IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30238
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JOSEPH CORONA, III; LINDSEY McDONALD, Defendants-Appellants.
Appeals from the United States District Court for the Eastern District of Louisiana
March 12, 1997
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
These federal arson convictions raise primarily Commerce
Clause and double jeopardy concerns. We conclude that the
convictions are within Congress’s commerce power. But we find that
imposing separate sentences for arson, conspiracy to commit arson,
and “using fire to commit conspiracy to commit arson” violated the
Double Jeopardy Clause. We vacate the sentences and remand for re-
sentencing.
I.
In February of 1992, Joseph Corona, III, bought a two-story
residential structure at 1637 Polymnia Street in New Orleans for
$29,000. He insured the house for $45,000, assigned title to the
property to his mother, and made monthly payments of around $450 on her behalf to the previous owner. His plan was to renovate the
building and turn it into a bed-and-breakfast or a youth hostel.
But that would require special permission from the city, which
Corona was having trouble obtaining. Along with two acquaintances,
V.J. Stock and Lindsey McDonald, Corona undertook sporadic
renovations at a total cost of between $15,000 and $20,000.
By the beginning of 1995, Corona turned sour on the project.
Twice he offered to sell the building to James Hudson, once in
exchange for a taxi number worth about $25,000. Two days before
the fire, when Hudson declined the second offer, Corona told
Hudson: “I guess I’ll do what I got to do.” Wayne Conino, a former
roommate, testified that Corona announced that he wanted “out of
the house.” Corona asked his father-in-law how to set a fire
without being caught. Toward the end of 1994, Corona also
expressed his economic hardship to his mother-in-law, who testified
that “for quite awhile, every once in awhile, he would mention that
he was going to have to burn the house.”
On February 6, 1995, he did just that. He picked up McDonald
and Stock in a New Orleans suburb and dropped them off a few blocks
from the house. Suzanne Guidroz, a United Cab telephone operator,
was visiting with her boyfriend at the nearby United Cab
dispatching station and could see the house through a window. She
testified that Stock and McDonald made many trips up and down an
exterior staircase. At one point, she watched McDonald use an
outdoor pay phone just outside of the United Cab building. When
the two men carried a mattress down the stairs and deposited it on
2 the first floor, she brought the unusual behavior to the attention
of a nearby worker. Less than a minute later, the house virtually
exploded. Guidroz called 911, reported the fire, and explained
that she thought that two men were still in the building. But
apparently McDonald and Stock had already fled the scene.
The flames quickly spread to the “shack,” a warehouse at 1722
Carondelet Street owned by Mario Greco, a United Cab employee.
Greco stored taxis in the building and rented part of it out to
United Cab for $600 per month. The shack contained an employee
break room with vending machines, a television, and tables and
chairs where employees played cards. United Cab furnished the
building in part because workers needed a safe place to relax in a
relatively dangerous neighborhood. Only a few feet separated
Corona’s house from the shack, which was in flames even before
firefighters arrived. More than a dozen people, including a
dispatcher and several cab drivers, had to be evacuated from the
warehouse in the seven-alarm fire. The shack’s roof collapsed, and
one of the cabs stored there was destroyed.
McDonald and Stock returned to the house around 5:00 A.M.,
while investigators were sifting through the remains of the house
and the shack. Guidroz was still at the scene. She immediately
pointed the men out to an investigator. McDonald admitted at trial
that he lied to law enforcement officers when he told them that he
knew nothing about the fire. Later that morning, Corona gave
McDonald a ride back to the suburbs and provided him with a place
to sleep. McDonald also admitted at trial that he lied after his
3 arrest when he told an investigator that Stock had accidentally
caught a blanket on fire, was unable to put it out, and left the
house to meet Corona and McDonald in the French Quarter.
A grand jury indicted each of the three men on three counts:
conspiracy to commit arson (18 U.S.C. § 371), maliciously burning
buildings used in or affecting interstate commerce (18 U.S.C. §
844(i)), and, as the indictment put it, “knowingly us[ing] fire to
commit conspiracy to commit arson as alleged in Count 1” (18 U.S.C.
§ 844(h)(1)). Stock became a fugitive and was not arrested until
September of 1996. Corona and McDonald stood trial.
