a basis for a conviction.
Mulderig, 120 F.3d at 546 ( citing United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994)).
See United States v. Leonard, 61 F.3d 1181, 1187 (5th Cir. 1995).
United States v. Sultan, 115 F.3d 321, 328 (5th Cir. 1997).
The evidence adduced in the case at bar, however, paints a vastly different picture than merely showing that Smith associated with a person engaged in a criminal activity. The defendant was the owner of the Rusty Pelican Motel, which property Smith's co-conspirator Booty admittedly set afire at her direction, for the purpose of filing a false proof of loss statement with the property insurer so as to obtain the insurance proceeds. Indeed, the evidence presented to the jury showed Smith's active participation in both the conspiracy, i.e., acts directly implicating her complicity in the scheme. The Government gives an accurate synopsis of evidence presented against Smith, including the corroborated testimony of Josh Booty, her co-coconspirator, Smith's financial motive for procuring the arson of the Rusty Pelican Motel, Smith's own statements evidencing her efforts to cover up the arson and obstruct justice, manufacturing evidence, lying under oath, and instituting civil proceedings against her property insurer for the insurance proceeds, once the deed was in fact accomplished. Smith took no affirmative actions which were inconsistent with the charged conspiracy. To the contrary, once the Rusty Pelican was burned, Smith took requisite steps necessary to bring her plan to fruition, and the coup de grace was mail fraud following the arson which damaged her commercial property in Grand Isle.
4. Sufficiency of the Evidence as to the Use of Fire Conviction
In 1982, Congress amended the Anti-Arson Act with § 844(h) to proscribe the use of fire in addition to explosives. Section 844(h) provides: "[w]hoever uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States . . ., shall be subject to a sentence in addition to the sentence for the predicate offense." 18 U.S.C. § 844(h) (emphasis added). In 1988, Congress changed the wording of § 844(h) to further make the intent clear. Section 844(h) now states "[w]hoever uses fire or an explosive 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 ten years. Id. (emphasis added). Congress also added that the term of imprisonment imposed under § 844(h) "shall not run concurrently with any other term of imprisonment including that imposed for the felony in which the explosive was used or carried." Id. Mindful of the thrust and what appears to be the clear import of that legislation, this Court considers the defendant's argument. At the outset the Court notes that with respect to the § 844(h) "use of fire" conviction, Smith's argument is more of the ilk of "multiplicity" in the indictment, than it is of the traditional insufficiency of the evidence genre.
It is noteworthy that in the case at bar, the conspiracy of which Smith was charged and convicted contemplated both the crimes of arson and mail fraud. Additionally, the "use of fire" count was predicated on either or both (1) the substantive count of mail fraud, and (2) the conspiracy which contemplated both arson and mail fraud. The defendant was adjudicated guilty on all counts. It is undisputed that Booty used fire. It cannot be seriously disputed that the pairing of the substantive federal felony crime of mail fraud (an offense of conviction) with the aiding and abetting use of fire element of § 844(h) survives double jeopardy analysis upon a comparison of the elements of both crimes ( i.e., "use of fire" to commit a federal felony § 844(h) and mail fraud § 1341). The Court discerns no impropriety under the particular facts of this case.
To secure a conviction under section 844(h), the Government must prove that the defendant (1) used fire (2) to commit a "felony which may be prosecuted in a court of the United States." 18 U.S.C. § 844(h). In order to find the evidence sufficient for a conviction under section 844(h), the court must be satisfied with the sufficiency of the evidence of underlying the felony, or in this case, felonies (mail fraud, conspiracy, or both).
The "same elements" test of Blockburger is utilized as the interpretive tool when the statute is ambiguous. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432 (1980); United States v. Corona, 108 F.3d 565, 572 (5th Cir. 1997). To be sure, the crimes of mail fraud § 1341, conspiracy to commit arson and mail fraud § 371, and "use of fire to commit a federal felony" §§ 844(h) and 2, each charge distinctly different crimes, not just in a technical sense. The language of the "use of fire" statute requires enhancement when fire is used in the commission of a crime whose felonious nature is not dependent on the actual use of fire. In neither the crime of conspiracy to commit arson and mail fraud (§ 371) nor mail fraud (§ 1341) does the "use of fire" cause the activity to be considered felonious.
