United States Court of Appeals

Fifth Circuit

FILED

December 17, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-31170

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ELIZABETH BOYETT SMITH,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

m 01-CR-348-1-N

_________________________

Before SMITH, BARKSDALE, and CLEMENT,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

A jury found Elizabeth Smith guilty of arson,mailfraud, conspiracy, witnesstampering,

and the use of fire in the commission of a

felony. She raises five claims of trial error and

contends that the district court misapplied the

sentencing guidelines and that part of her

sentence violatesthe double jeopardyclause of

the Fifth Amendment. Finding only harmless

error with respect to one evidentiary issue, we

affirm.

I.

The underlying facts have their origin in a

scene familiar to many households: A mother

asks her son to perform a simple chore, he refuses, and she ends up having to hire one of

the kids from the neighborhood to do the job
2

instead. Although ordinarily this would not

land anyone in federal prison, it is also not the

typical mother who would ask her son to set

fire to a motel. Smith did just that. Motivated

by a desire to collect on a $325,000 insurance

policy,she asked herson,Johnathon Williams,

to set fire to a motel she owned. When he

refused, Smith turned to Josh Booty, a family

friend, and offered to buy him a truck if he

would burn down the motel. 

Acting under Smith’s direction, Booty borrowed a truck fromWilliams’sroommate, Anthony Turnley, and drove to the motel, where

he used a set of keys given to him by Smith to

enter the unoccupied motel,spread gasoline in

several of its bedrooms, and set them (and

nearly himself) on fire. Though damaged by

the fire, the motel was not completely destroyed. Smith, meanwhile, created an alibi for

herself by driving to another city with her

husband, Spencer Smith. She later made statements to the FBI, the insurance company, and

the grand jury accusing, among others, the fire

chief, mayor, and former police chief ofsetting

the fire.

It did not take long for these well-laid plans

to go up in smoke. When Booty returned the

truck to Turnley that night, he was carrying a

revolver, his eyebrows were singed, and he

“reeked like a barn fire.” Startled by Booty’s

appearance, Turnley asked Booty what he had

used the truck for, and was told about the fire

and Smith’s role in planning it. 

The next day, after Turnley found the gas

cans Booty had left in the bed of his truck,

Turnley’sfather called the fire department and

turned over the cans as evidence. That started

an investigation in which Turnley and Booty

cooperated with the Bureau of Alcohol, Tobacco and Firearms(“ATF”) by tape recording

numerous conversations between themselves

and Smith in which she acknowledged her role

in the conspiracy and cover-up. The government prosecuted Smith on the basis of those

tapes and the testimonyofBooty, Turnley, and

Spencer Smith. A jury returned a verdict of

guilty on all seven counts.1

II.

Smith claims a new trial is warranted by the

jury’s potential exposure to extrinsic evidence.

At the beginning of the trial, the government

provided jurors with a binder containing transcripts of the surveillance tapes it planned to

introduce into evidence. One of those transcripts, detailing a statement Williams made to

the ATF, was for a tape that the government

did not introduce into evidence. During its

deliberations, however, the jury sent a note to

the court asking to see a copy of “Johnathon’s

Statement to ATF,” indicating it at least was

aware of the existence of the extrinsic evidence. 

The court refused the request, explaining

that the tape was not evidence that could be

used in deliberations. At no time did the

transcript enter the jury room. On this basis,

Smith argues that the verdict is tainted by an

exposure to improper evidence and that the

district court abused its discretion in denying

her motion for a new trial without questioning

the jurors on their exposure to the transcript.

1 The seven counts are (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);

(3) mail fraud, in violation of 18 U.S.C. § 1341;

(4) use of fire to commit a felony, in violation of 18

U.S.C. § 844(h); and (5)-(7) three counts of

witness tampering, in violation of 18 U.S.C.