Much of the government’s case consisted of the testimony of
experts who explained that the fire fit the profile of arson. An
ATF agent described how investigators discovered that the fire
began in three separate places. A burned mattress was on the
ground floor. A city investigator told the jury that he had taken
a trained and certified dog into the burned structure and that the
dog had detected traces of accelerants in the three places where
the fire began. An expert using a gas chromatograph discovered
gasoline on a blanket in the house. Another ATF agent found
burning patterns that suggested that someone had poured
accelerants. According to these experts, the fact that the fire’s
origins were at the bottom of the structure and the fact that the
fire spread so quickly indicated that it was intentional.
The jury unanimously convicted Corona and McDonald on all
three counts after four days of trial. It found “that the
buildings were being used in interstate commerce or in an activity
4 substantially affecting interstate commerce.” The district court
denied their motion for dismissal on the grounds that the two
buildings did not have the requisite connections to interstate
commerce. 934 F. Supp. 740 (E.D. La. 1996). It gave oral reasons
for denying their motion to dismiss on double jeopardy grounds.
Corona received 41-month concurrent sentences on counts one and two
and an additional mandatory 60-month sentence to run consecutively
on count three. McDonald received concurrent 33-month sentences on
counts one and two and a mandatory consecutive 60-month sentence on
count three. Both defendants have appealed.
II.
Corona and McDonald make an as-applied challenge to their
convictions on all three counts by arguing that they exceed
Congress’s commerce power. According to the defendants, neither of
the burned buildings was used in or had a substantial effect on
interstate commerce. Because the fire spread to the United Cab
warehouse, we do not find this argument persuasive.
In rejecting the defendants’ Commerce Clause argument, the
district court held that the law permits a jury to find that the
government proved that the house on Polymnia Street had the
required nexus to interstate commerce. It relied primarily on
Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455, 85 L. Ed.
2d 829 (1985), and United States v. Patterson, 792 F.2d 531 (5th
Cir.), cert. denied, 479 U.S. 865, 107 S. Ct. 220, 93 L. Ed. 2d 149
(1986), for the proposition that the commerce power extends to the
destruction of rental property — including property being prepared
5 for rental — whether or not the rental activity is exclusively
intrastate.
We are not confident that Congress possesses such broad
powers. The defendant in Russell attempted to burn down a two-unit
apartment building and was convicted under § 844(i). The Court
upheld the conviction because the rental of real estate is part of
commerce. It did not require a showing of a specific connection to
interstate commerce because “Congress intended to exercise its full
power to protect ‘business property’” and can protect property
involved in exclusively intrastate business as part of its
regulation of the interstate rental market. Russell, 471 U.S. at
860-61, 105 S. Ct. at 2456-57. In contrast to the property in
Russell, the Polymnia Street house was neither rented nor on the
rental market. It is not clear that Corona ever could have
realized his aspirations of creating a youth hostel or a block of
apartments. The property was hardly different from a private home,
which the Russell Court cautioned may not have been within
Congress’s intent in passing § 844(i). Id. at 862, 105 S. Ct. at
2457.
Patterson involved a fire that destroyed twelve units at a 78-
unit condominium complex that was under construction. We upheld
the conviction under § 844(i) in spite of the fact that none of the
units were yet for sale. But we noted that the interstate commerce
requirement was satisfied because the builder’s “activity was a
significant business venture involving out-of-state partners and
financing by an out-of-state lender.” Patterson, 792 F.2d at 536.
6 Again, the Polymnia Street property bears little resemblance to the
partially-completed condominium complex in Patterson. There has
been no mention of out-of-state financiers or prospective tenants.
The sheer size of the Patterson project made its likely effect on
interstate commerce obvious both for investors and for potential
purchasers. The commercial dimensions of Corona’s project were
modest at best, and the interstate component of his commercial
plans was trifling.
Furthermore, the analysis in Patterson lost some of its
vitality when the Supreme Court announced that “the proper test
requires an analysis of whether the regulated activity
‘substantially affects’ interstate commerce.” United States v.
