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

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### E LIZABETH 

### B OYETT 

### S MITH



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana



### m 01-CR-348-1-N

_________________________

Before S MITH , B ARKSDALE , and C LEMENT

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

A jury found Elizabeth Smith guilt y of arson, mail fraud, con s piracy, witness tampering,

and the use of fire i n t he 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 violates the double jeopardy clause of

t he 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 t o hire one of

the kids from the neighborhood to do the job2

instead. Although ordinarily this would not

land anyone in federal prison, it is also not the

typical mother who would ask her s on to set

fire to a motel. Smith did just that. Motivated

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

policy, she asked her son, Johnathon Williams,

t o set fire to a motel she owned. When he

refused, Smith turned to Josh Booty, a family

friend, and offered t o buy him a truck if he

would burn down the motel.

Acting under Smith’s direction, Booty borrowed a truck from Williams’s roommate, 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) o n fire. Though damaged by

the fire, the motel was not c o mpletely 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 of setting

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 Turn ley found the gas

cans Booty had left in the bed of his truck,

Turnley’s father called the fire department and

turned over the cans as evidence. That started

an investigation in which Turnley and Boo t y

cooperated with the Bureau of Alcohol, Tobacco and Firearms (“ATF”) by tape recording numerous convers a tions between themselves

and Smith in which she acknowledged her role

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

tapes and the testimony of Booty

, Turnley, and

Spencer Smit h. 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 surve illance 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 governm ent

did not introduc e 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 ex t rinsic evidence.

The court refused the request, explain ing

that the tape was not evidence that could be

used in deliberations. At no time did t he

t ranscript enter the jury room. On this basis,

Smith argues that the verdict is tain t ed by an

exposu re 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 violatio n 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) thr ee counts of

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

1512(b).3

We revi e w only for abuse of discretion a

court’s handling of complaints o f outside influence on the jury. U

nited States v. Sylvester

, 143 F.3d 923, 931 (5th Cir. 1998). “In granting a broad discretion to th e t rial 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.” U nited States v.

Ramos

, 71 F.3d 1150, 1153-54 (5th Cir.1995).

The initial presumption that the jury is impartial can be over co me 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 thei r exposure to the transcri pt. 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.” R amos

, 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 genera t ed by the misconduct.”

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

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

, 123 S.

Ct. 2572, and cert. denie d , 123 S. Ct. 2572

(2003). The court is not required to conduct

an investigation into claims of exposure that

are merely sp eculative. K elley

, 140 F.3d at

608.

T h ere 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

j uro rs’ binders were separated and identified

by tabs, on e o f which was visibly labeled

“Johnathon’s Statement 2.” Moreover, on

mult iple occasions, trial testimony refers to the

fact that Williams spoke with ATF agents. As

a result, the mere fact that the jury was aware

of t he existence of the transcript does not

prove that an y individual juror read, or was

exposed to, the contents of the transcript.

In addition, there is no reason to b elieve

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 t o

the transcripts:

The jury was never afforded the opportunity to turn to th at transcri pti on . . . 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 boo ks at the beginning

of a recordi ng, to turn to the appropriately

tabbed transcript and to read along. At the

end of each recording, the jur ors pl aced

their books of transcripts 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 opportuni ty by

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

that does not tr igger the requirement of a

broader investigation. 2 Id.

2 Needless to say, the government’s practice of

handing out intende d exhibits en masse before in-

(continued...)4

Because Smith has shown that the j urors

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

was in their binders, we must consider whether

that exposure had a prejudic ial effect on the

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

harm less. 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. Phillip s

, 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

inves t igating and resolving charges of jury

tampering, we held in S

ylvester , 143 F.3d at

934, that “only when the court determines that

prejudice is likely should the government be

required to prove its absence.”

To exercise this discretion properly, a district court must examine the complained-of intrusion 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 t he 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 discret ion in finding that Smith was unable to make

a colorable showing o f prejudice. Unlike the

situation in Luffred

, 911 F. 2d at 1015, on

which Smith heavily relies, the transcript of

Williams’s statem

ent did not make it into the

jury room and could not have been referenced

during deliberations. In addition, the evidence

in Williams’s statement was largely cumulative

of testimony that was properly before the

jury. 4 Smit h is not entitled to a new trial on

this ground.

III.

Smith raises two challenges to the evidence.

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

to the gov ernment’s cross-examination of

Spencer Smith. We review evidentiary rulings

for ab use of discretion. U nited States v.

Sprick

, 233 F.3d 845, 8 52 (5th Ci r. 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 (5th Cir. 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 s ame

conclusion. S ee United States v. Williams-Davis

, 90 F.3d 490, 4 96-97 (D.C. Cir. 1996); b ut see

United States v. Dutkel

, 19 2 F.3d 893, 896 (9th

Cir. 1999). 4 Williams’s statement was relevant only to corroborate Booty’s claim that the fires were set at

Sm ith’s behest, and this was sufficiently done by

W illiams’s confirmation, in a separate audio tape

and transcript a dmitted into evidence, that Smith

had first asked him to set the fires.5

During cross-exami n ation, the government’s attorney asked Spencer Smit h: “Are

you aware that two weeks ago, your wife

called Keisha and Meredith [and] asked if they

w o uld testify today that Josh Booty was at

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

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

Beca use the question was asked in this form,

it was impossible for the jury to determine

whether Spencer S m ith was testifying solely

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

that the pu rpo se of the call was to affect

testimony. The defendant properly object ed

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 t o one questi on that he

was aware his wife had made the calls, and in

response t o another that he thought she was

merely “trying to get some ans wers.” 6 The error is also rendered harmless beyond a reasonable doubt by the overwhelming evidence

of defendant’s complicity in the arson, conspiracy, and subsequent cover- up. Much of the

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

reliable. 7

Smith’s remaining evidentiary issue is also

without merit. She contends t hat one of the

g overnment’s experts offered an opinion tha t

exceeded the pre-trial disclosure mandated by

F ED

. R. C RIM

. 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, test ified that it was more likely that several plastic

water jugs discovered near the motel had been

5 One prominent trea tise 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 witnes s has not testified, and

which are disputed between the parties . . . .