1512(b).
3

We review only for abuse of discretion a

court’s handling of complaints of outside influence on the jury. United States v. Sylvester,

143 F.3d 923, 931 (5th Cir. 1998). “In granting a broad discretion to the trial judge, we

acknowledge and underscore the obvious, that

the trial judge is in the best position to evaluate accurately the potential impact of the complained-of outside influence.” United States v.

Ramos, 71 F.3d 1150, 1153-54 (5thCir.1995).

The initial presumption that the jury is impartial can be overcome by evidence that an

extrinsic factual matter affected deliberations.

United States v. Kelley, 140 F.3d 596, 608

(5th Cir. 1998).

The district court did not err in denying

Smith’s motion without first questioning the

jurors on their exposure to the transcript. A

district court is not required to conduct a

“full-blown evidentiary hearing in every instance in which an outside influence is brought

to bear upon a petit jury.” Ramos, 71 F.3d at

1153. Rather, the court “must balance the

probable harm resulting from the emphasis

such action would place upon the misconduct

and the disruption involved in conducting a

hearing against the likely extent and gravity of

the prejudice generated by the misconduct.”

Id.; United States v. Bernard, 299 F.3d 467,

476-77 (5th Cir. 2002), cert. denied, 123 S.

Ct. 2572, and cert. denied, 123 S. Ct. 2572

(2003). The court is not required to conduct

an investigation into claims of exposure that

are merely speculative. Kelley, 140 F.3d at

608.

There is scant evidence that the jury was

exposed to the contents of the transcript. The

jury was aware at least of the existence of the

transcript; otherwise, it could not have known

specifically to request a copy of “Johnathon’s

Statement to ATF.” This much, however, is

explained by the fact that the transcripts in the

jurors’ binders were separated and identified

by tabs, one of which was visibly labeled

“Johnathon’s Statement 2.” Moreover, on

multiple occasions, trialtestimonyrefersto the

fact that Williams spoke with ATF agents. As

a result, the mere fact that the jury was aware

of the existence of the transcript does not

prove that any individual juror read, or was

exposed to, the contents of the transcript. 

In addition, there is no reason to believe

that the jury had meaningful exposure to the

evidence contained in the transcript. In denying a new trial, the court detailed the procedures it had used to limit the jury’s access to

the transcripts:

The jury was never afforded the opportunity to turn to that transcription . . . and

read only the transcript of the statements

whichwere contemporaneouslyplayed 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 recording, the jurors placed

their books oftranscripts down beside their

seats as instructed at the outset, and turned

their attention to evidence emanating from

the witness stand.

Smith does not dispute these facts and instead

suggests only one possible opportunity by

which a juror could have seen and read Williams’s statement. This is mere speculation

that does not trigger the requirement of a

broader investigation.2 Id.

2 Needless to say, the government’s practice of

handing out intended exhibits en masse before in-

(continued...)
4

Because Smith has shown that the jurors

were at least minimally exposed to the transcript, inasmuch as they knew the statement

wasin their binders, we must consider whether

that exposure had a prejudicial effect on the

verdict. Smith argues that it is the government’s burden to prove that the exposure was

harmless. Although this was once the law of

the circuit, see, e.g., United States v. Luffred,

911 F.2d 1011, 1014 (5th Cir. 1990), it is no

longer the case that any intrusion on the jury,

no matter how slight, creates a rebuttable presumption of prejudice to the defendant. In

Sylvester, 143 F.3d at 932-34, we recognized

that Smith v. Phillips, 455 U.S. 209 (1982),

and United States v. Olano, 507 U.S. 725

(1993), undermined the presumption of prejudice.3

 Consistent with our longstanding rule

that a district court is entitled to discretion in

investigating and resolving charges of jury

tampering, we held in Sylvester, 143 F.3d at

934, that “only when the court determinesthat

prejudice is likely should the government be

required to prove its absence.”