Lopez, ___ U.S. ___, ___, 115 S. Ct. 1624, 1630 (1995). In Lopez,
the Court struck down the Gun-Free School Zones Act, 18 U.S.C. §
922(q), which criminalized the possession of a firearm within a
school zone. By inserting the word “substantially” in its
formulation of the “effects test,” the Court reminded us that
federal courts have a duty to scrutinize the Congress’s commerce
power and dispelled the notion that de minimis connections to
interstate commerce can legitimate federal legislative powers. See
United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995)
(explaining that Lopez has heightened § 844(i)’s jurisdictional
requirement to a “‘substantial’ effect on or connection to
interstate commerce”). The Lopez Court also emphasized that
federal criminal laws can easily intrude on the “traditional
concern[s] of the States.” ___ U.S. at ___, 115 S. Ct. at 1640
7 (Kennedy, J., concurring). Like the statute in Lopez, § 844(i)
imposes a criminal penalty in an area that has been the domain of
state jurisprudence throughout our history. The consequences of
arson are typically local, and we have traditionally left it to the
states to determine the appropriate penalty, just as we have
traditionally left educational policy to localities, which “may
perform their role as laboratories for experimentation to devise
various solutions where the best solution is far from clear.” Id.
at ___, 115 S. Ct. at 1641 (Kennedy, J., concurring). The
jurisdictional element in § 844(i) protects it from the facial
challenge at issue in Lopez. See United States v. DiSanto, 86 F.3d
1238, 1245 (1st Cir. 1996) (“[W]hatever López’ reach, it certainly
did not purport to overrule cases upholding application of the
Commerce Clause power to wholly intrastate activities satisfying
the requisite nexus to interstate commerce.”), petition for cert.
filed, 65 U.S.L.W. 3531 (U.S. Nov. 12, 1996). Nevertheless, the
limits of the commerce power are sharper in the wake of Lopez than
they were when we decided Patterson. Indeed, Lopez calls into
question a family of cases interpreting § 844(i).1
1 See, e.g., United States v. Utter, 97 F.3d 509, 516 (11th Cir. 1996) (finding federal jurisdiction under § 844(i) because “the restaurant served alcohol and used natural gas, both of which originated outside of Florida”); United States v. Ryan, 41 F.3d 361, 365 (8th Cir. 1994) (en banc) (“The short duration of the closure, receipt of utility services for much of the month and continued receipt of natural gas, Ryan’s continued presence on his father’s payroll as manager of the Fitness Center . . . , and the [out-of-state] lease arrangement itself all lead to the conclusion that the Fitness Center was an instrumentality of interstate commerce for purposes of satisfying the requirements of section 844(i).”), cert. denied, ___ U.S. ___, 115 S. Ct. 1793, 131 L. Ed. 2d 721 (1995); United States v. Ramey, 24 F.3d 602, 607 (4th Cir.
8 The Seventh Circuit has recently reaffirmed the view that the
Commerce Clause allows application of § 844(i) to the burning of
private homes connected to natural gas lines because “the sum of
many small effects can be a large effect.” United States v. Hicks,
___ F.3d ___, ___, 1997 WL 39856, at *2 (7th Cir. 1997). Without
challenging the general thrust of the aggregation principle, we
doubt that an effect as small as the cessation of natural gas
service to a single household satisfies the constitutional
requirement. Taking the “effects test” to its logical extreme
1994) (holding that the destruction of a mobile home affected interstate commerce because it received electricity from an interstate power grid), cert. denied, ___ U.S. ___, 115 S. Ct. 1838, 131 L. Ed. 2d 757 (1995); United States v. Shively, 927 F.2d 804, 808 (5th Cir.) (allowing a § 844(i) conviction where there is “[e]ven a de minimis effect on interstate commerce”), cert. denied, 501 U.S. 1209, 111 S. Ct. 2806, 115 L. Ed. 2d 979 (1991); United States v. Stillwell, 900 F.2d 1104, 1111-12 (7th Cir.) (holding that § 844(i) covered the destruction of a private residence because “the aggregate class of . . . all arson of private homes supplied with interstate natural gas[] has more than a de minimis effect on interstate commerce”), cert. denied, 498 U.S. 838, 111 S. Ct. 111, 112 L. Ed. 2d 81 (1990); United States v. Andrini, 685 F.2d 1094, 1096 (9th Cir. 1982) (“[T]he construction of a commercial office building using out-of-state materials is a commercial activity affecting interstate commerce for the purposes of § 844(i).”). Cf. United States v. McMasters, 90 F.3d 1394, 1399 (8th Cir. 1996) (explaining that Lopez did not overrule sub silentio Russell’s principle that “renting a house is the sort of economic activity that might, through repetition elsewhere, substantially affect interstate commerce”), cert. denied, ___ U.S. ___, 117 S. Ct. 718, 136 L. Ed. 2d 636; ___ U.S. ___, 117 S. Ct. 783, ___ L. Ed. 2d ___ (1997); United States v. Martin, 63 F.3d 1422, 1427 (7th Cir. 1995) (holding that even after Lopez, the Commerce Clause permits a conviction under § 844(i) where the burned building was “a rental property still available for rent but otherwise closed to interstate commerce”); Reedy v. United States, 934 F. Supp. 184, 187 (W.D. Va. 1996) (“Reedy’s placement of the restaurant building, zoned for commercial use, on the real estate market and the subsequent contacts with potential buyers from another state who were seeking to start a commercial venture satisfied the government’s burden . . . under § 844(i).”), dismissed on other grounds, 105 F.3d 649 (4th Cir. 1997) (mem.).