[W]hether the witness is friendly o r hostile, the

answer can be misleading. If the witness answers

the question without separating out the ass u mption,

it is impossible to determine whet her the

assumption was ignored or affirmed.” M C C OR

MICK ON E VIDENCE § 7 (5th ed. 1999).

6 Smith mi s takenly asserts that the improper

questioning denied her the right to cross-examine a

person with personal knowledge of the contents of

the pho ne 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. S ee, e.g.

, United States v.

Villareal

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

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

(Mis s. 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 F ED R. E VID

. 404(b). Because Smith did

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

for plain error. U

nited States v. Duffaut

, 314 F.3d

203, 209 (5 th Cir. 2002); F E D

. R. E VID

. 103(d).

Insofar as the question focuses on Smith’s attempts

fu rther to cover up the crime, the district court

would not have plainly erred in concluding that the

que stion 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

sit t ing outside during the three

months before t heir discovery. The jugs also

still smelled faint ly of gasoline, wh ich Hebert

testified was unlikely to be the case if they had

last contained gasoline at the time of the arson.

This evidence was relev a nt to prove

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

she co nt acted Hebert, claiming to have

“disc o vered” 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 casti gated Booty

for leaving the gas cans used in the arson in

Turnley’s truck. In those tapes, Smith blamed

herself for not t elling Booty to throw the cans

into the swamp. The government argued that

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

Characterizing Hebert’s testimony as an expert opinion on gasoline dissipation rates, defense counsel objected and aske d 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 of surprise and allowed defense counsel to obtain Hebert’s admission that he could

not say, 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 t he district court’s

conclusion

t hat 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 d welling

duri ng the three-month seasonal vacancy

dur i ng which the arson took place. An

interpretation of the sentencing guidelines is a

question of law that we r e view de novo

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

(5th Cir. 2003).

In a matter of first 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

oc cupied at the time of the crime. 9 Black’s

L aw Dictionary defines a dwelling in

connection with the crime o f 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 ev i dence 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 Uni ted States v. Ray , 245 F.3d 1256,

1257 (11th Cir. 2001); U nited States v. McClenton

, 53 F .3d 584, 587 (3d Cir. 1995); s ee also

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

2000 U.S. App. LEXI S 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 B LACK ’ S L AW D ICTIONARY 524 (7th ed.

1999) (quoting 5 A

M

. J UR

. 2 D 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, beca use Booty

knew the motel was unoccup ied and that the

arson posed correspondingly little risk of danger to an inhabitant. In J

ackson

, we refused to

apply a porti on 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

fo r seven years. “Logically, whether by

vacancy, physical deterioration, altered use, or

otherwise, a point in time exists at which a

dwelling loses its character as a residence and

becomes a ‘mere’ building.” J ackson

, 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 visito rs in

the near future. Moreover, unlike the

circumstance in Jackson

, our interpretation of

“dwe lling” 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 viol a tes the

double jeopardy

clause of t he Fift h

Amendment. This is a question of law, so we

review it de novo

. U nited States v.

Kimbrough

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

When a defendant challenges mult iple punishments fo r t he same conduct 

### S S rather than

mult iple prosecutions 

### SS

our d o uble jeopardy

analysis turns o n whether Congress has

authorized the result at issue. If Congress has

enacted statutes t h at separately punish the

same conduct, there is no double je opardy

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 convi c tion

under each statutory provision requires proof

of an additional fact which the other does not.”

United States v. Coron a , 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 th ree or m ore

statutory provisions, each offense must require

proof of a fact t hat 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 Co rona t o challenge her

concurrent sentences for (1) arson un d er 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 C orona

, 108 F.3d at

573, we held that the Double Jeopardy Clause

was vio lated 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 burglar y of a home is a “crime of violence”

within the mea ning 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 B lockburger

, we observed

that “[o]nce the jury has found the defendants

gui lt y o f 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 “limit

ed

. . . to its particular facts” by

a subsequent panel, is totally meritless. Just as

no subse quent panel of this court is free, absent intervening Supreme Court deci sions, to

overrule the decisions of another pane l, no

panel is empowered to hold tha t a pri or

decision appli es only on the limited facts set

forth in that opinion. Moreover, the case cited

by the governmen t, U

nited States v. Nguyen

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

curiam), does not purport to do anything more

than distinguish Corona in a case arising out of

different statutes. We are unable to do t he

same, because Corona and the present dispute

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

844(i).

Nevertheless, even un der the B lockburger

analysis employed in C orona

, there is no

doub le jeopardy violation here. The critical

differ ence between this case and C orona is

t hat the superseding indictment charged t his

defendant with the use of fire to commit mail

fraud under 18 U.S.C. § 134 1 and use of fire

in furtherance of the conspiracy t o commit

arson and mail fraud under § 371. This cures

the double jeopardy problem found in Corona

, because it requires the 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 circuit s that i t

does not violate double jeopardy to convict of both arson and the use of fire to commit mail

fraud. 12 Each of these offenses cont ains 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’s sentence, because each statute requir es 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 defr aud

someone through the mails . Because the §

1341 mail fraud 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 of the indictment alleges the use of fire

to commit mail fraud and conspiracy because,

under Corona

, arg uably it would violate

doubl e 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); U

nited 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 Smith committed both underlying felon i es,

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 co unt is adequately supported by the

felony of mail f

raud, 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 th a t 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.