To exercise this discretion properly, a district court must examine the complained-ofintrusion on the jury and determine whether it is

of a nature and degree that is likely to have a

prejudicial effect. In some cases, the intrusion

will be as serious as that in Remmer v. United

States, 347 U.S. 227 (1954), in which the

Court held that an attempt to bribe a jury foreman was presumptively prejudicial to the defendant. At the other end of the spectrum are

cases like the present one, in which the defendant can do no more than show that the jury

improperly learned of the existence of a transcript, but nothing of its contents. Given such

a de minimis intrusion on the jury, it is not an

abuse of discretion for the district court to require some evidence of a prejudicial effect before burdening the government with a requirement that it prove the intrusion harmless.

The district court did not abuse its discretion in finding that Smith was unable to make

a colorable showing of prejudice. Unlike the

situation in Luffred, 911 F.2d at 1015, on

which Smith heavily relies, the transcript of

Williams’s statement did not make it into the

jury room and could not have been referenced

during deliberations. In addition, the evidence

inWilliams’sstatement waslargelycumulative

of testimony that was properly before the

jury.4 Smith is not entitled to a new trial on

this ground.

III.

Smithraisestwo challengesto the evidence.

She arguesfirst that the district court committed reversible error by overruling an objection

to the government’s cross-examination of

Spencer Smith. We review evidentiary rulings

for abuse of discretion. United States v.

Sprick, 233 F.3d 845, 852 (5th Cir. 2000).

Even if we find error, rulings are subject to the

harmless error balancing test. United States v.

Parker, 133 F.3d 322, 328 n.3 (5thCir. 1998);

United States v. Pace, 10 F.3d 1106, 1116

(5th Cir. 1993).

2

(...continued)

troducing them into evidence is risky.

3 One court of appeals has reached the same

conclusion. See United States v. Williams-Davis,

90 F.3d 490, 496-97 (D.C. Cir. 1996); but see

United States v. Dutkel, 192 F.3d 893, 896 (9th

Cir. 1999).

4 Williams’sstatement was relevant only to corroborate Booty’s claim that the fires were set at

Smith’s behest, and this was sufficiently done by

Williams’s confirmation, in a separate audiotape

and transcript admitted into evidence, that Smith

had first asked him to set the fires.
5

During cross-examination, the government’s attorney asked Spencer Smith: “Are

you aware that two weeks ago, your wife

called Keisha and Meredith [and] asked if they

would testify today that Josh Booty was at

Kristenwood on January 23rd, as late as 8:00

o’clock?” Spencer Smith responded: “Yes.”

Because the question was asked in this form,

it was impossible for the jury to determine

whether Spencer Smith was testifying solely

that the phone call occurred, or whether he also was confirming the government’s allegation

that the purpose of the call was to affect

testimony. The defendant properly objected

on the ground that this compound question assumed facts not in evidence, and the objection

should have been sustained.5

Nevertheless, the error was made harmless

by subsequent questioning. Spencer Smith indicated in response to one question that he

was aware his wife had made the calls, and in

response to another that he thought she was

merely “trying to get some answers.”6 The

error is also rendered harmless beyond a reasonable doubt by the overwhelming evidence

ofdefendant’s complicityinthe arson, conspiracy, and subsequent cover-up. Much of the

evidence comes in the form of her own taperecorded statements and therefore is highly

reliable.7

Smith’s remaining evidentiary issue is also

without merit. She contends that one of the

government’s experts offered an opinion that

exceeded the pre-trial disclosure mandated by

FED. R. CRIM. P. 16(a)(1)(G) and that the district court should have remedied this violation

by striking the offending testimony. A district

court’s remedies for alleged discovery

violations are reviewed for abuse of discretion.

United States v. Katz, 178 F.3d 368, 369 (5th

Cir. 1999). 

The expert, ATF agent Daniel Hebert, testifiedthat it was more likely that several plastic

water jugs discovered near the motel had been

5 One prominent treatise explains the rule

against asking questions that assume facts not in

evidence: “A common vice is for the examiner to

couch [a] question so that it assumes as true matters to which the witness has not testified, and

which are disputed between the parties . . . .