9 would for all practical purposes grant the federal government a
general police power, the very danger the Lopez Court warned us
against. See Lopez, 115 S. Ct. at 1632. The aggregate effect of
arsons of private homes may have a substantial effect on interstate
commerce. But if each arson in the aggregation is negligible, the
calculation of their effect becomes speculative in the same way
that the effect of gun possession near schools is speculative. We
are reluctant to tolerate so much speculation. If these
convictions were based only on the house on Polymnia Street, then,
Corona’s and McDonald’s actions might not have a strong enough
connection to interstate commerce to warrant the exercise of
Congress’s commerce power.
Fortunately, we can put off that question for another day. We
find that these convictions comport with the Commerce Clause
because of the fact that the fire spread to the United Cab
warehouse on Carondelet Street. Not only was the Carondelet Street
property actually being rented, but it was serving a commercial
rather than a residential purpose. Indeed, the government elicited
testimony that the building facilitated a business that regularly
offered transportation services to interstate travelers arriving at
New Orleans International Airport. See Katzenbach v. McClung, 379
U.S. 294, 304 (1964) (holding that Title II of the Civil Rights Act
of 1964, 42 U.S.C. § 2000a, is within Congress’s commerce power as
applied to a restaurant that serves interstate travelers).
Whatever effect Lopez may have had on the rule announced in
Russell, we do not think that it went so far as to eliminate from
10 the scope of § 844(i) buildings rented to businesses that provide
transportation to a significant number of out-of-state visitors.
Because of its interest in promoting mobility throughout the
nation, the federal government has an interest in protecting local
commercial transportation offered to the general public.
Consequently, it may criminalize the burning of buildings rented by
cab companies for commercial purposes because those burnings can
have a substantial effect on interstate commerce.2
Corona and McDonald argue that because they did not intend to
burn the warehouse rented by United Cab, they did not “maliciously
damage[] or destroy[]” that building within the meaning of §
844(i). We disagree. In United States v. Gullett, 75 F.3d 941
(4th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 134, 136 L. Ed.
2d 83 (1996), a defendant intended to kill a business associate by
arranging for him to set off an explosive package in his home. The
victim instead triggered the explosion outside of property rented
by the business. The government won an arson conviction even
though the defendant did not intend to harm the building.
Affirming the conviction, the Fourth Circuit held that § 844(i)
uses the word “maliciously” in the same way that common-law courts
2 As the Court indicated in United States v. Robertson, 115 S. Ct. 1732, 1733 (1995) (per curiam), the three Commerce Clause tests utilized in Lopez are analytically distinct. Because we decide this case under Lopez’s “substantial effects” test, we need not decide whether these convictions would survive scrutiny under the test involving “the use of the channels of interstate commerce” or the test involving “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” See Lopez, 115 S. Ct. at 1629.
11 used it: acting “intentionally or with willful disregard of the
likelihood that damage or injury would result.” Id. at 947. We
agree with the Fourth Circuit that the statute’s definition of
“maliciously” includes “wanton and willful burnings without
justification or excuse,” just as the common law’s understanding of
arson did. See John W. Poulos, The Metamorphosis of the Law of
Arson, 51 MO. L. REV. 295, 405 (1986). See also McFadden v. United
States, 814 F.2d 144, 146 (3d Cir. 1987) (holding that Congress
intended § 844(f)’s prohibition on “maliciously” using fire to
damage or destroy government property to extend to acts in willful
disregard of the likelihood of damage). Corona and McDonald could
not have helped knowing that the Carondelet Street property was
only a few feet from the Polymnia Street house. We have no trouble
concluding that they acted in willful disregard of the likelihood
of spreading the fire to the warehouse.
III.
A.