See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180 (1932)("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.").
To establish the essential elements of mail fraud pursuant to Title 18, United States Code § 1341, the government must show that the defendant (1) used a scheme to defraud, (2) which involved a use of the mails, (3) and that the mails were used for the purpose of executing the scheme. See United States v. Pazos, 24 F.3d 660, 65 (5th Cir. 1994).
The sufficiency of evidence supporting Smith's conspiracy conviction was discussed in some detail above, and thus need not be revisited. The focus then is on the predicate felony mail fraud ( i.e., the other felony paired with the "use of fire"). The facts relevant to whether Smith committed mail fraud are as follows. First, she filed a false proof of loss statement with her insurance company. In so doing, Smith suggested to her insurance company the possibility of suspects other than Booty at a time when she well-knew that it was Booty who had in fact torched the motel premises. Then, she lied under oath, manufactured evidence hoping to implicate others, and prosecuted the civil suit against her insurance company for failing to pay her property loss claim, and for failing to pay it pronto.
From these facts, a reasonable jury could have and, in fact, did rationally conclude that Smith used the United States mail to execute a scheme to defraud Audubon to collect insurance proceeds. The evidence adduced at trial was clearly sufficient to support her conviction for mail fraud. See United States v. Ruiz, 986 F.2d 905, 911 (5th Cir. 1993). Statutory "aiding and abetting" law ( 18 U.S.C. § 2) provides the predicate to satisfy the "use of fire" element of Count 4 ( i.e., use of fire to commit federal felony of mail fraud).
Because these offenses each require proof of an element not found in the other, the offenses are separate and not multiplicitous, even when the counts involve the same use of fire. See United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994); United States v. Fiore, 821 F.2d 127, 130-131 (2nd Cir. 1987). In United States v. Riggio, 70 F.3d 336, 338 (5th Cir. 1995), the Fifth Circuit addressed the question of whether "conspiracy to commit arson" and the "use of fire in the commission of a felony" are duplicative, when the "use of fire" charge is based upon the conspiracy to commit arson. Answering that question in the negative, the Fifth Circuit explained that:
See also United States v. Nguyen, 117 F.3d 796, 798 n. 1 (5th Cir. 1997) (noting that the court in Corona, supra, never specifically addressed whether the language of § 844(h) indicates an explicitly stated in intent by Congress to impose the offense cumulatively with other offenses, and in any event, distinguishing Nguyen's convictions which arose under three separate statutes, and did not involve multiple subsections of the same statute like Corona).
We conclude that conspiracy to commit arson may serve as the predicate felony for a use of fire charge. The conspiracy statute is aimed at punishing persons for acting in concert to commit an offense. Arson and the use of fire statutes are aimed at punishing those who make criminal use of fire. Conspiracy to commit arson does not require that the individual defendant actually use fire. The additional element of using fire must be proved for a conviction of the use of fire during the commission of a felony charge under 18 U.S.C. § 844(h)(1). Conspiracy to commit arson and the use of fire in the commission of a felony are not duplicative.
It is clear that Congress intended that the penalties from these charges would be cumulative. 18 U.S.C. § 844(h)(1) provides that anyone convicted of using fire in the commission of a felony shall receive an additional sentence of between five and fifteen years. The statute expressly provides that the sentence is not to run concurrent with any other sentence and cannot be suspended.Riggio, 70 F.3d at 338-339.
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 and one or more of the conspirators must perform an act to further the object of the conspiracy. 18 U.S.C. § 371 and 844(i). The actual use of fire is not a requirement of the statute.
Smith admittedly does not now argue multiple punishment for the same conduct. Smith instead argues multiplicity in the indictment. "Multiplicity" is charging a single offense in more than one count in an indictment. See United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994). Addressing the issue of multiplicity in Nguyen, supra, the Fifth Circuit opined:
The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense. The test for determining whether the same act or transaction constitutes two offenses or only one is whether the conviction under each statutory provision requires proof of an additional fact which the other does not. Moreover, "[w]hether a continuous transaction results in the commission of but a single offense or separate offenses . . . is determined by whether separate and distinct prohibited acts, made punishable by law, have been committed." An offense is separate and distinct when conviction under one count requires proof of an additional fact that the other count does not require.Nguyen, 28 F.3d at 482 (citations and internal quotation marks omitted).