[W]hether the witness is friendly or hostile, the

answer can be misleading. If the witness answers

thequestionwithoutseparating out the assumption,

it is impossible to determine whether the

assumption was ignored or affirmed.” MCCORMICK ON EVIDENCE § 7 (5th ed. 1999).

6 Smith mistakenly asserts that the improper

questioning denied her the right to cross-examine a

person with personal knowledge of the contents of

the phone call, and thus rises to the level of a

constitutional violation. This contention is erron-

(continued...)

6

(...continued)

eous, for Smith’s solicitation of perjury is itself a

verbal act, not hearsay. See, e.g., United States v.

Villareal, 764 F.2d 1048, 1050 n.2 (5th Cir.

1985); Morgan v. State, 741 So. 2d 246, 257

(Miss. 1999). Spencer Smith’s testimony was,

therefore, competent evidence.

7

 At oral argument, Smith argued for the first

time that this question also improperly introduced

evidence of a prior bad act of the defendant, in violation of FED R. EVID. 404(b). Because Smith did

not object on this basis at trial, our review is only

for plain error. United States v. Duffaut, 314 F.3d

203, 209 (5th Cir. 2002); FED. R. EVID. 103(d).

Insofar asthe question focuses on Smith’s attempts

further to cover up the crime, the district court

would not have plainly erred in concluding that the

question sought evidence relating to the pending

conspiracy charge and not to a prior bad act.
6

planted as evidence than used in the arson,

because they were in too good a condition to

have been sitting outside during the three

months before their discovery. The jugs also

still smelled faintly of gasoline, which Hebert

testified was unlikely to be the case if they had

last contained gasoline at the time ofthe arson.

This evidence was relevant to prove

Smith’s role in the conspiracy. In April 2001,

she contacted Hebert, claiming to have

“discovered” the jugs in the grass behind the

motel. She did not realize, at that time, that

the ATF had already tape recorded numerous

conversations in which she castigated Booty

for leaving the gas cans used in the arson in

Turnley’struck. In those tapes, Smith blamed

herself for not telling Booty to throw the cans

into the swamp. The government argued that

she planted the water jugs at the scene, incriminating herself in the conspiracy.

CharacterizingHebert’stestimonyas anexpert opinion on gasoline dissipation rates, defense counsel objected and asked that the

testimony be struck. Rather than grant that

request, the court interrupted the examination

of Hebert to permit a voir dire inquiry into the

basis of the witness’s opinion. This eliminated

the risk ofsurprise and allowed defense counsel to obtain Hebert’s admission that he could

notsay, with any specificity, when the gas cans

were placed at the scene. The district court’s

remedy therefore was no abuse of discretion.8

IV.

Smith challenges the district court’s

conclusion that the motel is a “dwelling”

within the meaning of U.S.S.G. §

2K1.4(a)(1)(B). She apparently concedes that

the motel would be a dwelling while occupied,

but argues that it ceased to be a dwelling

during the three-month seasonal vacancy

during which the arson took place. An

interpretation of the sentencing guidelines is a

question of law that we review de novo.

United States v. Sanders, 343 F.3d 511, 520

(5th Cir. 2003).

In a matter offirst impression in this circuit,

we agree with the government and several of

our sister circuits that a hotel room counts as

a “dwelling” within the meaning of §

2K1.4(a)(1)(B), regardless of whether it is

occupied at the time of the crime.9 Black’s

Law Dictionary defines a dwelling in

connection with the crime of arson as, in

relevant part, “an enclosed space, permanent

or temporary, in which human beings usually

stay, lodge, or reside.”10 A motel room easily

fits this definition.

The only question, therefore, is whether the

nature of the motel as a dwelling changed during its three-month seasonal vacancy. Smith,

8 Two other issues raised by Smith are meritless. Contrary to her claims, the government did

not misstate the evidence in its closing argument.