Corona and McDonald argue that their conviction on count three
violates their Fifth Amendment rights because it amounts to a
second, unauthorized punishment for the crimes referred to in
counts one and two. We agree. We hold that, with the possible
exception of cases in which conspirators use fire as a means of
communication, Congress has not authorized three separate
punishments for arson, for conspiracy to commit arson, and for
using fire to commit conspiracy to commit arson.
12 Although both defendants’ sentences on counts one and two are
concurrent, each of the three sentences carries its own $50 special
assessment under U.S.S.G. § 5E1.3. As long as a sentence carries
a mandatory special assessment, it is a separate punishment for
double jeopardy purposes. United States v. Kimbrough, 69 F.3d 723,
729 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1547,
134 L. Ed. 2d 650 (1996). Because of the special assessments,
then, Corona and McDonald were each punished three separate times,
once under each statute.
The government argues that the defendants cannot take
advantage of this doctrine because they did not object to the
special assessments at sentencing. But the defense did not need to
make such an objection to preserve the double jeopardy argument; it
could consistently maintain that multiple punishments should not be
allowed and concede that if multiple punishments are permissible,
the mandatory assessments apply. Preserving the double jeopardy
theory required the defense simply to put the district court on
notice of the nature of its objection. Wallace v. Ener, 521 F.2d
215, 218 (5th Cir. 1975). Furthermore, in contrast to a complaint
about multiplicity in an indictment, “[a] complaint about
multiplicity of sentences . . . can be raised for the first time on
appeal.” United States v. Stovall, 825 F.2d 817, 821 (5th Cir.),
amended, 833 F.2d 526 (5th Cir. 1987).
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
13 punishment, there can be no double jeopardy violation. Missouri v.
Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679 (1983); Albernaz
v. United States, 450 U.S. 333, 336, 101 S. Ct. 1137, 1141 (1981).
But if that inquiry is inconclusive, we apply the interpretive tool
announced in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
180, 76 L. Ed. 306 (1932), which asks “whether conviction under
each statutory provision requires proof of an additional fact which
the other does not.” United States v. Nguyen, 28 F.3d 477, 482
(5th Cir. 1994) (citing United States v. Free, 574 F.2d 1221, 1224
(5th Cir.), cert. denied, 439 U.S. 873, 99 S. Ct. 209, 58 L. Ed. 2d
187 (1978)). Where 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. See United States v.
Davis, 793 F.2d 246, 248 (10th Cir.), cert. denied, 479 U.S. 931,
107 S. Ct. 400, 93 L. Ed. 2d 353 (1986). Determining whether
statutory offenses are separate for double jeopardy purposes
involves parsing the statutes apart from the facts of any
particular case. United States v. Singleton, 16 F.3d 1419, 1422
(5th Cir. 1994).
The prosecution framed these indictments carefully in order to
avoid a more obvious double jeopardy violation. If the predicate
offense in the use-of-fire count had been the arson charged in
count two, those two counts would differ only in name — both would
punish the defendants for burning buildings with an effect on
interstate commerce. The Seventh Circuit has sensibly held that
convictions under § 844(h)(1) and § 844(i) create a double jeopardy
14 violation when the § 844(i) offense is the crime in which the
defendant used fire. United States v. Chaney, 559 F.2d 1094, 1095-
96 (7th Cir. 1977). Neither crime involves an element that the
other does not. Just as one necessarily uses force in committing
robbery, one necessarily uses fire in committing arson. With no
indication from Congress that every arson should be subject to the
five-year3 enhancement set out in § 844(h)(1), the Seventh Circuit
concluded that these counts amount to “‘the same offense’ within
the meaning of the double jeopardy clause because they would be
proved by identical evidence.” Id. at 1096 (citing Brown v. Ohio,
432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)). The
government admits on appeal that Chaney’s analysis would control if
arson had been the predicate of the use-of-fire charge: “The Court
in Nguyen[, 28 F.3d at 485,] indicated that Congress intended
multiple, consecutive punishments for subsections (h) and (i) of
Section 844, as long as the predicate felony for subsection (h) is
not the subsection (i) charge itself” (emphasis added). Cf. United
States v. Fiore, 821 F.2d 127, 130-31 (2d Cir. 1987)
(distinguishing Chaney where mail fraud is the underlying felony in
a use-of-fire conviction).
The only way for the prosecution to evade the sort of
violation found in Chaney was to make count one rather than count
two into the predicate underlying the use-of-fire charge. Instead
3 In 1996, Congress increased the enhancement for first-time offenders to ten years. Antiterrorism and Effective Death Penalty Act of 1996, § 708(a)(3)(A), Pub. L. No. 104-132, 110 Stat. 1214, 1296.