It is equally clear that the law of aiding and abetting pursuant to 18 U.S.C. § 2 can be paired with any federal felony and does not except "use of fire" to commit a federal felony ( i.e., 18 U.S.C. § 844(h)). To be sure, the evidence showed Smith personally perpetrated every element of the substantive offense of mail fraud (§ 1341).
Liability as principal pursuant to 18 U.S.C. § 2 may follow proof beyond a reasonable doubt that: (1) the offense (whether use of fire or some other felony) was committed by some person; (2) that the defendant "associated herself in some fashion with the criminal venture;" (3) that the defendant purposefully participated in the venture; and (4) sought by action to make that venture successful. See United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).
"To associate with a criminal venture" simply means that the defendant shared the criminal intent of the principal. This element cannot be established if the defendant had no knowledge of the criminal venture. In the case at bar, there was a plethora of evidence that Smith masterminded this conspiracy which involved the elements of arson and mail fraud. Smith's plan was to collect the property insurance proceeds, following the arson which damaged or destroyed the Rusty Pelican Motel in Grand Isle. Booty testified that Smith gave him the keys to the Rusty Pelican Motel on the morning of the fire, just before she left Baton Rouge for Memphis. His testimony regarding his custody of the ring of keys was corroborated by other cooperating witnesses' testimony.
"To participate in a criminal venture" means that the defendant engaged in some affirmative conduct designed to aid the venture assisted in the commission of the crime.
The First Circuit case of United States v. Ruiz, 105 F.3d 1492 (1st Cir. 1997) involved the identical mix of crimes presented to this Court. The two Ruiz brothers were convicted of various crimes arising out of a fire that destroyed their store in Massachusetts. After a ten day trial involving only circumstantial evidence, the jury convicted both of the brothers of arson ( 18 U.S.C. § 844(i)), mail fraud ( 18 U.S.C. § 1341), conspiracy to commit arson and mail fraud ( 18 U.S.C. § 371), and use of fire to commit a federal felony ( 18 U.S.C. § 844(h)(1)). The Government sought to prove that Virgilio Ruiz actually set the fire, and that his brother Santo either aided and abetted ( i.e., 18 U.S.C. § 2), or could reasonably foresee that Virgilio would set the fire in furtherance of the unlawful conspiracy. Id. at 1499 ( citing Pinkerton, 66 S.Ct. at 1184)). The Ruiz court observed that the evidence more than adequately established that someone deliberately torched the brothers' store with the aid of an accelerant. Id. Specifically addressing the "use of fire" conviction of both Ruiz brothers, the court observed that plainly the defendants "used" fire to commit mail fraud within the meaning of § 844(h)(1) ( i.e., the fire constituted "the means" by which the defendants attempted to create the appearance of a legitimate loss of insured items). Considering that the defendants either employed, deployed, or availed themselves of fire to effect their scheme, the Ruiz court saw "no basis to overturn the defendants' convictions and attendant penalties under 18 U.S.C. § 844(h)(1)." Id. at 1504.
See Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184 (1946) (To establish Pinkerton liability for a substantive count, the Government need establish only the defendant's knowledge and voluntary participation in the agreement, and an overt act in furtherance of it.).
The Court concludes that the evidence is replete with more than sufficient requisite affirmative conduct on Smith's own part to support the "use of fire" § 844(h) conviction. It was not necessary that the Government's universe of proof include that Smith personally appeared on her property, personally doused it with gasoline, and lit the match. Just as mere presence at the scene of the crime is not sufficient by itself to support aiding and abetting liability, mere absence from the scene does not, by itself, negate such liability. Indeed, the rationale and policy underpinning "aiding and abetting" liability is that mere absence from the scene of a crime should not serve as a shield, protecting that criminal element of society that may procure the services of others to commit criminal acts as surely as they had accomplished the conduct by their own hand. From the testimony of Josh Booty and the covertly recorded conversations of Smith, inter alia, a jury could have reasonably concluded that Smith was guilty of using fire to commit the federal felony of mail fraud.
See e.g. United States v. Williams, 341 U.S. 58, 64 n. 4, 71 S.Ct. 595, 599 (1951); United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993).