In addition, insofar as we have found Smith’s other

allegations of error to be lacking, she was not

prejudiced by an accumulation of harmless errors.

9 See United States v. Ray, 245 F.3d 1256,

1257 (11th Cir. 2001); United States v. McClenton, 53 F.3d 584, 587 (3d Cir. 1995); see also

United States v. Barker, 208 F.3d 215 (table),

2000 U.S. App. LEXIS 3666, at *5-*7 (6th Cir.

Mar. 7, 2000) (unpublished) (holding that it was

not plain error to conclude that an occupied motel

is a dwelling for purposes of the sentencing guidelines).

10 See BLACK’S LAW DICTIONARY 524 (7th ed.

1999) (quoting 5 AM. JUR. 2D Arson and Related

Offenses § 13, at 789 (1995)).
7

relying on United States v. Jackson, 22 F.3d

583 (5th Cir. 1994), argues that § 2K1.4(a)-

(1)(B) should not apply here, because Booty

knew the motel was unoccupied and that the

arson posed correspondingly little risk of danger to an inhabitant. In Jackson, we refused to

apply a portion of the sentencing guidelines

that defines burglary of a dwelling as a “crime

of violence,” on the ground that the burglary

took place in a building that had been vacant

for seven years. “Logically, whether by

vacancy, physicaldeterioration, altered use, or

otherwise, a point in time exists at which a

dwelling loses its character as a residence and

becomes a ‘mere’ building.” Jackson, 22 F.3d

at 585.

There is, however, a marked difference between the seven-year abandonment of the

building in Jackson and the three-month

seasonal vacancy of the motel. Whatever the

“point in time” at which a building’s core nature is altered, it was not reached in just three

months, particularly in light of the fact that the

motel would again be occupied by visitors in

the near future. Moreover, unlike the

circumstance in Jackson, our interpretation of

“dwelling” in § 2K1.4(a)(1)(B) does not require us to find that the arson posed a

substantial risk of death or serious bodily

injury to another.11 Rather, the guideline may

be applied either if there is a risk of serious

injury or if the arson involved the destruction

of a dwelling. Accordingly, the district court

did not err in concluding that the motel was a

dwelling within the meaning of § 2K1.4(a)-

(1)(B).

V.

Smith contends her sentence violates the

double jeopardy clause of the Fifth

Amendment. This is a question of law, so we

review it de novo. United States v.

Kimbrough, 69 F.3d 723, 728 (5th Cir. 1995).

When a defendant challenges multiple punishments for the same conductSSrather than

multiple prosecutionsSSour double jeopardy

analysis turns on whether Congress has

authorized the result at issue. If Congress has

enacted statutes that separately punish the

same conduct, there is no double jeopardy

violation. Missouri v. Hunter, 459 U.S. 359,

368-69 (1983); United States v. Prestenbach,

230 F.3d 780, 782 n.9 (5th Cir. 2000). Where

that inquiry proves inconclusive, we disregard

intent and determine “whether conviction

under each statutory provision requires proof

of an additionalfact which the other does not.”

United States v. Corona, 108 F.3d 565, 572

(5th Cir. 1997) (quoting United States v. Nguyen, 28 F.3d 477, 482 (5th Cir.1994)). Where

punishment is assessed under three or more

statutoryprovisions, each offensemustrequire

proof of a fact that is not part of the sum of

the elements necessary to prove the other two

offenses. Id.; see also Blockburger v. United

States, 284 U.S. 299 (1932).

Smith relies on Corona to challenge her

concurrent sentences for (1) arson under 18

U.S.C. § 844(i); (2) conspiracy to commit

arson and mail fraud under 18 U.S.C. § 371;

and (3) use of fire to commit a felony under 18

U.S.C. § 844(h)(1). In Corona, 108 F.3d at

573, we held that the Double Jeopardy Clause

was violated by a sentence issued under the

11 In Jackson, the court observed that “the idea

that ‘whenever a private residence is broken into,

there is always a substantial risk that force will be

used’” is a critical element of the conclusion that

the burglary of a home is a “crime of violence”

within the meaning of U.S.S.G. § 4B1.2(a)(2).