15 of using fire to commit arson, then, the prosecution alleged that
Corona and McDonald used fire to commit conspiracy to commit arson.
We have seen this tactic before. The prosecution in United
States v. Riggio, 70 F.3d 336 (5th Cir. 1995), cert. denied, ___
U.S. ___, 116 S. Ct. 1366, 134 L. Ed. 2d 531 (1996), charged a
defendant with these same three statutory violations after he
consummated his agreement to burn an automobile dealership for
$5,000. Applying the Blockburger test, we held that “conspiracy to
commit arson may serve as the predicate felony for a use of fire
charge.” But the jury in Riggio acquitted the defendant of the §
844(i) arson charge. Indeed, we noted that Chaney did not apply
because “[t]he instant case is different from the situation in
which the defendant is convicted of arson and the use of fire
charge.” Id. at 338 n.10. In the case of Corona and McDonald, by
contrast, the prosecution won convictions on all three counts. Our
question is whether the prosecution’s sleight of hand reflects a
use of § 844(h)(1) that comports with the punishment that Congress
intended for defendants such as Corona and McDonald.
B.
Because the penalty for using fire functions as a statutory
enhancement, the conspiracy count and the arson count do not need
to include an element not included in the use-of-fire count. See,
e.g., Smallwood v. Johnson, 73 F.3d 1343, 1350 & n.9 (5th Cir.),
cert. denied, ___ U.S. ___, 117 S. Ct. 212, 136 L. Ed. 2d 146
(1996); Singleton, 16 F.3d at 1425. But the defendants insist that
the use-of-fire count violates Blockburger because it required the
16 jury to find nothing beyond the combined elements of the conspiracy
and arson counts. The government’s theory at trial was that Corona
and McDonald used fire to commit conspiracy when they started the
fire as an overt act in furtherance of the arson conspiracy. The
indictment specifically listed starting the fire as one of the
overt acts supporting the § 371 charge. The government points out
that combining § 844(h)(1) with a conspiracy charge has been
sanctioned not only by Riggio, but also by the Seventh Circuit in
United States v. Hayward, 6 F.3d 1241, 1246-48 (7th Cir. 1993),
cert. denied, ___ U.S. ___, 114 S. Ct. 1369, 128 L. Ed. 2d 46
(1994), which upheld a conviction for using fire in the commission
of an illegal conspiracy to intimidate on the basis of race by
burning crosses.
If setting the buildings on fire was the only way that Corona
and McDonald could have used fire to commit their conspiracy, their
punishment was unconstitutionally duplicative. The conspiracy and
the arson counts required the jury to find that the defendants
agreed to commit an act in reckless disregard of the danger of
burning a building affecting interstate commerce, that they acted
in furtherance of that agreement, and that their reckless or
intentional actions actually caused the burning of a building
affecting interstate commerce. On the fire-as-overt-act theory,
nothing more need be proved in order to find a violation of §
844(h)(1). Once the jury has found the defendants guilty of arson
and conspiracy to commit arson, it has found them guilty of using
17 fire as part of that conspiracy. That violates Blockburger, and we
presume that Congress did not intend such a result.
Another theory of how the defendants used fire is available,
one that does not depend on equating the fire with an overt act.
In the abstract, the charge of using fire to commit conspiracy to
commit arson could be separate from the conspiracy itself if the
jury were required to find that fire had some role in facilitating
the conspirators’ agreement. The jury in this case, for example,
could conceivably have found that Corona and McDonald communicated
across the Mississippi River by smoke signals or by hanging a
lantern in a belfry. We do not reach the question of whether that
kind of conduct would merit punishment under § 844(h)(1). But the
government would have a colorable argument to that effect. Compare
Hayward, 6 F.3d at 1246-48 (allowing a § 844(h)(1) conviction even
where the fire’s purpose is not to destroy property), with United
States v. Lee, 935 F.2d 952 (8th Cir. 1991) (concluding that §
844(h)(1) does not apply to non-destructive fires), reh’g en banc
granted on other grounds, 6 F.3d 1297 (8th Cir. 1993) (en banc),
cert. denied, ___ U.S. ___, 114 S. Ct. 1550, 128 L. Ed. 2d 199
(1994). In the most technical sense, then, the three convictions
survive the Blockburger test.