See e.g. Garcia, 242 F.3d 593, 597 (5th Cir. 2001)( citing Collins v. United States, 65 F.2d 545, 547 (5th Cir. 1933) and rejecting the defendant's argument that his previous act of giving the key to his property cannot be considered as evidence here because such only aided and abetted a general scheme of possession of marijuana and not the specific offense at issue).
To the extent that Smith argues that multiplicity in the indictment inheres because the "use of fire" count required the jury to find nothing beyond the combined elements of the conspiracy, arson and mail fraud counts, her claim is without merit. The instant case presents a stronger case for separate charges than was Blockburger since proof required under each count involves an additional element that the other counts do not. See United States v. Zendeli, 180 F.3d 879, 882 (7th Cir. 1999) (also involving use of fire to commit mail fraud). Arson (Count 2) requires only proof of arson by someone. The conspiracy to commit arson and mail fraud (Count 1) was complete at the time the agreement was made. Mail fraud (Count 3) required proof of use of the United States mails to defraud the insurance company. "Use of fire" (Count 4) required that the Government prove in addition to such use that the United States mails were used to try to defraud the insurance company.
It is noteworthy that in the Zendeli case, the defendant hired a public adjustor, who used the United States mail to send the defendant's proof of loss claim to his insurer. The Seventh Circuit affirmed the jury's verdict against Zendeli on all four counts ( i.e., arson, conspiracy, mail fraud and "use of fire"). Zendeli, 180 F.3d at 882; see also United States v. Gardener, 211 F.3d 1049, 1056-57 (7th Cir. 2000) (affirming "use of fire" conviction utilizing the mail fraud as the predicate felony); United States v. Corona, 108 F.3d 565, 572 (5th Cir. 1997); United States v. Nguyen, 28 F.3d 477, 485 (5th Cir. 1994); cf. United States v. Fiore, 821 F.2d 127, 130 (2nd 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.").
Smith's argument in the present case is essentially that the result of the statutory interplay appears excessive. "However, the remedy for any such dissatisfaction lies with Congress and not with this Court as only Congress may amend the statute." United States v. Zendeli, 180 F.3d 879, 885 (7th Cir. 1999) (acknowledging that "the defendant's sentence was out of whack," but nevertheless reversing the trial court's ruling which imposed a 10-year instead of a 17-year sentence). Section 844(h) expressly provides that an individual who uses fire to commit " any felony . . . shall in addition to the punishment provided by such felony" be sentenced to an additional term imposed for the underlying felony.
The Court here observes that the issue of multiplicity in the sentencing context has yet to surface in this case, and that is because the defendant's sentencing hearing is scheduled for October 2, 2002. Should the issue of multiplicity ( i.e., double-jeopardy) arise in the sentencing context as a result of the statutory interplay between the counts of conviction and the United States Sentencing Guidelines' grouping rules, the Fifth Circuit instructs that the Government, as opposed to the defendant, should be allowed the opportunity to elect which count to dismiss in order to eradicate any such multiplicity and bring the problematic sentences into compliance. See United States v. Corona, 108 F.3d 565, 574 (5th Cir. 1997). In Corona, the Fifth Circuit observed:
[T]he government may choose to dismiss any of the three counts. Under Riggio, multiple punishments under § 844(h)(1) and § 371 can stand, even if the conspiracy is the predicate for the § 844(h)(1) count. Multiple punishments under § 844(h)(1) and § 371 can stand because both the conspiracy and its predicate offense require an element that the other does not. As far as the double-jeopardy analysis is concerned, the government can even choose to pursue multiple punishments under § 844(i) and § 844(h)(1). Unlike the charges in Chaney, the predicate offense for the § 844(h)(1) count is not arson as such, but conspiracy to commit arson. Thus, § 844(h)(1) requires — and the jury found — an element not contained in § 844(i): an agreement.Corona, 108 F.3d at 547-75 (citations omitted).
For all of the above and foregoing reasons,
IT IS ORDERED that defendant Elizabeth Boyett Smith's Motion for Judgment of Acquittal as supplemented is DENIED.
IT IS FURTHER ORDERED that the defendant Elizabeth Boyett Smith's Motion for New Trial is DENIED.