Jackson, 22 F.3d at 585 (quoting United States v.

Flores, 875 F.2d 1110, 1113 (5th Cir.1989)).
8

same three statutes where the predicate felony

in the use of fire count is a conspiracy to commit arson. Citing Blockburger, we observed

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.” Id. 

The government’s first response, that Corona was “limited . . . to its particular facts” by

a subsequent panel, istotally meritless. Just as

no subsequent panel of this court is free, absent intervening Supreme Court decisions, to

overrule the decisions of another panel, no

panel is empowered to hold that a prior

decision applies only on the limited facts set

forth in that opinion. Moreover, the case cited

by the government, United States v. Nguyen,

117 F.3d 796, 797 n.1 (5th Cir. 1997) (per

curiam), does not purport to do anything more

than distinguishCorona in a case arising out of

different statutes. We are unable to do the

same, because Corona and the present dispute

arise under 18 U.S.C. §§ 371, 844(h)(1), and

844(i).

Nevertheless, even under the Blockburger

analysis employed in Corona, there is no

double jeopardy violation here. The critical

difference between this case and Corona is

that the superseding indictment charged this

defendant with the use of fire to commit mail

fraud under 18 U.S.C. § 1341 and use of fire

in furtherance of the conspiracy to commit

arson and mail fraud under § 371. This cures

the double jeopardy problemfound inCorona,

because it requiresthe government to prove an

additional fact, in the use-of-fire count, that is

not an essential element of either the arson or

the conspiracy.

We agree with our sister circuits that it

does not violate double jeopardy to convict of

both arson and the use of fire to commit mail

fraud.12 Each of these offenses contains a

unique fact not required by the other offense:

Arson requires the attempted destruction of a

building, and the use of fire to commit a felony

violation of § 1341 requires the use of the

mails to defraud another. Thus, the common

requirement that fire be used for the § 844-

(h)(1) use-of-fire count and the § 844(i) arson

count does not constitute double jeopardy.

From this, it also follows that the double

jeopardy clause is not violated by Smith’ssentence, because each statute requires proof of

an element not found in the others. Arson, under § 844(i), requires the use of fire to destroy

a building. Conspiracy to commit arson under

§ 371 requires an agreement to use fire to destroy a building. And, finally, the use of fire to

commit mail fraud under §§ 844(h)(1) and

1341 requires the use of fire to defraud

someone through the mails. Because the §

1341 mailfraud charge can be satisfied with or

without the use of fire, and it requires proof of

facts not required by the other statutes, it does

not violate double jeopardy to punish for arson, conspiring to commit arson, and using fire

to commit mail fraud.

The only remaining consideration is whether our conclusion is affected by the fact that

count 4 ofthe indictment allegesthe use offire

to commit mail fraud and conspiracy because,

under Corona, arguably it would violate

double jeopardy to punish the defendant for

the use of fire in connection with the con12 See United States v. Zendeli, 180 F.3d 879,

886 (7th Cir. 1999); United States v. Fiore, 821

F.2d 127, 130-31 (2d Cir. 1987).
9

spiracy.13 The government’s decisions on how

to charge do not taint do not taint the overall

analysis here, however, because the jury found

that Smithcommitted bothunderlying felonies,

and the burning of the motel was central to the

government’s arguments for each. Count 1

lists the burning of the motel as one of the

overt acts of the conspiracy, and count 3 lists

the arson as part of the scheme to create a

false insurance claim. As a result, the use-offire count is adequately supported by the

felony of mail fraud, even if not by the

conspiracy.14

AFFIRMED.

13 We say “arguably” only because the government made the issue even more complicated by

charging that fire was used to commit a “conspiracy to commit mail fraud and arson,” and Corona

does not prohibit a conviction on the use of fire to

commit a mail fraud conspiracy.

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.