The Riggio court did not consider whether one “uses fire” to
commit conspiracy when one uses fire to commit an overt act in
furtherance of the conspiracy. And the Hayward court noted that
the defendants had waived the argument that “[t]he fire was not an
aid in formulating the agreement” because “the federal felony of
18 conspiracy . . . is complete at the time that the agreement is
made.” Hayward, 6 F.3d at 1248 n.9. The same is true in this
case. Because the defendants have not argued the point, we do not
question the government’s premise that § 844(h)(1) permits the
fire-as-overt-act theory.
But even if § 844(h)(1) requires fire to be used as more than
an overt act, we would not allow these sentences to stand.
Although it is possible to speculate that Corona and McDonald used
fire to communicate, there is no evidence that anything of the sort
happened in this case. On these facts, it would be inappropriate
to burden the defendants with the full force of Blockburger’s
abstractions. The government did not contend at trial that the
defendants used fire to agree, and it does not advance anything
like a smoke-signal theory on appeal. The Supreme Court has
recognized that “[t]here may be instances in which Congress has not
intended cumulative punishments . . . , notwithstanding the fact
that each offense requires proof of an element that the other does
not.” Whalen v. United States, 445 U.S. 684, 693 n.7, 100 S. Ct.
1432, 1438 n.7, 63 L. Ed. 2d 715 (1980). And in the past we have
declined to indulge in speculations with no support in the record
in order to get a conviction past the Double Jeopardy Clause. In
United States v. Evans, 854 F.2d 56, 57 n.2 (5th Cir. 1988), for
example, we held that two § 922(a)(6) counts for giving false
information in connection with the purchase of a firearm or
ammunition were duplicative in spite of the fact that “[i]t is . .
. theoretically possible that on each occasion Evans twice
19 separately furnished the Robinett driver’s license.” We noted that
neither the indictment nor the jury instructions required such a
finding and that the government never contended at trial that there
were separate false statements for each count. Id. See also
United States v. Hodges, 628 F.2d 350, 352 (5th Cir. 1980)
(concluding “that appellant illegally received two sentences for
the proof of one crime” because the government did not argue at
trial that the defendant possessed the relevant firearms at
different times or places); United States v. Hernandez, 591 F.2d
1019, 1022 (5th Cir. 1979) (en banc) (finding a double jeopardy
violation where the government used the same evidence to prove both
distribution and possession with intent to distribute under 18
U.S.C. § 841(a)(1)). Evans, Hodges, and Hernandez, unlike this
case, concerned multiple punishments under a single statute. See
Gore v. United States, 357 U.S. 386, 391, 78 S. Ct. 1280, 1284, 2
L. Ed. 2d 1405, 1409 (1958) (distinguishing single- from multiple-
statute cases). Nevertheless, they spring from a concern that the
prosecution’s creative pleading can lead to unauthorized multiple
punishment. Without any hint from the government that Corona and
McDonald used fire as a medium of communication, we will not allow
that theory to serve as a basis for the government’s contention
that these § 844(h)(1) convictions comport with Congress’s intended
application of the statute.
C.
When we find duplicative sentences, we vacate the offending
sentences and remand with instructions that the government may
20 elect which counts to dismiss in order to bring the sentences into
compliance. United States v. Brechtel, 997 F.2d 1108, 1112 (5th
Cir.), cert. denied, 510 U.S. 1013, 114 S. Ct. 605, 126 L. Ed. 2d
570 (1993); United States v. Goff, 847 F.2d 149, 172 (5th Cir.),
cert. denied, 488 U.S. 932, 109 S. Ct. 324, 102 L. Ed. 2d 341
(1998). In this case, the 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(i) and § 371 can stand because both the conspiracy count and
its predicate offense require an element that the other does not.
See United States v. Felix, 503 U.S. 378, 389, 112 S. Ct. 1377,
1384, 118 L. Ed. 2d 25 (1992). 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.
IV.
Corona and McDonald were each represented by different counsel
at trial. Although Corona was and is represented by a federal
public defender, he managed to hire private counsel to represent
McDonald and Stock, the at-large defendant. McDonald’s trial
counsel withdrew after filing a notice of appeal, and McDonald
obtained a new attorney. On the strength of Cuyler v. Sullivan,
21 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333
(1980), he contends before us that the fact that his trial counsel
was being paid by Corona created an actual conflict of interest
that requires us to grant him a new trial. Specifically, McDonald
explains that his trial counsel asked McDonald on the stand about
Corona’s behavior after the fire in a way that suggested that
Corona was not privy to the plot. He also suggests that his
counsel’s decision to have McDonald testify was motivated by his
interest in decreasing the chances that Corona would be convicted.
McDonald inaccurately describes his trial counsel’s situation
as “multiple representation.” Unlike the defense counsel in
Cuyler, who had professional duties to three co-defendants,
McDonald’s attorney had an obligation to pursue only McDonald’s
interests at trial. V.J. Stock was not present, and McDonald does
not suggest that the concurrent duties to McDonald and Stock
created any actual conflict. The fact that Corona paid McDonald’s
counsel does not mean that he represented Corona. See Model Rules
of Professional Conduct Rule 1.8(f) (allowing lawyers to accept
compensation from third parties).
In some circumstances, we have required trial judges to hold
Garcia hearings when they know of an actual conflict of interest.
See, e.g., United States v. Greig, 967 F.2d 1018, 1022 (5th Cir.
1992) (remanding for a Garcia hearing where defense counsel
committed serious ethical breaches that put him “in the position of
simultaneously having to defend himself as well as his client
regarding their potentially criminal activity”). We afford this
22 protection to criminal defendants to ensure that they have made an
informed waiver of the right to conflict-free counsel. See United
States v. Garcia, 517 F.2d 272 (5th Cir. 1975).
We cannot find any reason why the district court should have
been alerted to any conflict of interest here. McDonald’s direct
examination was hardly calculated to exonerate Corona. And the
fact that McDonald testified on his own behalf was not sufficient
to put the court on notice that something might be amiss.
McDonald’s testimony disclosed that his counsel received payment
from Corona, but that by itself does not establish a conflict of
interest. As far as the court was concerned, McDonald could have
declined Corona’s assistance and accepted appointed counsel if he
thought his counsel would be disloyal.
In essence, then, McDonald is simply arguing that he received
ineffective assistance of counsel. But he did not make this
argument at trial. “[A] claim of ineffective assistance of counsel
cannot be resolved on direct appeal unless it has been first raised
before the district court.” United States v. Bounds, 943 F.2d 541,
543-44 (5th Cir. 1991). As in Bounds, McDonald can press his
ineffective-assistance claim under 28 U.S.C. § 2255.
V.
Finally, McDonald challenges the sufficiency of the evidence
on all three counts. Criminal convictions are supported by
sufficient evidence “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
23 to the jury’s verdict and drawing all reasonable inferences from
the evidence to support the verdict.” United States v. Mmahat, ___
F.3d ___, ___, 1997 WL 52191, at *8 (5th Cir. 1997).
The government’s evidence that the fire was caused by an
arsonist was overwhelming: a parade of experts explained their
various reasons for concluding that someone had burned the Polymnia
Street house intentionally. An eyewitness placed McDonald at the
scene within a minute of the fire. Suzanne Guidroz testified that
she had seen McDonald on several occasions before and had a chance
to confirm his identity when he walked to the United Cab building
to place a telephone call. Investigators testified that he showed
up the next morning at the property. McDonald admits that he lied
to these investigators when they asked him about the blaze. See
United States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984) (“False
exculpatory statements may be used . . . as substantive evidence
tending to prove guilt.”). According to Ms. Guidroz, McDonald and
Stock were acting in concert to prepare the house for the fire.
Based on this evidence, a reasonable jury could conclude that,
beyond a reasonable doubt, McDonald agreed to burn down the
Polymnia Street house and carried out that agreement. See United
States v. Ruiz, ___ F.3d ___, ___, 1997 WL 49333, at *5-*8 (1st
Cir. 1997) (upholding arson and conspiracy convictions on
circumstantial evidence, including the likelihood that the
defendants were lying); United States v. Utter, 97 F.3d 509, 512
(11th Cir. 1996) (finding the evidence of arson sufficient where
the evidence showed that the fire was intentional, that the
24 defendant had a motive, and that the defendant had talked about
setting the property on fire).
VI.
Corona’s and McDonald’s convictions comport with the Commerce
Clause and are supported by sufficient evidence. Their sentences,
however, violate the Double Jeopardy Clause. We vacate the
sentences on all three counts and remand this case to the district
court so that the government can dismiss one of the counts and the
court can impose new sentences. McDonald’s claim of ineffective
assistance of counsel is dismissed without prejudice.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.